[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
H.R. 312, ``MASHPEE WAMPANOAG TRIBE RESERVATION REAFFIRMATION ACT'';
H.R. 375, 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; AND DISCUSSION DRAFT OF H.R. ____,
``RESPECT ACT''
=======================================================================
LEGISLATIVE HEARING
BEFORE THE
SUBCOMMITTEE ON INDIGENOUS PEOPLES OF THE UNITED STATES
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
Wednesday, April 3, 2019
__________
Serial No. 116-11
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
___________
U.S. GOVERNMENT PUBLISHING OFFICE
35-971 PDF WASHINGTON : 2019
COMMITTEE ON NATURAL RESOURCES
RAUL M. GRIJALVA, AZ, Chair
DEBRA A. HAALAND, NM, Vice Chair
GREGORIO KILILI CAMACHO SABLAN, CNMI, Vice Chair, Insular Affairs
ROB BISHOP, UT, Ranking Republican Member
Grace F. Napolitano, CA Don Young, AK
Jim Costa, CA Louie Gohmert, TX
Gregorio Kilili Camacho Sablan, Doug Lamborn, CO
CNMI Robert J. Wittman, VA
Jared Huffman, CA Tom McClintock, CA
Alan S. Lowenthal, CA Paul A. Gosar, AZ
Ruben Gallego, AZ Paul Cook, CA
TJ Cox, CA Bruce Westerman, AR
Joe Neguse, CO Garret Graves, LA
Mike Levin, CA Jody B. Hice, GA
Debra A. Haaland, NM Aumua Amata Coleman Radewagen, AS
Jefferson Van Drew, NJ Daniel Webster, FL
Joe Cunningham, SC Liz Cheney, WY
Nydia M. Velazquez, NY Mike Johnson, LA
Diana DeGette, CO Jenniffer Gonzalez-Colon, PR
Wm. Lacy Clay, MO John R. Curtis, UT
Debbie Dingell, MI Kevin Hern, OK
Anthony G. Brown, MD Russ Fulcher, ID
A. Donald McEachin, VA
Darren Soto, FL
Ed Case, HI
Steven Horsford, NV
Michael F. Q. San Nicolas, GU
Matt Cartwright, PA
Paul Tonko, NY
Vacancy
David Watkins, Chief of Staff
Sarah Lim, Chief Counsel
Parish Braden, Republican Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES
RUBEN GALLEGO, AZ, Chair
PAUL COOK, CA, Ranking Republican Member
Darren Soto, FL Don Young, AK
Michael F. Q. San Nicolas, GU Aumua Amata Coleman Radewagen, AS
Debra A. Haaland, NM John R. Curtis, UT
Ed Case, HI Kevin Hern, OK
Matt Cartwright, PA Vacancy
Vacancy Rob Bishop, UT, ex officio
Vacancy
Raul M. Grijalva, AZ, ex officio
------
CONTENTS
----------
Page
Hearing held on Wednesday, April 3, 2019......................... 1
Statement of Members:
Cole, Hon. Tom, a Representative in Congress from the State
of Oklahoma................................................ 6
Cook, Hon. Paul, a Representative in Congress from the State
of California.............................................. 5
Gallego, Hon. Ruben, a Representative in Congress from the
State of Arizona........................................... 2
Prepared statement of.................................... 3
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 9
Prepared statement of.................................... 10
Keating, Hon. William R., a Representative in Congress from
the Commonwealth of Massachusetts.......................... 7
Statement of Witnesses:
Baird, Hon. Jessie Little Doe, Vice Chairwoman, Mashpee
Wampanoag Tribe, Mashpee, Massachusetts.................... 11
Prepared statement of.................................... 13
Fletcher, Matthew, Professor of Law and Director of the
Indigenous Law & Policy Center, Michigan State University
College of Law, East Lansing, Michigan..................... 56
Prepared statement of.................................... 58
Ray-Hodge, Vanessa L., Partner, Sonosky, Chambers, Sachse,
Mielke & Brownell, LLP, Albuquerque, New Mexico............ 52
Prepared statement of.................................... 54
Richards, Claire, Executive Counsel to the Governor, State of
Rhode Island, Providence, Rhode Island..................... 41
Prepared statement of.................................... 43
Routel, Colette, Professor of Law, Mitchell Hamline School of
Law, St. Paul, Minnesota................................... 24
Prepared statement of.................................... 25
Questions submitted for the record....................... 33
Washburn, Kevin, Professor of Law, University of Iowa College
of Law, Iowa City, Iowa.................................... 16
Prepared statement of.................................... 18
Questions submitted for the record....................... 23
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 139
Cicilline, David and Langevin, James, Representatives from
the State of Massachusetts, Testimony for the Record in
Opposition................................................. 78
Mashpee Chamber of Commerce, Support Letter.................. 72
Mashpee Office of Town Manager, Support Letter............... 73
Town of Mashpee, Support Letter.............................. 74
City of Taunton, Office of the Mayor, Support Letter......... 75
City of Taunton, Mayor Thomas Hoye, Testimony in Support..... 76
Taunton Area Chamber of Commerce, Support Letter............. 77
Submissions for the Record by Rep. Keating
Akiak Native Community, Support Letter................... 79
Apache Alliance, Support Letter.......................... 80
ATNI--Affiliated Tribes of Northwest Indians, Support
Letter................................................. 81
Big Valley Band of Pomo Indians, Support Letter.......... 82
Cheyenne River Sioux Tribe, Support Letter............... 83
Chippewa Cree Tribe of the Rocky Boy's Reservation,
Support Letter......................................... 84
Ft. Sill--Chiricahua--Warm Springs Apache Tribe, Support
Letter................................................. 85
Grand Traverse Ottawa and Chippewa Indians, Support
Letter................................................. 86
Guidiville Indian Rancheria, Support Letter.............. 87
Hualapai Tribe, Support Letter........................... 88
Jena Band of Choctaw Indians, Support Letter............. 89
Lac Vieux Desert Band of Lake Superior Chippewa, Support
Letter................................................. 90
Lower Brule Sioux Tribe, Support Letter.................. 91
Mashantucket Pequot Tribe, Support Letter................ 92
Massachusetts Congressional Delegation, Support Letter... 93
Massachusetts Senate, Nick Collins, Support Letter....... 95
Massachusetts Senate, Minority Leader, Bruce Tarr,
Support Letter......................................... 96
Massachusetts State Rep. Bradley Jones, Support Letter... 97
Massachusetts State Rep. Shaunna O'Connell, Support
Letter................................................. 98
Massachusetts State Rep. David Vieira, Support Letter.... 99
Mayflower Descendants, Society of, Support Letter........ 100
Mechoopda Indian Tribe, Support Letter................... 101
Midwest Alliance of Sovereign Tribes, Support Letter..... 102
Mohegan Tribe, Support Letter............................ 103
NAFOA, Support Letter.................................... 104
Narragansett Indian Tribe, Support Letter................ 105
Narragansett Indian Tribe, Chief Stanton, Testimony in
Support................................................ 106
National Congress of American Indians, Support Letter.... 111
National Congress of American Indians, Testimony in
Support................................................ 112
National Indian Gaming Association, Support Resolution... 115
Native American Rights Fund, Support Letter.............. 116
New England Residents, Support Petition.................. 117
Nez Perce Tribe, Support Letter.......................... 118
Oneida Nation, Support Letter............................ 119
Otoe Missouria Tribe of Indians, Support Letter.......... 120
Pascua Yaqui Tribe, Support Letter....................... 121
Prairie Island Indian Community, Support Letter.......... 122
Pyramid Lake Paiute Tribe, Support Letter................ 123
Rocky Mountain Tribal Leaders Council, Support Resolution 124
San Carlos Apache Tribe, Support Letter.................. 125
Shinnecock Indian Nation, Support Letter................. 126
Spirit Lake Tribe, Support Letter........................ 127
St. Croix Chippewa Indians of Wisconsin, Support Letter.. 128
Stockbridge-Munsee Community, Support Letter............. 129
Suquamish Tribe, Support Resolution...................... 130
Sycuan Band of Indians, Support Letter................... 131
Tohono O'odham Nation, Legislative Council, Support
Resolution............................................. 132
Tonto Apache Tribe, Support Letter....................... 133
USET--United South and Eastern Tribes, Support Letter.... 134
USET--United South and Eastern Tribes, Testimony in
Support................................................ 135
Ute Indian Tribe, Support Letter......................... 137
Waccamaw Indian Tribe, Support Letter.................... 138
Yankton Sioux Tribe, Support Letter...................... 139
LEGISLATIVE HEARING ON H.R. 312, TO REAFFIRM THE MASHPEE WAMPANOAG
TRIBE RESERVATION, AND FOR OTHER PURPOSES, ``MASHPEE WAMPANOAG TRIBE
RESERVATION REAFFIRMATION ACT''; H.R. 375, 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; AND
DISCUSSION DRAFT OF H.R. ____, TO PRESCRIBE PROCEDURES FOR EFFECTIVE
CONSULTATION AND COORDINATION BY FEDERAL AGENCIES WITH FEDERALLY
RECOGNIZED INDIAN TRIBES REGARDING FEDERAL GOVERNMENT ACTIVITIES THAT
IMPACT TRIBAL LANDS AND INTERESTS TO ENSURE THAT MEANINGFUL TRIBAL
INPUT IS AN INTEGRAL PART OF THE FEDERAL DECISION-MAKING PROCESS,
``RESPECT ACT''
----------
Wednesday, April 3, 2019
U.S. House of Representatives
Subcommittee on Indigenous Peoples of the United States
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 2:31 p.m., in
room 1324, Longworth House Office Building, Hon. Ruben Gallego
[Chairman of the Subcommittee] presiding.
Present: Representatives Gallego, San Nicolas, Haaland,
Grijalva; Cook, Young, and Gosar.
Also present: Representatives Cole and Keating.
Mr. Gallego. Thank you everybody. The legislative hearing
by the Subcommittee for Indigenous Peoples will come to order.
The Subcommittee is meeting today to hear testimony on three
bills: H.R. 312, H.R. 375, and discussion draft of the RESPECT
Act. H.R. 312, sponsored by Representative Bill Keating, the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act reaffirms
the trust status of the lands of the Mashpee Wampanoag Tribe in
Massachusetts.
H.R. 375, sponsored by Representative Tom Cole, would amend
the Indian Reorganization Act of 1934 to give the Secretary of
the Interior the power to take land into trust for all tribes
regardless of the date of the tribe's recognition. This is
known as the Clean Carcieri Fix.
The discussion draft of the RESPECT Act, sponsored by
Chairman Raul Grijalva codifies tribal consultation procedures
for all Federal agencies to follow. It establishes standards,
guarantees that meaningful and effective tribal consultation
occurs when Federal agencies are planning activities that
impact tribes, and provides judicial recourse for tribes when
agencies violate their consultation obligation.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chairman and the Ranking Minority
Member, therefore I ask unanimous consent that all other
Members' opening statements be made part of the hearing record
if they are submitted to the Subcommittee Clerk by 5 p.m.
today, or the close of the hearing, whichever comes first.
Hearing no objections, so ordered.
I now ask unanimous consent that Representative Cole,
Representative Keating, and Representative Gosar, who is not
here but will be joining us, have permission to sit on the dais
and participate in the hearing if they wish. So ordered.
HON. RUBEN GALLEGO, A REPRESENTATIVE IN CONGRESS FROM THE STATE
OF ARIZONA
Mr. Gallego. Good morning to you all, and a warm welcome to
all of our witnesses here today. Today, we are examining
legislation that addresses two issues at the heart of tribal
sovereignty and self-governance: tribes' ability to take land
into trust and tribal consultation. The acquisition of trust
land for the benefit of Indian tribes is essential to tribal
self-determination, economic development, and the protection of
tribal lands for generations to come. This is why the Carcieri
Supreme Court decision has been so disturbing to Indian
Country.
For over eight decades, the Department of the Interior,
under both Republican and Democratic administrations, had
consistently construed the Indian Reorganization Act to
authorize the placement of land into trust for any tribe, so
long as that tribe is federally recognized at the time of the
trust application.
However, in 2009, the Supreme Court held in Carcieri v.
Salazar that only tribes that were under Federal jurisdiction
in 1934 were eligible to place land into trust, effectively
creating a two-tiered system for trust land acquisition.
The uncertainty caused by this decision continues to
threaten tribal sovereignty to this day. A legislative fix is
necessary to ensure that we are fulfilling one of our country's
most important obligations to Indigenous communities.
H.R. 375 is that fix. I want to thank the sponsor of the
legislation, our colleague from Oklahoma, Mr. Cole, for
introducing this bill and for testifying here today. Enacting
H.R. 375 would restore clarity and stability for all federally
recognized tribes, regardless of their date of recognition.
One Carcieri consequence that many tribes have faced in the
aftermath of the decision is frivolous lawsuits on land that
they have had in trust for years. One such tribe is the Mashpee
Wampanoag of Massachusetts.
Like many tribes, for centuries after Europeans came to
this continent, the Mashpee were intentionally and
systematically rendered landless by state and Federal
Governments. They have fought long and hard since that time to
re-establish that which was taken from them--a homeland. They
did that just in 2015 when the Interior Department approved
their application to take 320 acres into trust for the tribe.
In 2016, however, a suit was filed in Federal court that
challenged Interior's action based on the Carcieri decision.
Although the Obama Department of Justice initially sought to
defend Mashpee land in an appeal, in May 2017, the Trump DOJ
inexplicably withdrew that appeal. Then on September 7, 2018,
Interior issued its first Carcieri decision, stripping the
tribe of its reservation, resulting in the removal of the 2015
trust land from the Mashpee territory.
The legal limbo imposed by this decision has left the
Mashpee on the brink of disillusion. The Mashpee's relationship
with the Federal Government is one of the oldest in the United
States, dating back to when the Pilgrims landed at Plymouth
Rock. I think it is a particularly sad statement that 400 years
later they still have to defend against the attack on their
lands.
H.R. 312 would reaffirm the trust status of the Mashpee
lands and ensure that these types of attacks on their homeland
do not continue. I want to thank the sponsor of this
legislation, the gentleman from Massachusetts, Mr. Keating, for
being here to testify.
Finally, we come to the issue of tribal consultation. All
of us here understand the importance of ensuring effective,
meaningful consultation with tribal governments before the
Federal Government takes actions impacting tribal communities.
However, time and time again, we have heard from tribes about
the problems with the current consultation framework--namely,
that there really isn't one.
Consultation processes and procedures differ wildly from
agency to agency and sometimes from region to region within the
same agency. The result is a myriad of consultation procedures
of varying effectiveness, and sometimes no meaningful
consultation at all. Consultation requirements should be clear
and should have the force of the law.
The RESPECT Act would codify a process for government-to-
government tribal consultation and give tribes legal recourse
when they are denied access to this process. I want to thank
Chairman Grijalva for his tireless work on this issue and I
look forward to discussing the proposed legislation with him
and our witnesses.
[The prepared statement of Mr. Gallego follows:]
Prepared Statement of the Hon. Ruben Gallego, Chair, Subcommittee for
Indigenous Peoples of the United States
Good morning to you all, and a warm welcome to all our witnesses
here today. Today, we are examining legislation that addresses two
issues at the heart of tribal sovereignty and self-governance: tribes'
ability to take land into trust and tribal consultation. The
acquisition of trust land for the benefit of Indian tribes is essential
to tribal self-determination, economic development, and the protection
of tribal lands for generations to come. This is why the Carcieri
Supreme Court decision has been so disturbing to Indian Country.
For over eight decades, the Department of the Interior, under both
Republican and Democratic administrations, had consistently construed
the Indian Reorganization Act to authorize the placement of land into
trust for any tribe, so long as the tribe is federally recognized at
the time of the trust application.
However, in 2009, the Supreme Court held in Carcieri v. Salazar
that only tribes that were ``under federal jurisdiction'' in 1934 were
eligible to place land into trust--effectively creating a two-tiered
system for trust land acquisition.
The uncertainty caused by Carcieri continues to threaten tribal
sovereignty to this day. A legislative fix is necessary to ensure that
we are fulfilling one of our country's most important obligations to
Indigenous communities.
H.R. 375 is that fix. I want to thank the sponsor of the
legislation, our colleague from Oklahoma, Mr. Cole, for introducing
this bill and for testifying here today. Enacting H.R. 375 would
restore clarity and stability for all federally recognized tribes,
regardless of their date of recognition.
One Carcieri consequence that many tribes have faced in the
aftermath of the decision is frivolous lawsuits on land that they have
had in trust for years. One such tribe is the Mashpee Wampanoag of
Massachusetts.
Like many tribes, for centuries after Europeans came to this
continent, the Mashpee were intentionally and systemically rendered
landless by state and Federal Governments. They have fought long and
hard since that time to re-establish that which was taken from them: a
homeland. They did just that in 2015, when the Interior Department
approved their application to take 320 acres into trust for the Tribe.
In 2016, however, a suit was filed in Federal court that challenged
Interior's action based on the Carcieri decision. Although the Obama
Department of Justice initially sought to defend Mashpee's land in an
appeal, in May 2017, the Trump DOJ inexplicably withdrew the appeal.
Then, on September 7, 2018, Interior issued its first Carcieri
decision stripping a tribe of its reservation, resulting in the removal
of the 2015 trust land from Mashpee territory.
The legal limbo imposed by this decision has left the Mashpee on
the brink of dissolution. The Mashpee's relationship with the Federal
Government is one of the oldest in the United States, dating back to
when the Pilgrims landed at Plymouth Rock. I think it's a particularly
sad statement that 400 years later they still have to defend against
attacks on their lands.
H.R. 312 would reaffirm the trust status of Mashpee lands and
ensure that these types of attacks on their homeland do not continue. I
want to thank the sponsor of the legislation, the gentlemen from
Massachusetts, Mr. Keating, for being here today to testify.
Finally, we come to the issue of tribal consultation. All of us
here understand the importance of ensuring effective, meaningful
consultation with tribal governments before the Federal Government
takes actions impacting tribal communities. However, time and time
again, we have heard from tribes about the problems with the current
consultation framework--namely, that there really isn't one.
Consultation processes and procedures differ widely from agency to
agency, and sometimes from region to region within an agency. The
result is a myriad of consultation procedures of varying
effectiveness--and sometimes no meaningful consultation at all.
Consultation requirements should be clear and should have the force of
law.
The RESPECT Act would codify a process for government-to-government
tribal consultation and give tribes legal recourse when they are denied
access to this important process. I want to thank Chairman Grijalva for
his tireless work on this issue, and I look forward to discussing the
proposed legislation with him and our witnesses.
I would now like to recognize the Ranking Member, Mr. Cook, for his
opening statement.
______
Mr. Gallego. I would now like to recognize the Ranking
Member, Mr. Cook, for his opening statement.
STATEMENT OF HON. PAUL COOK, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF CALIFORNIA
Mr. Cook. Thank you, Mr. Chairman. I want to apologize for
being late. I was on the way over and I got run down in a
crosswalk by some guy with Alaskan plates.
[Laughter.]
Mr. Cook. So, I continued my journey, hobbled up here and
so once again, I am always certainly cognizant of the time
constraints.
As you mentioned, the Subcommittee will receive testimony
today on two bills and a draft bill. And from the outset, I
want to express my support for H.R. 375 and H.R. 312 because
they bring all tribes, including the Mashpee Tribe, onto an
even footing with all the other tribes for having land acquired
in trust under the Indian Reorganization Act of 1934.
Section 5 of the Indian Reorganization Act--and I have in
here the IRA, I am sorry, the Irish in me, I think that is a
very dangerous phrase, but I will go with the flow--it
authorizes the Secretary of the Interior to acquire any
interest in land or water to be held in trust for an Indian
tribe now under Federal jurisdiction. In 2009, the Supreme
Court resolved the lawsuit, resolved by Rhode Island Governor
Carcieri, holding that the tribe now under Federal jurisdiction
refers only to those tribes that were under the Federal
jurisdiction of the United States when the Indian
Reorganization Act was enacted in 1934.
H.R. 375, sponsored by Mr. Cole, would reverse the Supreme
Court ruling through an amendment to the Indian Reorganization
Act. This bill would provide that any federally recognized
Indian tribe, regardless of its status when the IRA was enacted
in 1934, may have lands taken in trust under the authority of
the subject Act. This bill creates certainty for tribal
government that wish to use their lands for economic
development and other tribal purposes.
The second bill, H.R. 312, sponsored by our colleague from
Massachusetts--and he is still gloating over the two wins that
they had in baseball and football, but we won't mention that--
Mr. Keating, looks to ratify and confirm previous actions, made
by the Secretary of the Interior during the Obama
administration, to acquire land in trust for the Mashpee Tribe,
just as Mr. Cole's bill aims to do for all tribes.
The Mashpee Tribe, one of the two federally recognized
tribes in Massachusetts, was granted Federal recognition by the
Department of the Interior in 2007, but its status has since
been challenged due to the ruling. These two bills, H.R. 375
and H.R. 312, would put many tribes on the pathway to better
health, better education and great self-reliance, a goal shared
by tribes, by the Federal Government, and I hope by everyone in
this room.
The Federal Government has charged itself with moral
obligations of the highest responsibility and trust toward
tribes. It has quoted in the Seminole Nation v. United States
1942--and Congressman Young, I was not born then, I was born
much later and I won't share that information with you--by
allowing the impacts of the Carcieri decision to stand without
remedy. For a decade, Congress has abandoned the trust
responsibility for many tribes by allowing the impacts of that
decision to stand without remedy for a decade.
Congress, both Republicans and Democrats, have abandoned
that trust responsibility for many tribes. The solution here
demands more than grandstanding. It is a complex issue--boy, I
could underscore that--that demands our attention and diligence
to get it right. Taking land into trust is perhaps the most
important tool for tribes to improve the lives of their
members, provides to them the modicum of the resources that the
United States took from them through the deliberate policies of
discrimination, forced relocation and other humiliations during
the darkest periods of American history in tribal relations.
The final bill is one that is sponsored by the Chair and
this would prescribe procedures between Federal agencies--and
I'm being gaveled down I guess--thank you, Mr. Chairman for my
abbreviated remarks.
Mr. Gallego. I apologize, Ranking Member Cook, that was
just in jest.
Mr. Cook. I was just going to praise the Chair.
Mr. Gallego. Well, we don't need that. I thank you, Ranking
Member Cook.
Now I would like to welcome distinguished Members of
Congress who wish to testify on the bills they have sponsored.
First, I welcome our colleague from the great state of
Oklahoma, Representative Cole, to speak on his bill, the Clean
Carcieri Fix, H.R. 375.
Next, we have the honorable gentleman from the Commonwealth
of Massachusetts, Representative Keating, to testify on behalf
of his legislation, H.R. 312, which would reaffirm to protect
the Mashpee Tribal Reservation.
And last, by no means least, the Chairman of the Natural
Resources Committee, Representative Grijalva from Arizona, who
will speak to his proposed tribal consultation legislation, the
RESPECT Act.
Thank you, sirs, for your testimony. Mr. Cole and Mr.
Keating, you are welcome to join us on this dais and ask
questions of the witnesses, but I know you have a very busy
schedule so we understand if you must leave us.
I would now like to recognize Representative Cole for 5
minutes.
STATEMENT OF HON. TOM COLE, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF OKLAHOMA
Mr. Cole. Chairman Gallego, Ranking Member Cook, and
members of the Committee, thank you for giving me the
opportunity to testify. I appreciate you holding today's
hearing on H.R. 375, legislation that would amend the Indian
Reorganization Act of 1934, and reaffirm the authority of the
Secretary of the Interior to take land into trust for Indian
tribes.
Between the passage of the Dawes Act in 1887 and the
passage of the Indian Reorganization Act in 1934, the Indian
land mass in the United States shrank by 86 million acres.
Since the enactment of that law, the Department of the Interior
has taken back only approximately 9 million acres of land into
trust status. Tribes have used their trust lands to build
community facilities such as schools, health centers and
housing that served their tribal members. This land is also
used for tribal enterprises and promotes economic development
in communities that are often underserved and poverty stricken.
In 2009, the Supreme Court of the United States overturned
long-existing precedent in its decision on Carcieri v. Salazar.
The Supreme Court rules specifically that the Secretary's
authority to hold land in trust for tribal governments under
the Indian Reorganization Act was limited only to recognized
tribes ``now under Federal jurisdiction'' with the word ``now''
meaning June 18, 1934, the date of the enactment of the Indian
Reorganization Act.
Previously, lower courts viewed the word ``now'' as the
instant when the Secretary invoked their trust acquisition
authority. However, the Supreme Court reversed lower courts'
ruling on how the term ``now,'' ``now under Federal
jurisdiction,'' Section 19 of the Indian Reorganization Act,
was to be interpreted. It found that the phrase refers only to
those tribes that were under the Federal jurisdiction of the
United States when the Indian Reorganization Act was enacted in
1934. As a result of the Carcieri decision, the Secretary of
the Interior may no longer use the Indian Reorganization Act to
acquire trust land for any post-1934 tribe without specific
authorization from Congress.
Because the Secretaries acquired lands in trust for dozens
of tribes recognized after 1934, the Carcieri ruling calls into
question the validity of the trust status of such lands and
jeopardizes their immunity from state and local taxation and
regulatory jurisdiction. Many tribes have been forced into
court to defend the status of their trust land, costing them
millions of dollars and compromising their investments and
jurisdiction.
H.R. 375 would amend the Indian Reorganization Act and
clarify the language of the Supreme Court ruled upon by
striking the term I previously referenced and inserting the
words ``effective beginning on June 18, 1934.'' It would also
amend the statute language from ``any recognized tribe now
under Federal jurisdiction'' to ``any federally recognized
Indian tribe.'' The modest changes clarify that the Secretary
does have the authority to take land into trust for any tribe
that the Federal Government has recognized.
As a member of the Chickasaw Nation and co-chair of the
congressional Native Caucus with my good friend, your fellow
Committee Member, Representative Haaland, I commend the
Subcommittee for moving forward with this legislation and
certainly its willingness to address this important issue.
Thank you very much, Mr. Chairman, and I am prepared to
answer any questions at the appropriate time.
Mr. Gallego. Thank you, Representative Cole. Now we will
have Representative Keating from Massachusetts for 5 minutes.
STATEMENT OF HON. WILLIAM R. KEATING, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF MASSACHUSETTS
Mr. Keating. Thank you, Mr. Chairman. And in terms of your
opening remarks, Ranking Member Cook, don't be sorry for the
Irish in you. It is a badge of honor.
Thank you, Chairman Gallego, Ranking Member Cook, the
distinguished members of the Committee for inviting me to speak
today about H.R. 312, the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act.
As you know, this bipartisan legislation would direct the
Department of the Interior to keep 320 acres of Mashpee
Wampanoag land in southeastern Massachusetts in trust as
federally recognized reservation land. The Mashpee Wampanoag
Tribe has called southern New England their home for more than
12,000 years. Many of us know them as the tribe that welcomed
the Pilgrims to Plymouth, Massachusetts for the first
Thanksgiving. Sadly, like so many Native Americans, the Mashpee
Wampanoags have experienced a long, tragic history of
injustices, injustices that continue to this day.
After a decade's long legal battle, the Mashpee Wampanoag
Tribe finally won Federal recognition from the Department of
the Interior in 2007. This distinction granted long overdue
access to important Federal resources that are now vital to the
tribe's existence. The tribe leverages its Federal support to
provide adequate housing, offer employment opportunities and
operate numerous essential services including law enforcement,
native language learning, pre-K education, health care,
counseling and many other things.
In further recognition of their important place in our
history, in September 2015, the Department of the Interior
supported the Mashpee Wampanoag's Tribe in their plan to
acquire land in Taunton, Massachusetts with the goal of placing
into a Federal trust. However, as this Committee understands
better than most, the Supreme Court's interpretation of the
Indian Reorganization Act of 1934 in Carcieri v. Salazar
resulted in great uncertainty for Native American tribes around
the country. Like many others, the Mashpee Wampanoag Tribe's
Federal recognition was placed at grave risk.
Additionally, in September 2018, the Department of the
Interior decided to reverse course and end its support for the
Mashpee Wampanoag Tribe in an ongoing legal challenge to the
status of its Taunton Reservation. This reversal has exposed
the tribe to the unprecedented fate of having their land taken
out of Federal trust. To this day, they remain the only
federally recognized tribe in New England for which Congress
has not acted to create and protect a reservation.
It is for these reasons that H.R. 312 is so important. This
legislation draws on precedents set by this House in both the
113th and 115th Congresses to lift the Carcieri cloud over
Mashpee Wampanoag's Tribe's existence and direct the Department
of the Interior to consider them fully recognized for the
purposes of the Indian Reorganization Act. This would ensure
the Department can retain the Mashpee land in trust without
issue or challenge providing safety and security at a time when
the tribe finds itself on the brink of extinction.
Under normal circumstances, legislation like H.R. 312 would
pass the House without a hint of opposition. In the 113th
Congress, the Gun Lake Trust Land Reaffirmation Act received
overwhelming support by both parties. In the 115th Congress,
the Thomasina E. Jordan Tribes of Virginia Federal Recognition
Act passed unanimously by voice vote. Both of these Acts became
law, each under a different president's administration.
Unfortunately, due to economic factors outside the tribe's
control, the Mashpee Wampanoag's status has become needlessly
contentious. Put simply, the state of Rhode Island has decided
that protection of their casino revenue is more important than
the long-term existence of the Mashpee Wampanoag Tribe.
The opposition to H.R. 312 is grounded in the belief that
Rhode Island's decision to build near the Massachusetts State
line should grant them territorial rights that extend over that
border and into the Commonwealth of Massachusetts. Nothing in
legislation grants a tribe any special permissions pertaining
to the construction of the casino. H.R. 312 would not grant the
Mashpee Wampanoag any new or special rights. It merely ensures
that the Mashpee Wampanoag Tribe is treated equally alongside
other Native American tribes and is no longer vulnerable to
having its land taken out of trust.
It is important to note that the Massachusetts State
Government has already approved a casino development in the
region regardless of whether the tribe operates it or not.
Rhode Island knows full well that a private developer has bid
for a separate project just up the road from the tribe's
reservation. A casino is coming to southeastern Massachusetts
no matter what, so why deal a death blow to this tribe?
Mr. Chairman, Mr. Ranking Member, thank you for this timely
hearing. As you know, the Mashpee Wampanoag Tribe finds
themselves in an extremely dire and uncertain situation as the
Federal recognition sits in limbo. Time is of the essence.
Also, I ask for unanimous consent to introduce into the
record 54 documents in support of H.R. 312, including a letter
from the entire Massachusetts House Delegation urging support
for an issue entirely within Massachusetts borders. These
materials also include support from individual tribes from
around the entire country, tribal coalitions, local government,
local business organizations, and members of the Massachusetts
State Legislature.
To paraphrase one of the letters in these materials I place
before you, our country would not be what it is without the
help of the Mashpee Wampanoag Tribe providing the Mayflower
passengers help nearly 400 years ago. Today, we must do our
part to honor the Mashpee Wampanoag legacy and take one small
step toward returning the favor.
I thank the Committee and I yield back.
Mr. Gallego. Thank you, Representative Keating. And now we
will have Chairman Raul Grijalva.
STATEMENT OF HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you, Mr. Chairman. The goals of the
legislation are simple and straightforward: effective,
meaningful tribal consultation as a matter of law. This has
been a top priority since I came to Congress.
This bill originally came out of the frustration and
obstacles that tribes have faced when it comes to agency
actions that affect tribes. It came out of conversations and
meetings I had with tribal leaders over the years, where I
heard of the issues that arise between tribes and the Federal
Government when tribes are not respected as the sovereign
nations that they are.
Congress has never established standards for the Federal
Government to follow when it takes actions that affect tribal
communities, despite the fact that this is part of our trust
responsibility. As the Chairman stated, the current lack of a
unified framework has a myriad of consultation procedures, each
different from agency to agency, and the process is even more
cumbersome when multiple agencies are involved. And much too
often, Federal agencies have already decided on a course of
action and then consult with tribes by simply notifying them of
that agency decision.
Much of the confusion and conflict between the Federal
Government and Indian tribes can be traced back to a lack of
clear guidelines for meaningful consultation. The legislation
sets forth detailed procedures for the timing, format,
implementation, and documentation of executive agency
consultation with tribes.
It also protects sensitive tribal information, such as the
location of sacred sites and other details of cultural and
religious practices, and instructs agencies to recognize tribal
sovereignty and minimize agency involvement in tribal affairs.
Finally, it provides judicial recourse for tribes when
Federal agencies fail to fulfill their consultation obligation.
Promoting meaningful government-to-government consultation will
create long-lasting efficiencies, reduce project delays, help
avoid legal battles, and help fulfill the legal obligations of
the Federal Government by ensuring tribal nations have a voice
at the table.
There is a reason this is a discussion draft at this time.
I want to hear from the experts on the issue and Indian Country
on the best way to implement this proposal. As I have said
before, the ideas for Indian Country come from Indian Country,
and as such, I look forward to a good discussion on the
legislation, to hear the thoughts and ideas from our witnesses
and others.
I want to thank you, Mr. Chairman, for bringing this item
up, and I yield back the remainder of my time.
[The prepared statement of Mr. Grijalva follows:]
Prepared Statement of the Hon. Raul M. Grijalva, Chair, Committee on
Natural Resources
Thank you, Mr. Chairman.
The goals of my bill are simple and straightforward--effective,
meaningful tribal consultation as a matter of law. This has been one of
my top priorities since I came to Congress.
This bill originally came out of the frustration and obstacles that
tribes have faced when it comes to agency actions that affect tribes.
It came out of the conversations I had with tribal leaders over the
years, where I heard of the issues that arise between tribes and the
Federal Government when tribes are not respected as the sovereign
nations they are.
Congress has never established standards for the Federal Government
to follow when it takes actions that affect tribal communities, despite
the fact this is part of our trust responsibility.
As the Chairman stated, the current lack of a unified framework has
in a myriad of consultation procedures--each different from agency to
agency, and the process is even more cumbersome when multiple agencies
are involved. And much too often, Federal agencies have already decided
on a course of action and then ``consult'' with tribes by simply
notifying them of the agency decision.
Much of the confusion and conflict between the Federal Government
and Indian tribes can be traced back to a lack of clear guidelines for
meaningful consultation. The legislation sets forth detailed procedures
for the timing, format, implementation, and documentation of executive
agency consultation with tribes.
It also protects sensitive tribal information, such as the location
of sacred sites and other details of cultural and religious practices,
and instructs agencies to recognize tribal sovereignty and minimize
agency involvement in tribal affairs.
Finally, it provides judicial recourse for tribes when Federal
agencies fail to fulfill their consultation obligation. Promoting
meaningful government-to-government consultation will create long-
lasting efficiencies, reduce project delays, help avoid legal battles,
and help fulfill the legal obligations of the Federal Government by
ensuring tribal nations have a voice at the table.
There is a reason this is a discussion draft at this time. I want
to hear from experts on the issue and in Indian Country on the best way
to implement this proposal. As I have said before--the best ideas for
Indian Country come from Indian Country. As such, I look forward to a
robust discussion on the bill and to hear the thoughts and ideas from
our witnesses.
Thank you, Mr. Chairman, and I yield back.
______
Mr. Gallego. Thank you, Mr. Chairman. Thank you, gentlemen,
for your testimony. Mr. Cole, Mr. Keating, you are welcome to
join us on the dais and ask questions of the witnesses, but I
know you have a busy schedule, so we understand if you must
leave us.
Will the next panel please take your seats? Our first
witness for this panel is the Honorable Jessie Little Doe
Baird, Vice-Chairwoman of the Mashpee Wampanoag Tribe. Next is
Mr. Kevin Washburn, Dean and Professor of Law at the University
of Iowa and former Assistant Secretary for Indian Affairs at
the U.S. Department of the Interior for the Obama
administration. Then we have Ms. Colette Routel, Director of
the Indian Law Program and Professor of Law at the Mitchell
Hamline School of Law. And finally, we have Ms. Claire
Richards, Executive Counsel to the Governor of Rhode Island.
Let me remind the witnesses that under our Committee Rules,
they must limit their oral statements to 5 minutes, that their
entire statement will appear in the hearing record. When you
begin, the lights on the witness table will turn green. After 4
minutes, the yellow light will come on. Your time will have
expired when the red light comes on, and I will ask you to
please complete your statement. I will also allow the entire
panel to testify before we start questioning the witnesses.
The Chair now recognizes the Honorable Jessie Little Doe
Baird to testify.
STATEMENT OF HON. JESSIE LITTLE DOE BAIRD, VICE CHAIRWOMAN,
MASHPEE WAMPANOAG TRIBE, MASHPEE, MASSACHUSETTS
Ms. Baird. Good afternoon, Chairman Gallego, Ranking Member
Cook, and distinguished members of the Subcommittee. Greetings
and thanks also to our great champions, Representatives Bill
Keating and Joe Kennedy.
[Speaking native language.] My name is Jessie Little Doe
Baird. I am from the Mashpee Wampanoag Nation and I am the Vice
Chairwoman for the Mashpee Wampanoag Tribe. I hold a Master of
Science in Linguistics from MIT and I am also a 2010 MacArthur
Genius Fellow. I come before you today on behalf of the Mashpee
Wampanoag Tribe. My tribe is facing the unthinkable: the dis-
establishment of our reservation, the collapse of our
government, and the loss of many of our public services.
Congress has the power to prevent this with the bipartisan
Mashpee Wampanoag Reservation Reaffirmation Act. Thank you so
much for holding this hearing today.
Until 2015, we were the only federally acknowledged tribe
in New England without Federal trust lands of our own. All
others have individual Acts of Congress that provide them with
reservation lands. In contrast, Mashpee had to ask the
Secretary of the Interior to take land into trust for us under
the general authority Congress gave him under the Indian
Reorganization Act.
In 2015, with the strong support of the Commonwealth of
Massachusetts, the city of Taunton, and the town of Mashpee,
the Interior took land in trust for the tribe and proclaimed it
as our reservation. However, rather than defending its original
decision and litigation challenging it, in September 2018, the
Interior, instead, issued a new decision based on a different
legal theory that has called into question whether the tribe is
eligible for the IRA at all. This creates the very real
possibility that our land will be taken out of trust altogether
and our reservation dis-established, something that has not
happened since the Termination Era.
The threat to our reservation status has had devastating
consequences for my people. Without congressional action
confirming that the IRA applies to Mashpee, not only will we
lose our current reservation, we will never have any
reservation. This uncertain status of our reservation has
forced us to borrow thousands of dollars every day to keep
basic government functions running.
We have been forced to lay off 40 percent of our work
force, and tribal unemployment is on the rise. The tribes had
to shut down or severely scale back vital government programs.
The tribe had to cut its police force by two-thirds and has
drastically reduced tribal Court staff. We already have a
severe housing shortage, and 43 tribal homes under construction
right now have been jeopardized by the uncertain status of our
reservation. We have lost our Federal funding for natural
resource protection, costing the tribe an estimated $1.2
million already. We have had to shut down our critically needed
addiction treatment service programs at a time when Wampanoag
people are 400 times more likely to die of an opioid overdose
than non-Wampanoag people in our region. Our internationally
recognized Wampanoag language immersion school, Mukayuhsak
Weekuw, is situated on the reservation. If we lose the
reservation status, we lose that school status. Our tribe
suffers from having only a 51 percent high school graduation
rate. Our language immersion school is vital to increasing our
citizens' graduation rate and reducing substance abuse and
suicide rates.
We are not asking Congress to do something it has not
already done before. In the 113th Congress, Congress passed the
Gun Lake Trust Land Reaffirmation Act which reaffirmed a prior
trust acquisition for that tribe. Congress also enacted
legislation for the Virginia tribes that expressly made the IRA
applicable to them, just like the Mashpee Reservation
Reaffirmation Act would do for us.
H.R. 312 is supported by the town of Mashpee, the city of
Taunton, and our state government. It also has wide support
from Indian Country, including the National Congress of
American Indians, and major regional pantribal organizations as
well as dozens of individual tribes. It also has widespread
support from our local Chambers of Commerce and the Mayflower
Society.
We are aware that the state of Rhode Island opposes our
legislation. The immediate damage that Carcieri v. Salazar did
to the great Nation of the Narragansett Tribe, our sisters and
neighbors, in the first instance, and the broader damage that
case inadvertently has inflicted on the rest of Indian Country
in these last 10 years has been terrible. Now the state of
Rhode Island seeks to reach across the state line into
Massachusetts to crush the hopes and dreams of my nation.
Respectfully, we request that Rhode Island consider the
gravity of its behavior and reconsider its position. We are
grateful that the Committee is considering H.R. 375, the Clean
Carcieri Fix bill. We strongly support this legislation and we
thank sponsors Representative Cole and Representative Betty
McCollum, but with great respect the impact of the Carcieri
decision on our tribe is now immediate. Finally, since time
immemorial, the Mashpee Wampanoag and the land have been
inseparable. We have been on the land where Creator placed us,
and this is true today as it was 400 years ago.
Mr. Gallego. Vice Chairman, please wrap up.
Ms. Baird. I'm happy to answer any questions you may have.
[The prepared statement of Ms. Baird follows:]
Prepared Statement of the Hon. Jessie Little Doe Baird, Vice
Chairwoman, The Mashpee Wampanoag Tribe on H.R. 312
introduction
Good afternoon, Chairman Gallego, Ranking Member Cook, and
distinguished members of the Subcommittee. My name is Jessie Little Doe
Baird and I am the Vice Chairwoman of the Mashpee Wampanoag Tribe. I
also bring greetings from our Chairman, Cedric Cromwell. Our Tribe is
suffering from the assault on our reservation and on our very status as
Indians. For this reason we urge swift passage of the bipartisan bill
H.R. 312, the ``Mashpee Wampanoag Tribe Reservation Reaffirmation
Act.'' The damage done to our Tribe during the years in which the
status of our reservation has been thrown into doubt is beginning to
reach catastrophic levels. Accordingly, we urge Congress to treat
Mashpee fairly, and to act with all due haste to protect our
reservation from further assault.
Joining us in urging swift passage are the city of Taunton, the
Town of Mashpee, Massachusetts State Representative Shauna O'Connell
(R-Taunton), Massachusetts State Representative David Vieira (R-
Mashpee), Massachusetts State Senator Nick Collins (D-Suffolk),
Massachusetts House Republican Leader Brad Jones (Middlesex), and
Massachusetts Senate Republican Leader Bruce Tarr (Gloucester), the
Mayflower Society, the Mashpee Chamber of Commerce, the Taunton Chamber
of Commerce, the Southeastern Massachusetts Building Trades Council,
and Dimeo Construction Company.
Also joining us in urging passage of the legislation are the
National Congress of American Indians, the National Indian Gaming
Association, the United South and Eastern Tribes, the Apache Alliance,
Rocky Mountain Tribal Leaders Council, Affiliated Tribes of Northwest
Indians, the Midwest Alliance of Sovereign Tribes, the Akiak Native
Community, the Tohono O'odham Nation, the Pascua Yaqui Tribe, the San
Carlos Apache Tribe, the Tonto Apache Tribe, the Hualapai Tribe, the
Mechoopda Indian Tribe, the Big Valley Band of Pomo Indians, the Sycuan
Band of the Kumeyaay Nation, the Guidiville Indian Rancheria, the Ione
Band of Miwok Indians, the Mashantucket Pequot Tribe, the Mohegan
Tribe, the Nez Perce Tribe, the Jena Band of Choctaw Indians, the Grand
Traverse Band of Ottawa and Chippewa Indians, Lac Vieux Desert Band of
Lake Superior Chippewa, Chippewa Cree Tribe of the Rocky Boy's
Reservation, the Shinnecock Indian Nation, the Standing Rock Sioux
Tribe, the Ft. Sill Apache Tribe, the Otoe Missouri Tribe of Indians,
the Kaw Nation, the Narragansett Indian Tribe, the Yankton Sioux Tribe,
the Cheyenne River Sioux Tribe, the Lower Brule Sioux Tribe, the Ute
Indian Tribe, the Suquamish Tribe, the Stockbridge-Munsee Band of
Mohican Indians, the Oneida Nation, the St. Croix Tribe of Chippewa
Indians, the Native American Rights Fund, the Native American Finance
Officers Association.
Since time immemorial, the Mashpee Wampanoag and the land upon
which we were placed by Creator have been inseparable. We are one and
the same. This fact is no less true today than it was some 400 years
ago when the Wampanoag granted Indian land title to the Pilgrims--the
land they used to form Plymouth Colony. Yet by the time our Federal
recognition was restored to us in 2007, we were a landless tribe with
no Federal reservation. This is in part because we are the only
federally recognized tribe in New England for which Congress has not
enacted legislation providing for a federally-protected reservation.
For this reason, the Tribe had to rely on the general authority to
acquire land in trust and proclaim reservations that Congress gave to
the Secretary of the Interior in the Indian Reorganization Act (IRA).
Through enactment of H.R. 312 Congress would finally act for Mashpee
too, placing us, finally, on an equal footing with other federally
recognized tribes.
overview of ``the mashpee wampanoag tribe reservation reaffirmation
act'' (h.r. 312)
The purpose of the Mashpee Wampanoag Reservation Reaffirmation Act
is to reaffirm the status of the Tribe's reservation and ensure that
the Tribe will not be treated as some kind of second class tribe that
has a lesser status under the IRA than other federally recognized
tribes. This is a bipartisan bill with the singular, straightforward
purpose of protecting our reservation.
The language of the bill tracks language from two other tribal
bills that already have been enacted by Congress, the Gun Lake
Restoration Act (S. 1603, passed in the 113th Congress) and the Indian
Tribes of Virginia Recognition Act (H.R. 984, passed in the 115th
Congress). Subsection (a) tracks language from the Gun Lake statute,
and it confirms the status of the Tribe's reservation. Subsection (b)
also tracks language from the Gun Lake legislation, and it serves put
an end to the costly, painful litigation plaguing the Tribe regarding
the status of its reservation. Finally, subsection (c) tracks language
from the Virginia Tribes recognition statute, and makes clear that the
Tribe will be treated equally with other federally recognized tribes
under the IRA.
Just 6 months ago in the 115th Congress, this Subcommittee held a
hearing on the predecessor bill (H.R. 5244). There, the bill received
positive feedback and bipartisan support. At that hearing, the
Department of the Interior raised no objections to the bill in its
written testimony, and in fact committed to working with the
Subcommittee on moving the bill forward. The only difference between
H.R. 5244 and H.R. 312 is that some additional language requested by
the Town of Mashpee and agreed to by the Tribe has been added to the
bill to acknowledge the existence of a now long-standing
intergovernmental agreement between the Town and the Tribe that is also
referenced in the Tribe's Record of Decision.
H.R. 312 does not provide any new or special rights to Mashpee.
This bill merely asks Congress to exercise its plenary authority over
Indian affairs to ensure that the Tribe will be treated the same as
other federally recognized tribes by protecting the Tribe's existing
reservation. A tribal land base is crucial for the exercise of tribal
sovereignty, and for the protection and continuation of tribal culture,
and represents the foundation for tribal economic development. Like
other federally recognized tribes, we have the right to exercise our
tribal sovereignty within our reservation. Preservation of our
reservation allows our tribal government provide services and
protection to our citizens through tribally operated and funded
programs. Having reservation land where we can generate tribal revenue
increases our self-sufficiency and decreases our dependence on Federal
funding and grants.
the uncertain status of mashpee's reservation is causing catastrophic
harm to the tribe and individual citizens
As a result of the legally uncertain status of our reservation,
Mashpee has been forced to borrow thousands of dollars every day to
keep basic government functions running. The uncertain trust status of
Mashpee's reservation is causing our tribal government to move ever
closer to shutting down. Mashpee has been forced to lay off 41 percent
of its work force, the overwhelming majority comprised of Tribal
citizens, and Tribal Council members are performing their governmental
duties without pay. Tribal unemployment is on the rise. The Tribe has
been forced to shut down or severely scale back many vital government
programs.
For example, the Tribe essentially has had to dissolve its police
force with the exception of one patrol officer and we have had to
reduce tribal court staff. Presently, we have 43 homes under
construction on our reservation lands that will be lost if our
reservation goes out trust--this will be devastating given our severe
housing shortage. We have also faced the loss of Federal funding that
allows us to partner with the Town of Mashpee to our shared water ways
and forests. This funding loss has cost the Tribe an estimated $1.2
million to carry out our natural resources development initiatives and
programs in conjunction with the Town of Mashpee. Particularly painful,
we have had to shut down our critically needed addiction treatment
services programs at a time when Wampanoag people are 400 times more
likely to die of an opioid overdose than non-Wampanoag people.
Our nationally recognized Wampanoag language immersion school
serves preschool and school aged children with a planned expansion to
fourth grade. Because this school is situated on reservation lands, the
removal of trust status while not only disrupt the curriculum but also
the children that have been attending since the age of four. Presently,
the Tribe suffers from having only a 51 percent high school graduation
rate. Our language immersion school is vital to increasing our
citizens' graduation rate and reducing substance abuse and suicide
rates. These are only a few examples of the desperately needed tribal
government programs that Mashpee has been forced to drastically scale
back or completely shut down.
Finally, if the Department acts to take Mashpee's reservation out
of the trust, not only will Mashpee lose its jurisdiction over the land
and have to further reduce tribal programs, Mashpee will also likely
lose the land itself as a result of not being able to pay state taxes
on the 321 acres.
enactment of h.r. 312 will provide critical economic development
opportunities to southeastern massachusetts and rhode island
The city of Taunton and Town of Mashpee both strongly support H.R.
312. Both have submitted letters and testimony in support of H.R. 312
and its predecessor bill H.R. 5244. We have entered into
intergovernmental agreements with both governments. Our communities and
our futures are intertwined. In our intergovernmental agreements we
have come together both protect certain areas from development, and to
foster mutually beneficial economic growth in other areas. For example,
if the status of our reservation is confirmed through enactment of H.R.
312, we will be able to use our reservation to bring over 7,000 jobs to
the area (including to the state of Rhode Island). The Tribe has
committed to $30 million in upgrades to the Taunton water system and
roadways, $10 million per year to local first responders and Taunton
city services, and $65 million per year to the state for broader
community development initiatives that will benefit the entire state.
Once implemented, these commitments will represent the single largest
urban renewal effort in Southeastern Massachusetts in a generation. If
our reservation is disestablished, we will not be able to honor these
commitments.
arguments made by the state of rhode island
The state of Rhode Island, in a letter from Governor Gina Raimondo,
argues that the Mashpee Reservation Reaffirmation Act ``undercuts'' the
plain language of the Indian Reorganization Act, although the Governor
fails to explain how this is true or identify the part of the statute
to which she refers. She also insists that the Act ``undercuts'' the
Supreme Court's decision in Carcieri v. Salazar. Respectfully, United
States Constitution unequivocally endows the U.S. Congress with plenary
authority over all matters relating to Indian Affairs. If Congress
deems it appropriate to save the Mashpee Indian Tribe's reservation and
to stop this senseless, soul-crushing litigation over whether Congress
did or did not mean to include Mashpee among the tribes that should
benefit from the Indian Reorganization Act of 1934, it acts well within
its constitutional authority. The idea that in enacting the IRA
Congress relinquished its own authority to acquire land for Indians or
to determine which Indian tribes it wishes to make eligible for the IRA
is legally incorrect.
Not only is acquiring land in trust for Mashpee not contrary to the
plain language of the IRA, but it is entirely consistent with the
framers' intention that the IRA would benefit some tribes, like
Mashpee, that had been forced into landlessness by centuries of anti-
Indian Federal policies which stripped tribes of their lands. See,
e.g., S. Rep. No. 1080, 73d Cong., 2d Sess., at 1 (1934) (declaring
that one of the ``purposes of this bill'' was to ``provide for the
acquisition, through purchase, of land for Indians, now landless, who
are anxious and fitted to make a living on such land''); H.R. Rep. No.
1804, 73d Cong., 2d Sess., at 6 (1934) (noting that the IRA would help
to ``make many of the now pauperized, landless Indians self
supporting'').
What the Governor does not say in her letter is that the state of
Rhode Island has acknowledged in a market study commissioned by the
Rhode Island Department of Revenue that ``a substantial portion of
Rhode Island gambling revenues are contributed by Massachusetts
residents.'' Christiansen Capital Advisors LLC, Rhode Island Gaming and
State Revenue Forecast, Oct. 31, 2017, at 19. These commercial casinos
pay 60 percent of their revenue to the state and are the third largest
source of Rhode Island's revenue. See American Gaming Association,
State of States 2018: AGA Survey of the Commercial Casino Industry, at
103; Katherine Gregg, Twin River owners, R.I. pols join chorus against
Taunton tribal casino bill, The Providence Journal, Sep. 5, 2018. The
state's interest in whether Mashpee's reservation is reaffirmed is not
about jurisdiction or checker-boarding--the state's interest is in
protecting the revenue stream it is receiving from Massachusetts
residents. We value our neighbors in Rhode Island and we would like to
have a good working relationship with them, just as we do with our
local governments. But we would be remiss in not pointing out the
immediate damage that Carcieri v. Salazar did to the Narragansett Tribe
in the first instance, and the broader damage that case inadvertently
has inflicted on the rest of Indian Country in these last 10 years. Now
the state of Rhode Island seeks to reach across the state line into
Massachusetts to crush the hopes and dreams of my Tribe. Respectfully,
we request that Rhode Island consider the gravity of its actions and
reconsider its position.
conclusion
No other tribe in the United States currently faces the very real
threat of having its reservation disestablished over a legal
technicality. H.R. 312 is an emergency measure by which Congress can
act to resolve this otherwise meaningless legal technicality to provide
legal certainty not just to the Tribe, but also to our surrounding
communities. We ask Congress to protect our inherent right to govern
ourselves as the sovereign that was here long before Europeans arrived;
the sovereign that granted lands to the first settlers; the sovereign
that is still here taking care of our Mashpee Nation today.
With respect and gratitude, I thank you for your time today. I am
happy to answer any questions you may have.
______
Mr. Gallego. Perfect. Thank you, Vice Chairwoman. The Chair
now recognizes Mr. Kevin Washburn to testify.
STATEMENT OF KEVIN WASHBURN, PROFESSOR OF LAW, UNIVERSITY OF
IOWA COLLEGE OF LAW, IOWA CITY, IOWA
Mr. Washburn. Chairman, Ranking Member, Chairman Grijalva,
Ms. Haaland, who represents my former home, it is good to see
you, and former Chairman Young, I have missed you these past
few years.
[Laughter.]
Mr. Gallego. OK, with objection, I am ruling that out of
order.
[Laughter.]
Mr. Washburn. I would like to also thank Tom Cole, my
cousin from the Chickasaw Nation, and Betty McCollum. I would
first like to talk about H.R. 375, that is bipartisan
legislation that both of them have pushed for quite a while and
it would be great to get this done. I won't repeat many of the
things that Tom Cole has already said, and you have my written
testimony, but I just would like to make a couple of points
about H.R. 375, the Carcieri fix bill, and that is this: No
Member of Congress and no Federal policy maker would have
designed a system that has two classes of tribes for land into
trust. If we started from scratch, that is not what we would
do; we would treat tribes the same.
And, indeed, in 1994, Congress passed legislation demanding
that tribes be treated the same for all purposes under the IRA,
the Indian Reorganization Act. So, no one would have come up
with this system from scratch and we have been living with it
because of an erroneous Supreme Court decision that, frankly,
was not well thought out.
The question really is, should tribes recognized since 1934
be able to have housing? Should they be able to have police
stations and fire stations and lands for agriculture? Should
they be able to have economic development and infrastructure?
And the answers to all those questions are, of course, they
should.
During the Obama administration, the administration, I
think, accepted something like more than 2,000 acres, or
parcels of land in trust encompassing well over 500,000 acres,
and that is because those tribes needed that land and that was
really important to the Obama administration to try to make
that happen.
Perhaps the best of H.R. 375 is that it would reduce a lot
of unnecessary litigation and a lot of bureaucratic resources
that are being wasted. I am dean of a law school, I am all for
full-employment acts for lawyers, but that is really what H.R.
375 is and, frankly, there is plenty of work for lawyers in
Indian Country without having to do so much work to try to meet
the requirements of Carcieri. I think that we have a lot more
better use of work by the hardworking Indian lawyers in Indian
Country than to try to keep dealing with this issue, and you
guys could correct that real easily by passing this bill.
Since the 1990s, there has been a requirement that each
year the Federal Government publish the list of tribes that are
recognized. It would have been nice if we had had that in 1934.
That would have saved a lot of this work for tribes. But the
fact is there is no tribe that exists today that did not exist
in 1934. We don't create tribes out of whole cloth in this
country. We spend a lot of time working on the reformation of
that tribal recognition process, and those tribes have always
existed and so they deserve to have land if they have existed.
So, I would respectfully urge the Committee to try to move H.R.
375 through the House.
Let me move briefly to the RESPECT Act, Chairman Grijalva's
bill. I strongly believe in the need for consultation as a
matter of law, as he described it. We have had at least two
decades of careful policy making around tribal consultation. It
has become a strong Federal norm that tribes should be
consulted on the matters that affect them, and it really has
become part of the way we do business in the Federal Government
with regard to Indian Country. It is a norm that does not get
applied evenly across administrations, however.
I actually in some ways don't like the RESPECT Act because
it puts a lot of requirements in place before the Federal
Government can act, and I guess I am little libertarian, I
don't like putting a whole lot of additional requirements on
the Federal Government because it will also keep them from
doing good things.
That said, I think what we have seen is that we need
something like the RESPECT Act, and I am grateful for Chairman
Grijalva for proposing it. There are a lot of good things that
it does. One is that it forces consultation. Since it forces
consultation, that means that it also wraps in independent
Federal agencies, such as the Federal Energy Regulatory
Commission and the National Labor Relations Board and those
sort of agencies. I think that is important because those
agencies have not always been good about consulting with
tribes. And a President's Executive Order can't reach those
agencies in the same way.
Why don't I stop there? My time is about up, but I will be
happy to answer questions in a little while if need be.
[The prepared statement of Mr. Washburn follows:]
Prepared Statement of Dean Kevin K. Washburn, University of Iowa
College of Law\1\ on H.R. 375 and the RESPECT Act
---------------------------------------------------------------------------
\1\ For identification purposes only. The testimony presented here
is made in an individual capacity and it not made on behalf of the
University of Iowa or any other institution.
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Chairman, Ranking Member, and members of the Committee. Thank you
for asking me to appear before you to testify about two bills in the
Committee's jurisdiction, H.R. 375, and the RESPECT Act.
Testimony on H.R. 375
I appeared before House or Senate committees in the 112th, 113th
and 114th Congresses, on behalf of the Obama administration, to seek a
clean Carcieri-fix. It is an honor to appear before a Committee of the
116th Congress in an individual capacity but with the same goal.
Background: The Need for a Carcieri Fix
One of the greatest long-standing injustices in the history of the
United States is the theft of land from Indian tribes during the better
part of the first two centuries of this Nation's existence. The loss of
native land reflects a wide gulf between our claim to be a just nation
and the truth buried in our Nation's history. Since 1787, however, this
country has been committed to improving and has sought earnestly, I
believe, to become a ``more perfect union.'' It is in that spirit of
idealism that I appear before you today.
In the decades prior to the enactment of the Indian Reorganization
Act (IRA) during the ``Indian New Deal'' in 1934, tribes lost more than
90 million acres of land in the continental United States. It was
recognition of the scope of this tragic loss that caused Congress to
take action. In the IRA, Congress gave the executive branch the
authority to take land into trust and thereby restore land to tribes.
The land into trust process unfolded very gradually over the
ensuing decades. It is a slow and cumbersome bureaucratic process. In
most instances in which land is taken into trust for tribes, the tribe
has re-purchased land that previously were taken, often illegally. One
might think that requiring tribes to repurchase lands that had once
been stolen from them would only compound the injustice, but tribes are
grateful to have the land restored as sovereign territory even if they
must use their own limited resources to accomplish it.
To supercharge the slow process of finally addressing the long-
standing injustice of the theft of Indian lands, President Barack Obama
made restoration of tribal land a central priority of his
administration. By the time I joined the administration near the end of
Obama's first term in 2012, the Obama administration had already taken
approximately 180,000 acres of land into trust for tribes.
By the time President Obama left office in 2017, approximately
362,000 acres more had been taken into trust across Indian Country, for
a total of 542,000 acres of land acquired during the Obama
administration. In addition, more than 2.3 million cumulative acres of
trust land have been restored to tribes through the Cobell settlement's
fractionated interest buy-back program, an initiative that continues
today. These efforts constitute the most successful efforts to reverse
tribal land loss in American history.
The Obama administration also took two other key actions related to
``land into trust.'' One was the so-called ``Patchak Patch,'' which
eliminated a 30-day waiting period for implementation of land into
trust decisions. Under the Patchak Patch, once the Department made a
decision to take land into trust, usually after months or years of
processing an application, the land would go into trust immediately.
Though an opponent could still challenge the decision in administrative
or judicial litigation, the land would be in trust pending the outcome
of the litigation, which often stretches for years. The Patchak Patch
thus prevented the strategic and abusive use of litigation to delay the
implementation of a land into trust decision that would benefit a
tribe. The current administration has indicated that it is interested
in revisiting this rule. The other key Obama action in the area of land
into trust was the removal of a long-standing Federal regulatory
prohibition on taking land into trust for tribes in Alaska. The current
administration has indicated that it is also interested in revisiting
the Alaska rule.
The aggressive restoration of land to tribes during the Obama
administration went a long way toward laying the foundation for a
better government-to-government relationship between the United States
and tribal nations.
The Supreme Court's 2009 decision in Carcieri v. Salazar was an
early setback. The Carcieri opinion ruled unlawful the Secretary of the
Interior's effort to take 31 acres of land into trust for the
Narragansett Tribe of Rhode Island for a housing project.
Issued just 1 month after President Obama's inauguration, Carcieri
was erroneously decided and has had pernicious effects in Indian
Country. A significant problem with Carcieri is that it misinterpreted
the Indian Reorganization Act to make an arbitrary and unwarranted
distinction between tribes. As a result of the decision, some tribes
are unable to petition the Federal Government to have land restored to
them through the land into trust process. The decision was a
misinterpretation of law and there is no rational policy basis for
treating some tribes differently.
The Carcieri decision was troubling in part because it failed to
respect congressionally defined norms of Federal Indian policy which
had been expressed just a few years earlier. Indeed, in 1994, Congress
had expressed a desire that the IRA be applied in the same manner to
all tribes. At that time, Congress clarified that no Federal agency
should make any determination under the IRA ``with respect to a
federally recognized Indian tribe that classifies, enhances, or
diminishes the privileges and immunities available to the Indian tribe
relative to other federally recognized tribes by virtue of their status
as Indian tribes.'' P.L. 103-263 (1994). The Secretary's efforts for
the Narragansett, however, were entirely consistent with the
congressional direction to treat tribes similarly under the IRA. It is
for this reason that many believe Carcieri was out of step with Federal
policy and wrongly decided.
When Carcieri was issued, President Obama realized that it had the
potential to derail his important policy goal of restoring land to
Indian tribes. President Obama personally called on Congress to enact a
Carcieri-fix in November 2013 and directed his staff before and after
that time to seek a Carcieri-fix.
Because of the high priority of restoring lands for all tribes, the
Obama administration also developed a legal strategy to limit the
Carcieri decision to its facts and to use other tools in the same
statute. This strategy was successful for at least one tribe, but it
has failed for at least one other.
A central flaw in Carcieri's reasoning is this: every tribe that is
federally recognized today necessarily existed in when the IRA was
enacted in 1934. The reason some tribes were not then formally
recognized in 1934 is obvious, at least from a historical perspective.
The massacres at Wounded Knee (1890) and Sand Creek (1864) were still
fresh in oral histories and the deeply scarred memories of native
people. Many Indian communities remained in hiding and working hard to
avoid attention from the Federal Government.
In the time since 1934, the United States has become somewhat safer
for native communities, and tribes eventually started coming out of the
shadows. Congress has extended Federal recognition to dozens of tribes
since 1934 and the executive branch has recognized a few more. Efforts
were made in Congress and the executive branch to treat tribes on an
equal basis, except where Congress, treaties or other laws required
otherwise.
This is why Carcieri was unwelcome to Federal Indian policy makers.
It divided tribes into ``haves'' and ``have nots.'' Because the land
into trust process is slow and bureaucratic, the full impact of
Carcieri has not become known yet. For numerous tribes recognized since
1934, however, Carcieri feels like a ticking time bomb. According to
the late Professor William Rice, writing shortly after the opinion was
issued, Carcieri ``will create a cloud upon the trust title of every
tribe first recognized by Congress or the executive branch after 1934,
every tribe terminated in the termination era that has since been
restored, and every tribe that adopted the IRA or OIWA and changed its
name or organizational structure since 1934. It will also result in
incessant litigation to determine which of the over 500 tribes fall
within its terms and prohibit future trust acquisitions for such tribes
as are finally found to be within its net.'' Wm. Rice, The Indian
Reorganization Act, the Declaration on the Rights of Indigenous People,
and a Proposed Carcieri ``Fix,'' 45 Idaho L. Rev. 575, 594 (2009).
In sum, Carcieri has the potential to spawn endless litigation
about past land acquisitions and block future acquisitions. Carcieri
remains a serious problem that draws an arbitrary and unwelcome line
though Indian Country.
The Carcieri decision has been on the books now for 10 years. It is
unlikely that it will be corrected by the Supreme Court. I would
respectfully urge Congress to explain that it meant what it said in
1994 and amend the IRA to provide absolute clarity that the Secretary
of the Interior has authority to restore land for all federally
recognized tribal nations in the United States.
Views on H.R. 375
I wish to begin by expressing my appreciation to Representatives
Tom Cole and Betty McCollum for continuing to press in a bipartisan way
for this important legislation. Representatives Cole and McCollum have
worked together--across the aisle--to resolve this important issue for
several years. The passage of H.R. 375 has the potential to be a
wonderful example of bipartisanship in a divided Congress.
I am also grateful to the Committee leadership for giving this bill
a hearing. It is the hope of many people in Indian Country that the
recent change in the makeup of the committees and the leadership
positions will allow the bill to advance and address this long-standing
injustice.
H.R. 375 is an elegant way of addressing Carcieri v. Salazar. It is
a model of clarity and simplicity and would fully address the problems
highlighted above.
H.R. 375 has three important features that are crucial to
clarifying the IRA and remediating the harm caused by Carcieri. First,
it strikes from the IRA the confusing term, ``now under federal
jurisdiction,'' making it more obvious that the land into trust
provisions have broad application to all federally recognized Indian
tribes, no matter when they achieved Federal recognition. Second, it
makes the amendment retroactive to the original date of enactment of
the IRA in 1934. This insures proper authorization for all actions to
take land into trust since that time and prevents unnecessary and
fruitless litigation about whether authority existed at the time the
land was taken into trust. Finally, H.R. 375 amends the definitions
section of the IRA to make it even more clear that the Secretary of the
Interior has authority to take lands in trust for tribal nations in
Alaska.
Testimony on the RESPECT Act
Tribal consultation has been an important part of Federal Indian
policy throughout history and has been revitalized in recent years. I
will first provide context for the recent developments in tribal
consultation and then discuss the bill in this context.
Background: Executive Order 13175 and Modern Tribal Consultation
Activity that can be described as tribal consultation has existed
since the first days of the American republic. Over the course of
nearly two centuries, government-to-government relationships that began
as arms-length treaty negotiations slowly transformed into a very
paternalistic relationship denoted by the concept of a Federal trust
responsibility to tribes.
Tribal governments reawakened politically in the 1960s and 1970s
and embraced newly revitalized efforts at tribal self-government. A new
government-to-government relationship between the Federal Government
and tribes began to form. By the 1990s, tribal governments had earned
greater political salience, both within their communities and
externally. They were becoming stronger partners for the Federal
Government.
In a series of orders and memoranda issued throughout his
presidency, President Bill Clinton embraced and gradually strengthened
the general norm of Federal consultation with tribal governments.
Colette Routel and Jeffrey Holth, Toward Genuine Tribal Consultation,
46 Univ. of Mich., L.L. Reform 417, 442-43 (2013). This steady
development of policy culminated, on November 6, 2000, when Clinton
issued Executive Order 13175. The order directed agencies to engage in
consultation and coordination with tribes in ``the development of
Federal policies that have tribal implications.'' 65 Fed. Reg. 67249
(Nov. 9, 2000). E.O. 13175 was a major step forward in the government-
to-government relationship between American Indian nations and the
United States. Symbolically, it demonstrated Federal respect for
tribes. Practically, it reflected common sense and good government as
well as a more effective way of developing and implementing Federal
policy. It has never been rescinded and to this day constitutes the
governing executive branch statement on tribal consultation.
A notable feature of E.O. 13175 is its breadth. It does not limit
the consultation requirement to Federal Indian policies. It applies to
any Federal policy with ``tribal implications.'' This presumably
includes general Federal policies that affect tribes. As governments
and communities in the United States, Indian tribes are, of course,
affected by numerous general Federal policies. In other words, E.O.
13175 requires the Federal Government to consult with tribes about
policies even if Indian tribes and people are not the primary target of
such policies. While it has not always been implemented as broadly as
its terms suggest it should be, E.O. 13175 is an ambitious and positive
vision for Federal policy making and the government-to-government
relationship.
In 2004, President George W. Bush issued a memorandum in which he
noted E.O. 13175 and expressed his administration's commitment to the
government-to-government relationship. Memorandum on Government-to-
Government Relationship with Tribal Governments (Sept. 23, 2004). The
memorandum expressed good intentions, but tribes felt that these
intentions were realized only unevenly.
Eight years after President Clinton issued E.O. 13175, President
Barack Obama was elected. He embraced Clinton's Executive Order and
made a robust effort to implement it by directing each Federal agency
to develop its own individualized plan for tribal consultation.
Presidential Memorandum on Tribal Consultation, 50 Fed. Reg. 57,881
(Nov. 5, 2009). Prodded by Domestic Policy Council staff at the White
House, the vast Federal bureaucracy soon began working to comply, with
each Federal agency or office embarking on individual policy-making
efforts. The first step was, of course, to consult with tribes. In an
effort that was important but must have been amusing to lovers of the
Dilbert comic strip, each agency began ``tribal consultations on tribal
consultation.'' These efforts bore fruit with each Cabinet-level
Department and many sub-departments ultimately issuing their own
specific tribal consultation policies, developed organically, but
consistent with E.O. 13175. See, for example, the Tribal Consultation
and Coordination Policy for the U.S. Department of Commerce, 78 Fed.
Reg. 33331 (June 4, 2013).
Though E.O. 13175 specifically disclaimed the creation of rights
enforceable against the executive branch in court, it began to change
the norms inherent in the Federal government-to-government relationship
with tribes. Indeed, a handful of courts have signaled that agency
action may be reviewable to insure that the consultation is meaningful.
See, e.g., Cheyenne River Sioux Tribe v. Jewell, 3:15-CV-03018, 2016 WL
4625672 (D.S.D. Sept. 6, 2016); Wyoming v. U.S. Dept. of the Interior,
136 F. Supp. 3d 1317, 1345-46 (D. Wyo. 2015).
During the Obama administration, tribal leaders grew accustomed to
annual meetings with the President and members of his cabinet and other
agencies. In 2013, President Obama issued Executive Order 13647,
ordering an annual White House Tribal Nations Conference. Exec. Order
No. 13647, 3 C.F.R. 311 (2014). As a result of the Federal Government's
more robust approach to tribal consultation, tribal governments are now
more involved in shaping Federal policy affecting them. All of this
tribal engagement has made Federal policy more effective.
As tribal governments have engaged in consultation, they have
become more competent in evaluating and affecting Federal public
policy. They are more politically engaged and offer more astute
suggestions. The result is a virtuous cycle: tribal governments engage;
Federal policy improves; and tribal governments, in turn, become even
more invested in the policy and the engagement. As a result of their
invited involvement in the machinery of Federal policy making, tribes
have become better Federal partners.
A more substantive impact of this more robust government-to-
government relationship has been a further transformation in the
content of the Federal trust responsibility itself. Strong tribal input
in shaping Federal policy necessarily diminishes the continuing
paternalistic tendencies of that policy.
The trust responsibility has quite simply come to embody much
greater respect. Statutes continue to reflect Federal Government
decision making and oversight of tribes, but the relationship has come
to seem more like a collaboration between sovereigns. See Kevin K.
Washburn, What the Future Holds: the Changing Landscape of Federal
Indian Policy, 130 Harv. L. Rev. F. 200, 215-16 (2017).
Moreover, as noted above, because the new norms around the
government-to-government relationship explicitly require consultation
with tribes on any policy matter that affects them, the norms inherent
in the trust responsibility have begun to escape the bounds of Indian
policy.
A fair criticism of the executive branch's approach to tribal
consultation is that E.O. 13175 has been implemented unevenly. Tribal
consultation has been embraced much more enthusiastically in Democrat
administrations than in Republican ones, in part because Democrats tend
to develop more Federal Indian policy initiatives to serve a core
constituency.
The RESPECT Act in Context
The RESPECT Act codifies a much stronger requirement for tribal
consultation, but addresses a more narrow range of tribal interests
than currently encompassed under E.O. 13175. The RESPECT Act addresses
a subset of issues for which tribal governments are likely to be most
concerned, namely Federal activities that affect tribal cultural
resources and lands, tribal self-governance, the trust responsibility,
and the government-to-government relationship between a tribe and an
agency. As to those matters, however, the RESPECT Act mandates robust
formal procedural requirements as to how and when such consultation
must occur, including providing for planning, notice, meetings, and
memoranda of agreement. It also contains provisions requiring
development of a record of tribal consultation and requirements for a
final decision on the proposed Federal action, with provision for
notice and comment.
A significant feature of the RESPECT Act is a provision for
confidentiality so that an Indian nation can share information with
Federal officials without fear that it will become public. For example,
a tribe can disclose the location of a sacred site without fear that it
will be disclosed in a Freedom of Information Act response. Aside from
that provision, which makes substantive changes to Federal disclosure
laws, the RESPECT Act is almost entirely procedural.
The RESPECT Act changes the landscape for tribal consultation as it
exists under E.O. 13175 in several significant ways.
First, in contrast to E.O. 13175, the RESPECT Act is judicially
enforceable. Due to its terminology, I read the Act to allow a tribe to
seek review of an agency determination even before an agency action
becomes final, as long as the tribe has exhausted administrative
remedies. This would appear to give the Act teeth at any stage of the
process. In that respect, the RESPECT Act is much more effective than
E.O. 13175 in mandating tribal consultation.
Second, the RESPECT Act creates a uniform process across Federal
agencies. Unlike the Obama administration approach to implementation of
E.O. 13175, which allowed each agency to develop its own consultation
process organically and with tribal input, the RESPECT Act creates
uniformity. Such an approach has plusses and minuses.
A plus is that tribes and citizens will know exactly how the
uniform process works with each Federal agency, even if they have not
worked with that agency previously, and will not have to become
familiar with different specialized approaches for different agencies.
There is value in uniformity. Consider for example, the National
Environmental Policy Act (NEPA). NEPA imposes a regime that works
fairly uniformly across the government. Each agency implements it
similarly. As a result, expertise is not difficult to find and a lot of
people are familiar with it, from citizens to courts.
A minus is that, in light of varying cultures, so-called ``one-
size-fits-all'' approaches don't work well for tribes. Likewise, a
``one-size-fits-all'' approach to tribal consultation may not capture
the needs of different agencies. The Act seems designed primarily with
project development activities in mind, but it applies to a wider range
of Federal activities, such as rulemaking and policy guidance. This may
have unexpected consequences.
Third, it will slow agency decision making and policy development.
This also involves plusses and minuses. Tribes will likely be pleased
with a slower process if it insures tribal consultation, but tribes too
sometimes complain about the greater length of time required to achieve
various policy goals, particularly those related to economic
development on tribal lands. The RESPECT Act will likely lengthen that
time. Consider the Department of the Interior's existing tribal
consultation policy; it requires advance notice of at least 30 days for
a tribal consultation. That is a modest time period and yet it
sometimes prevented agency officials from moving as quickly as they
would like, even when developing a policy or making a decision that
tribes sought. The time periods in the bill will allow time for robust
consultation and plenty of notice but, like NEPA, may force an agency
to move more slowly than ideal in some circumstances.
Fourth, the RESPECT Act is in some ways narrower than E.O. 13175.
While E.O. 13175 applies to any Federal policy with ``tribal
implications,'' which includes some policies that are beyond the
traditional scope of Federal Indian policy, the RESPECT Act focuses
only on the Federal activities that affect significant tribal
interests, such as tribal cultural resources and lands, tribal self-
governance, the trust responsibility, and the government-to-government
relationship between a tribe and an agency. To the extent that E.O.
13175 is overbroad from the Federal perspective, Federal agencies have
tended to take refuge in the fact that it is not judicially
enforceable. Agencies have tended to ignore the tribal consultation
requirement as to some matters.
Fifth, and on the other hand, the RESPECT Act is broader than E.O.
13175 because it applies to independent Federal regulatory agencies.
One of the more frustrating episodes in modern Federal Indian policy
for tribes was the National Labor Relations Board's decision to ignore
the Federal norms as to tribal consultation and suddenly reverse long-
standing policy toward tribes in a punitive enforcement action. See
Wenona Singel, Labor Relations and Tribal Self-Governance, 80 N.D. L.
Rev. 691, 693-94 (2004). Because the RESPECT Act applies to
``operational activity,'' it might prevent an independent Federal
agency from implementing such a policy change in this manner in the
future.
Finally, the RESPECT Act might provide some salutary benefits as it
applies to legislative proposals. In the past, bills have been enacted
that failed adequately to consider issues involving tribes. For
example, in the Adam Walsh Sex Offender Registration and Notification
Act, the drafters inadvertently failed to consider the needs of Native
American victims and communities. See Virginia Davis & Kevin Washburn,
Sex Offender Registration in Indian Country, 6 Ohio St. J. Crim. L. 3
(2008). Because a lot of proposed bills are developed as part of
administration packages, the RESPECT Act provides a mechanism for
insuring that tribal needs are considered in certain types of proposed
legislation.
In a more perfect world, the norm of tribal consultation would be
respected evenly through time and across presidential administrations.
In such a world, a congressional mandate for more elaborate tribal
consultation would not be necessary. In the world in which we live,
however, the RESPECT Act is needed to insure best practices in the
Federal-tribal government-to-government relationship. Ultimately, the
RESPECT Act would have the effect of making tribal consultation less
partisan than it is now. Tribes could be assured of the same robust
commitment to consultation no matter which party controls the White
House.
On balance, the RESPECT Act is a positive contribution and has the
ability to advance tribal sovereignty and would improve the
relationship between tribes and the Federal Government.
Thank you for inviting my views on this important legislation.
______
Questions Submitted for the Record by Rep. Bishop to Kevin Washburn,
University of Iowa College of Law
Question 1. As the Assistant Secretary--Indian Affairs, you signed
the September 2015 Record of Decision for the Trust Acquisition and
Reservation Proclamation for the Mashpee Tribe (``ROD''). In the ROD,
you write ``the Tribe qualifies for the IRA's benefits under the second
definition of `Indian.' '' (ROD, page 79). To the best of your
knowledge, has the Department of the Interior acquired land into trust
under the second definition of ``Indian'' under the IRA for any other
tribe besides the Mashpee?
Question 2. To the best of your knowledge, has the Department of
the Interior conducted, but not necessarily made final, a Carcieri
analysis under the second definition of ``Indian'' for any other tribe
besides the Mashpee Tribe?
Question 3. Why didn't the Department of the Interior use the
``first definition'' of Indian in the IRA in its analysis of the
Mashpee Tribe's Carcieri status?
Answer. I thank the Committee for its focus on these issues and for
these important questions.
It is the responsibility of the Secretary to seek to meet the
purposes of the Indian Reorganization Act within the bounds of the law.
The Indian Reorganization Act presents more than one pathway for land
into trust. During the Obama administration, the goal was to think more
holistically about land into trust than the Supreme Court was able to
do in Carcieri. Because of the nature of its work, the Supreme Court
had before it only one of the pathways for land into trust. While
Carcieri and its necessary implications must be respected as the law of
the land, it need not--and should not--be interpreted more broadly than
its reasoning requires. That would imbue the Supreme Court with a
policy-making function that it does not have and presumably does not
wish to have.
I concluded my service at the Department of the Interior effective
January 1, 2016, and am sensitive to the fact that I have not been
privy to inside discussions and strategy about the land into trust
process since I left. Two of these questions essentially ask me for
information that implicate the Department's attorney-client, work
product and deliberative process privileges with regard to important
decisions of the Department. While I understand the public interest in
those decisions, it would be arrogant of me to undermine the
Department's privileges when another person now holds that office.
During my time at the Department of the Interior, the time devoted to
land-into-trust applications increased substantially. I do note that
the Trump administration has continued taking land into trust, for
gaming and other purposes, so presumably it has also had to consider
the implications of Carcieri. However, I am not intimately aware of the
decision-making actions of the Department and thus am not competent to
answer all of these questions.
I would note also, that, during the Obama administration, the
Department resisted providing a list of tribes with ``Carcieri
problems'' because producing such a list was not in the interest of any
potential tribe that would be included on such a list. Thus, it would
not be consistent with the Department's role as trustee for each
American Indian nation. Because these questions have similar
implications, I believe, respectfully, that it is not in the best
interest of any tribe--or for Indian Country generally--for me to
answer these questions in the manner that they have been posed. Thank
you again for the Committee's attention to these important issues.
______
Mr. Gallego. Thank you, Mr. Washburn. The Chair now
recognizes Ms. Colette Routel for her testimony.
STATEMENT OF COLETTE ROUTEL, PROFESSOR OF LAW, MITCHELL HAMLINE
SCHOOL OF LAW, ST. PAUL, MINNESOTA
Ms. Routel. Good afternoon. Thank you for allowing me to
appear before you today to testify about H.R. 375, a bill to
amend the Indian Reorganization Act. As you know, in Carcieri
v. Salazar, the Supreme Court held that trust lands could only
be acquired for tribes that were under Federal jurisdiction
when the IRA was adopted in 1934. Because the IRA is the only
general statute that authorized the Secretary of the Interior
to take land into trust for Indian tribes, tribes that cannot
make this showing face the prospect of never regaining a
permanent homeland.
Scholars and practitioners alike immediately decried the
Court's extraordinarily cramped reading of the statutory text
and predicted that the decision would wreak havoc throughout
Indian Country by encouraging ways of litigation, stifling
economic development, and creating dividing lines between
tribes that Congress had sought to abolish.
Sadly, those predictions have come true in the decade that
has followed. Frivolous lawsuits have abounded. Local
governments and private citizens have challenged the trust
acquisitions of dozens of tribes that were obviously under
Federal jurisdiction in 1934. Litigants have often used
lawsuits to challenge land that has already been taken into
trust.
For example, in 2015, a tax assessor in Alabama assessed
property taxes on land that was taken into trust 30 years
before for the Poarch Band of Creek Indians. The tribe
obviously won this case, but not until it had litigated it all
the way to the 11th Circuit.
Of course, not all Carcieri challenges are frivolous. In
2014, the Department of the Interior issued a formal opinion
which provides a two-part framework for determining whether an
Indian tribe was under Federal jurisdiction in 1934. The
problem is that finding and assembling the information
necessary to satisfy this two-part inquiry is daunting. Federal
records and correspondence needed to demonstrate these actions
are scattered throughout the country in public archives and in
private collections. And when tribes gather all of this
documentation, they can do so only to have the rules suddenly
shift.
The Mashpee Wampanoag Tribe find themselves in just this
position. In September 2018, the Department refused to reaffirm
the status of the tribe's reservation and it did so even though
the Mashpee submitted documentation, for example, that showed
that a significant number of Mashpee children attended the
Carlisle Boarding School. Mashpee members were included on
Federal census roles and the Federal Government recognized the
tribe's hunting, fishing, and gathering rights. This is all
evidence that has previously been considered to be sufficient
to withstand a Carcieri challenge.
The consequences for Mashpee have been extraordinary. The
tribe has broken ground on their casino and apparently owes
more than $300 million, yet construction is indefinitely
stalled and the tribe has no more access to capital. Without
trust lands, the tribe does not qualify for even the most basic
Federal programs such as food distribution programs, burial
assistance, and adult care assistance. All of these programs
are administered for Indians that live on or near a
reservation, and the Federal Government now tells the Mashpee
that they do not.
The Mashpee are just one example of why trust lands are so
vital. They are the only lands that are permanently held for
the benefit of an Indian tribe. Trust lands can't be taxed;
they can't be condemned or otherwise alienated without tribal
or congressional authorization. Trust lands are also the only
lands on which tribes' sovereignty has never been questioned.
Permanency and sovereign authority are necessary components for
a true homeland for Indian tribes and this can only be achieved
with trust land.
As Dean Washburn already mentioned, there is simply no
policy justification for using 1934 as a magical date that
limits access to such an important benefit. Moreover, it is not
even this date of tribal acknowledgement, but rather the manner
in which an Indian tribe became acknowledged that has proved
crucial following Carcieri. Tribes that were recognized by
Congress are almost always insulated from the impacts of
Carcieri through express provisions in the recognition bills
that allow fee-to-trust applications. It is only tribes that
went through the office of Federal acknowledgement's grueling
recognition process that are now faced with never receiving any
land into trust. Many of them waited years and expended
millions of dollars to obtain acknowledgement as a federally
recognized tribe only to find that the benefits of that
decision are elusory.
I urge the members of this Committee to support H.R. 375,
which will once again clarify that the benefits of the IRA are
available to all federally recognized tribes. Thank you.
[The prepared statement of Ms. Routel follows:]
Prepared Statement of Colette Routel, Professor of Law & Director of
the Indian Law Program, Mitchell Hamline School of Law * on H.R. 375
---------------------------------------------------------------------------
* The comments expressed herein are solely those of the author as
an individual member of the academic community; the author does not
represent Mitchell Hamline School of Law for purposes of this
testimony.
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Chairman Grijalva, Ranking Member Bishop, and members of the
Committee. Thank you for allowing me to appear before you today to
testify about H.R. 375, a bill to amend the Indian Reorganization Act.
Background on the IRA and the Supreme Court's Decision in Carcieri v.
Salazar
The Indian Reorganization Act (``IRA''), 48 Stat. 984 (codified as
amended at 25 U.S.C. Sec. 5101 et seq.), is one of the most important
pieces of legislation directly affecting Indians. When enacted by
Congress in June 1934, it signaled a major reversal of governmental
policy in Indian affairs. Previously, the United States had
aggressively attempted to eradicate tribalism and assimilate individual
Indians into white society. The linchpin of this assimilationist policy
was the General Allotment Act of 1887 (``GAA''), which broke up tribal
reservations into individual 160-acre allotments, while authorizing the
remaining ``surplus lands'' to be sold to non-Indians. As a result of
the GAA, Indian lands were diminished from 138 million acres to just 52
million acres in less than 50 years. By the 1930s, the Federal
Government realized the devastating impact that this policy was having
on Indian communities, and it decided to abruptly reverse course. As
the principal component of the Indian New Deal, the IRA was intended to
promote tribal self-government and ultimately restore to Indian tribes
the management of their own affairs. See Morton v. Mancari, 417 U.S.
535, 542 (1974) (noting that the IRA was passed to ``establish
machinery whereby Indian tribes would be able to assume a greater
degree of self-government, both politically and economically'').
Land was recognized as essential to the achievement of these goals.
Consequently, the IRA precluded allotment of future reservations. 25
U.S.C. Sec. 5101. Unsold ``surplus'' lands could be returned to the
tribe at the discretion of the Secretary of the Interior. 25 U.S.C.
Sec. 5103. Importantly, the Secretary of the Interior was authorized to
acquire new trust land for the benefit of tribes. Section 5 of the IRA
reads as follows:
The Secretary of the Interior is hereby authorized, in his
discretion, to acquire through purchase, relinquishment, gift,
exchange, or assignment, any interest in lands, water rights or
surface rights to lands, within or without existing
reservations, including trust or otherwise restricted
allotments whether the allottee be living or deceased, for the
purpose of providing land for Indians.
IRA, Sec. 5, codified at 25 U.S.C. Sec. 5108. Section 5 of the IRA
remains the only general statute that authorizes the Secretary of the
Interior to take land into trust for Indian tribes.
In 2009, the U.S. Supreme Court decided Carcieri v. Salazar, 555
U.S. 379 (2009), a decision which disrupted 70 years of agency practice
in acquiring trust lands for Indian tribes. The Carcieri Court held
that Section 5 of the IRA must be read in conjunction with the Act's
definition of ``Indian,'' which was limited, in relevant part, to
``persons of Indian descent who are members of any recognized Indian
tribe now under Federal jurisdiction.'' IRA, Sec. 19. According to the
Court, the word ``now'' unambiguously referred to the year that the IRA
was enacted (1934), rather than the moment when the Secretary decided
to take land into trust for the benefit of a particular tribe. Thus,
following Carcieri, any tribe seeking the benefits of Section 5 of the
IRA was required to establish that it was ``under Federal
jurisdiction'' in 1934.
Scholars and practitioners alike immediately decried the Court's
extraordinarily cramped reading of the statutory text and noted that
the decision would wreak havoc throughout Indian Country by encouraging
waves of litigation, stifling economic development, and creating
dividing lines between tribes that Congress had sought to abolish.
Sadly, those predictions have all come true in the decade that has
followed. H.R. 375 is necessary to right the wrongs that have flowed
from the Court's decision in Carcieri.
The Original Meaning of ``Under Federal Jurisdiction''
The Supreme Court's decision in Carcieri provided very little
guidance on the meaning of ``under Federal jurisdiction,'' even though
Indian tribes would now need to demonstrate that they satisfied this
concept as of 1934 in order for the Federal Government to take land
into trust on their behalf. Today, ``under Federal jurisdiction'' may
be considered synonymous with Federal recognition, but in 1934, Federal
recognition of Indian tribes ``was only beginning to take shape,'' and
it ``was not universally applied, accepted or frankly, understood.''
William W. Quinn, Jr., Federal Acknowledgment of American Indian
Tribes: The Historical Development of a Legal Concept, 34 Am. J. Legal
Hist. 331, 347 (1990). The terms ``recognize'' and ``acknowledge'' were
more often used simply in the cognitive sense, indicating that a
particular tribe was known to the United States, and even then, no
comprehensive list of Indian tribes acknowledged by the United States
existed prior to 1934. Id. at 339.
The IRA's text and legislative history did not define the phrase
``under Federal jurisdiction.'' This phrase was hastily added to the
bill following a confusing colloquy in a hearing before the Senate
Committee on Indian Affairs on May 17, 1934. To Grant to Indians Living
under Federal Tutelage the Freedom to Organize for Purposes of Local
Self-Government and Economic Enterprise: Hearing on S. 2755 before the
Senate Committee on Indian Affairs, 73d Cong., 2d Sess., at 237 (May
17, 1934) (``May 17, 1934 Hearing''). It is difficult to interpret the
intent of any legislation, and the legislative history of the IRA is
particularly challenging because two of the individuals primarily
responsible for its passage--Commissioner of Indian Affairs John
Collier and Chairman of the Senate Committee on Indian Affairs Burton
Wheeler--had divergent views about the ultimate aims of Federal Indian
policy. Senator Wheeler still believed that the government should be
pursuing a policy of forced assimilation, while Commissioner Collier
believed that the Federal Government should encourage the
revitalization of traditional religious beliefs, arts and crafts, and
governmental institutions. See generally Kenneth R. Philip, John
Collier's Crusade for Indian Reform 1920-1954 (1977); Elmer R. Rusco, A
Fateful Time: The Background and Legislative History of the Indian
Reorganization Act 292-93 (2000).
In six different hearings held throughout April and May 1934,\1\
Chairman Wheeler expressed his concerns that the term ``recognized
Indian tribe'' was over-inclusive and would require the guardian-ward
relationship to be permanently maintained over tribes and tribal
members that, in his view, had or would become, fully assimilated into
white culture. Specifically, Chairman Wheeler argued that certain
Indians in California, Montana and Oklahoma were capable of handling
their own affairs, and in the future, they must be given fee title to
their property. Near the end of the hearing on May 17, 1934, Wheeler
pressed these concerns, noting that there were ``several so-called
`tribes' '' in northern California that were comprised of ``white
people essentially,'' ``[a]nd yet they are under the supervision of the
Government of the United States, and there is no reason for it at all,
in my judgment.'' May 17, 1934 Hearing at 263-66. In response to these
concerns, Commissioner Collier stated:
---------------------------------------------------------------------------
\1\ The Senate Committee on Indian Affairs held hearings on the
draft bill on April 26, 28, 30 and May 3, 4, and 17, 1934.
Commissioner COLLIER. Would this not meet your thought,
Senator: After the words ``recognized Indian tribe'' in line 1
insert ``now under Federal jurisdiction''? That would limit the
act to the Indians now under Federal jurisdiction, except that
other Indians of more than one-half Indian blood would get
---------------------------------------------------------------------------
help.
Id. at 266. And the bill was thus amended. This is the only mention of
the phrase ``now under Federal jurisdiction'' in the legislative
history. Contrary to the Supreme Court's decision in Carcieri, this
legislative history appears to support an interpretation of the word
``now'' that would not freeze in time the status of tribes in 1934, but
rather, allow the Federal Government to alter that status in the
future. After all, Chairman Wheeler admitted that the persons he was
especially concerned about were currently ``under the supervision of
the Government of the United States,'' and he wished to change that at
a future date.\2\
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\2\ Justice Thomas' majority opinion in Carcieri v. Salazar fails
to discuss any of this legislative history. At a minimum, both the
language and the legislative history of the statute should have been
enough to establish that the word ``now'' was ambiguous. Then, the
Court should have deferred to the agency's long-established practice in
interpreting Section 5 of the IRA, which would have also comported with
the Indian canons of construction that require ambiguous language in
Indian-specific legislation to be read in favor of preserving tribal
rights.
Not long after this language was added to the bill, Felix Cohen,
the Assistant Solicitor, expressed his concerns. Cohen drafted a
memorandum attempting to explain the differences between the Senate and
House versions of the bill, and he noted that the Senate bill ``limits
recognized tribal membership to those tribes `now under Federal
jurisdiction,' whatever that may mean.'' National Archives Record
Administration, Washington, DC. (NARA-DC), Record Group (RG) 75,
Records Concerning the Wheeler-Howard Act, 1933-1937, Box 10,
Memorandum of Felix Cohn, Differences Between House Bill and Senate
Bill, at 2 (emphasis added). In a later analysis, Cohen explicitly
advocated for the removal of the phrase ``under Federal jurisdiction,''
noting that it was likely to ``provoke interminable questions of
interpretation.'' NARA-DC, RG 75, Records Concerning the Wheeler-Howard
Act, 1933-1937, Box 11, Analysis of Differences Between House Bill and
Senate Bill, at 14-15. Unfortunately, Cohen's advice was not heeded,
and the statute was adopted with the phrase remaining.
The Litigation that Followed
Following the Supreme Court's decision in Carcieri, the question
became whether ``under Federal jurisdiction'' referred to tribes that
were subject to Congress' power,\3\ or, more narrowly, only to those
tribes that the Federal Government had exercised its power over. If the
latter were the interpretation adopted by the courts, extensive
historical documentation would need to be gathered as part of any fee-
to-trust application. Thus, Indian Country braced itself for a series
of legal challenges designed to define this phrase. Still, no one could
have anticipated the number of frivolous challenges to trust
acquisitions that have been lodged over the past decade. States and
local governments with strained relationships toward resident Indian
tribes have exploited Carcieri to delay trust acquisitions or increase
the costs of such acquisitions even in circumstances were no reasonable
argument could be made that a particular tribe was not under Federal
jurisdiction in 1934.
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\3\ Congress may not ``bring a community or body of people within
the range of [its] power by arbitrarily calling them an Indian tribe.''
United States v. Sandoval, 231 U.S. 28 (1913).
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A little bit of additional background is required to explain the
absurdity of the challenges that ensued. The IRA sought to encourage
tribal self-government, and as a result, the Federal Government sought
tribal consent to its provisions through an election that was supposed
to be called by the Secretary of the Interior on each reservation.
Additionally, the IRA encouraged tribes to adopt written constitutions
or corporate charters, which would only become effective when ratified
by a majority vote of the adult members of the tribe residing on the
reservation. IRA, Sec. Sec. 16, 17. Theodore Haas, who was Chief
Counsel for the Bureau of Indian Affairs in the 1940s, compiled a
pamphlet entitled Ten Years of Tribal Government Under the IRA (1947).
This pamphlet listed the tribes that voted to accept or reject the IRA
in the years immediately following its enactment, and it also listed
the tribes that had voted on tribal constitutions and corporate
charters. The so-called Haas lists certainly do not include all of the
Indian tribes who were ``under Federal jurisdiction'' in 1934. For
example, only tribes with existing land bases were permitted to
organize as constitutional governments under the IRA; elections were
not called for landless tribes. IRA, Sec. 16 (permitting the
organization of ``[a]ny Indian tribe, or tribes, residing on the same
reservation . . .''). Nevertheless, the Haas lists should provide
irrefutable evidence for those tribes that are mentioned, because they
demonstrate that the Federal Government immediately consulted them to
determine if, when, and how the IRA would be implemented on their
reservations.
Despite this, local governments and private citizens have
challenged the trust acquisitions of dozens of tribes including on the
Haas lists. The Fond du Lac Band of Ojibwe faced significant delays
when it asked that a parcel of land be taken into trust for uses
including protection of historical and cultural sites, preservation of
sugar bush and riparian lands, and the creation of affordable housing.
Saint Louis County objected to the proposed trust acquisition on
Carcieri grounds. The County did so even though the Minnesota Chippewa
Tribe, of which the Fond du Lac Band is a part, (1) voted to accept the
IRA on October 27th and November 17, 1934, and (2) adopted an IRA-
approved Constitution in 1936. While the County eventually admitted
that these votes were conclusive evidence that the Band was ``under
Federal jurisdiction'' in 1934, the Band's trust acquisition was
delayed by more than a year due, in part, to this frivolous claim.
The Mille Lacs Band of Ojibwe is also a constituent band of the
Minnesota Chippewa Tribe. It is a successor in interest to at least
seven treaties with the United States, including an 1837 treaty under
which the Band still possesses off-reservation hunting, fishing and
gathering rights reaffirmed by the U.S. Supreme Court. Minnesota v.
Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). Congress
passed numerous statutes for the benefit of the Band prior to the IRA's
enactment, and case law expressly recognized the Federal Government's
continuing obligations to the Band. United States v. Mille Lac Band of
Chippewa Indians, 229 U.S. 498, 507 (1913) (recognizing the Band's
continuing interest in reservation lands). Finally, the Band adopted an
IRA Constitution in 1936 (as a constituent Band of the Minnesota
Chippewa Tribe, specifically referred to in the Constitution as ``the
non[-]removal Mille Lac Band of Chippewa Indians''), a corporate
charter in 1937, and a local governance charter in 1939. Despite all of
this, Mille Lacs County challenged the Department's decision to take
land into trust for housing purposes, arguing that the Mille Lacs Band
was not under Federal jurisdiction in 1934. Mille Lacs County v. Acting
Midwest Regional Director, 62 IBIA 130 (2016). While the Interior Board
of Indian Appeals (``IBIA'') ultimately rejected this challenge, it did
not do so until 2\1/2\ years following the Acting Midwest Regional
Director's decision to take the land into trust.
These are not isolated instances. The Oneida Nation of Wisconsin
has twice faced Carcieri challenges to its fee-to-trust applications.
Village of Hobart v. Acting Midwest Regional Director, 57 IBIA 4 (2013)
(rejecting Village of Hobart's Carcieri challenge and noting that the
Nation was party to treaties with the United States, subjected to
various congressional acts, voted to accept the IRA in 1934, and
adopted an IRA Constitution in 1936); Dillenburg v. Midwest Regional
Director, 63 IBIA 56 (2016) (rejecting same arguments made by private
citizens). Likewise, dozens of other tribes on the Haas lists have
faced similar challenges to their fee-to-trust applications, many of
which have been appealed (unsuccessfully) to the IBIA and Federal
courts. See, e.g., Stand Up for California! v. U.S. Dep't of the
Interior, 204 F. Supp. 3d 212 (D.D.C. 2016), aff'd 879 F.3d 1177 (D.C.
Cir. 2018) (North Fork Rancheria); Starkey v. Pacific Regional
Director, 63 IBIA 254 (2016) (La Posta Band of Mission Indians), New
York v. Acting Eastern Regional Director, 58 IBIA 323 (2014) (Oneida
Nation of New York); Thurston County v. Great Plains Regional Director,
56 IBIA 296 (2013) (Nebraska Winnebago Tribe); Shawano County v. Acting
Midwest Regional Director, 53 IBIA 62 (2011) (Stockbridge-Munsee
Community).
Litigants have not been content, however, to challenge current
applications to take land into trust. The Supreme Court amplified the
litigation risk posed by Carcieri in its decision in Match-E-Be-Nash-
She-Wish Band of Potawatomi v. Patchak, 567 U.S. 209 (2012). In
Patchak, the Court interpreted the Quiet Title Act to allow certain
retroactive challenges to lands that had already been taken into trust.
Prior to Patchak, states and local governments seeking to challenge
trust land acquisitions were required to file their lawsuits within 30
days. 25 C.F.R. Sec. 151.12(b)(2012).\4\ Immediately after Patchak, the
APA's general 6-year statute of limitations applied to challenges of
trust acquisitions.
---------------------------------------------------------------------------
\4\ Prior to Patchak, if challenges were filed within the 30-day
window, as a matter of policy, the Department would not take the land
into trust until after the lawsuit had been resolved. If litigants
missed this 30-day deadline, however, the land was taken into trust and
all challenges to the acquisition were believed to be barred.
---------------------------------------------------------------------------
Emboldened by Patchak, litigants sought to remove land that had
already been taken into trust for tribes--sometimes decades earlier--by
claiming that they were not ``under Federal jurisdiction'' in 1934. And
when these lawsuits failed, new and creative collateral attacks were
filed. See, e.g., Alabama v. PCI Gaming Auth., 15 F.Supp.3d 1161 (N.D.
Ala. 2014), aff'd, 801 F.3d 1278, 1291 (11th Cir. 2015) (noting that
the ``proper vehicle'' for challenging the Secretary's authority to
take land into trust for the Poarch Band of Creek Indians was a timely
APA challenge, not a collateral challenge to a decision made by the
Secretary decades earlier); Big Lagoon Rancheria v. California, 789
F.3d 947, 952-53 (9th Cir. 2015) (en banc) (rejecting a Carcieri
argument raised outside the APA context). For example, in 2015, a tax
assessor in Escambia County, Alabama assessed property taxes on land
that was taken into trust in 1984 for the Poarch Band of Creek Indians.
The assessor apparently claimed that the land was ``illegally'' taken
into trust because the Poarch Band was not ``under Federal
jurisdiction'' in 1934, and therefore, the tax-exempt status of its
land should not be recognized. The Tribe sued to stop this assessment
and was granted a preliminary injunction by the Federal district court.
The Eleventh Circuit upheld that decision, noting that it had
previously rejected a collateral attack on the same parcel of land in
PCI Gaming. Poarch Band of Creek Indians v. Hildreth, 656 Fed. Appx.
934 (11th Cir. 2016).
The Current Meaning of ``Under Federal Jurisdiction''?
In 2014, an official M-Opinion was issued by the Department of the
Interior, which provides a framework for determining whether an Indian
tribe is ``under Federal jurisdiction'' in 1934. Memorandum from
Solicitor Hilary Tompkins to Secretary Sally Jewell, The Meaning of
Under Federal Jurisdiction for Purposes of the Indian Reorganization
Act, M-37029 (Mar. 12, 2014). In that opinion, the Solicitor required
that tribes meet a two-part test. First, there must be evidence prior
to 1934 that the United States took ``an action or series of actions--
through a course of dealings or other relevant acts for or on behalf of
the tribe or in some instance tribal members--that are sufficient to
establish, or that generally reflect Federal obligations, duties,
responsibility for or authority over the tribe by the Federal
Government.'' Id. at 19. Second, tribes must demonstrate that their
``jurisdictional status remained intact in 1934.'' Id. To date, courts
appear to have adopted this two-part framework. E.g., Confederated
Tribes of the Grand Ronde Cmty. v. Jewell, 830 F.3d 552 (D.C. Cir.
2016) (adopting two-part test and concluding that the Cowlitz tribe was
``under Federal jurisdiction'' in 1934).
Finding and assembling the information necessary to satisfy this
two-part inquiry, however, is daunting. The M-Opinion provides examples
of evidence sufficient to establish Federal obligations, duties, and
authority over the tribe, which:
may include, but is certainly not limited to, the negotiation
of and/or entering into treaties; the approval of contracts
between a tribe and non-Indians; enforcement of the Trade and
Intercourse Acts (Indian trader, liquor laws, and land
transactions); the education of Indian students at BIA schools;
and the provision of health or social services to a tribe.
M-37029, at 19.
Federal records and correspondence needed to demonstrate these
actions are scattered throughout the country in public archives and
private collections. If, for example, you were looking for information
on Minnesota Indian tribes, at a minimum, you would need to search the
National Archives in Chicago, Illinois and Washington, DC, as well as
local historical societies in the states of Minnesota and Wisconsin.
Additionally, the dates and types of documents often sought in response
to Carcieri challenges are extremely time consuming to gather. From
1887 through 1906, for example, all historical correspondence from
Indian agents to the Commissioner of Indian Affairs are filed in
chronological order of receipt in the National Archives in Washington,
DC. To find relevant documents, the researcher must engage in a multi-
step process: (1) identify key words (e.g., names of officials, tribal
members, locations, and activities); (2) use those key words to search
a microfilmed index that provides only the numbers of letters that were
received from Indian agents and private citizens throughout the United
States; (3) use a finding aid to determine what box a particular
numbered letter is in; and (4) request that box at one of the specific
National Archives pull times. Many letters are missing from their
assigned boxes, others may be irrelevant, and only 10-15 boxes may be
requested for an individual pull. Researching documents in this manner
requires a significant expenditure of time, and therefore, money.
The M-Opinion specifically references ``the education of Indian
children at BIA schools,'' as a category of documents that can be used
to demonstrate that a tribe was ``under Federal jurisdiction'' prior to
1934. Finding these documents, however, is even more time consuming
than the process described above. Records for Indian children are
typically organized by the child's last name, not by his or her tribal
affiliation. Therefore, genealogies or tribal membership lists are
often needed to identify potentially relevant records. And since Indian
children were sent to boarding schools throughout the country, a
researcher may need to visit document collections in more than three
different locations.
Even more distressing, after expending all of these resources, a
tribe may gather this documentation only to be told that it is
inadequate. The Mashpee Wampanoag Tribe find themselves in just such a
position. On March 20, 2013, Solicitor Tompkins wrote Mashpee Wampanoag
Tribal Chairman Cedric Cromwell, to inform him about the status of the
tribe's pending fee-to-trust application. Tompkins noted that ``[t]he
majority of Carcieri determinations require a comprehensive, fact-
intensive analysis that can be time intensive and costly.'' The
Department ultimately decided to forego this determination and take the
321-acre parcel of land into trust for the tribe under a different
provision of the IRA, in 2015. But after local residents succeeded in a
Federal court lawsuit that required the Department to take another look
at its decision, the Mashpee were forced to engage in this ``time
intensive and costly'' process and to collect the kind of information
identified in the case law that has developed in case law and in the M-
Opinion.
The Mashpee submitted extensive documentation to the Department
establishing that the tribe was ``under Federal jurisdiction'' in 1934.
For example, the tribe submitted correspondence, health records, and
other school records for a significant number of Mashpee children who
attended the Carlisle Indian Industrial School until 1918, when the
school closed. Even though the M-Opinion specifically references ``the
education of Indian students at BIA schools,'' and even though such
evidence has been relied on by several Federal courts in Carcieri-
related cases, in September 2018, the Department essentially rejected
that evidence when it refused to reaffirm the status of the tribe's
reservation.
The consequences for the Mashpee Wampanoag Tribe have been
extraordinary. They had already broken ground on their tribal casino
and apparently owe more than $300 million, yet construction is
indefinitely stalled and the tribe has no more access to capital.
Without any trust lands, the tribe does not qualify for even the most
basic Federal programs. See, e.g., 7 C.F.R. Part 253, 254 (Department
of Agriculture food distribution program only applies to low-income
Indians residing on or near a reservation); 25 C.F.R. Part 20 (Federal
social service programs including burial assistance, disaster
assistance, and adult care assistance) are available only to Indians
who reside ``on or near reservations''); 25 C.F.R. Part 26 (Indian
employment assistance programs are only available to those persons
residing on or near Indian reservations). The Tribe has had to layoff
employees and its tribal council is working without pay.
What Policy Justifications Support 1934 as the Dividing Line?
As the Mashpee make clear, trust lands are vital. They are the only
lands permanently held for the benefit of an Indian tribe.
Historically, millions of acres were lost due to the inability of the
tribe or tribal members to pay real property taxes or mortgage debts.
Charles F. Wilkinson, American Indians, Time and the Law 20 (1987)
(noting that prior to the adoption of the IRA, more than 26 million
acres of allotted land left Indian hands due to fraud, mortgage
foreclosures, and tax sales). While land remains in fee status, state
powers of eminent domain could be employed take a right-of-way across
that land for pipelines or other projects, potentially destroying
cultural and historic resources. Trust land, on the other hand, cannot
be taxed, condemned or otherwise alienated without either tribal
consent or express congressional authorization. See e.g., 25 C.F.R.
Sec. 152.22 (requiring Secretarial approval to convey trust lands); 25
C.F.R. Part 169 (requiring tribal consent and Secretarial approval for
rights-of-way across trust lands); United States v. Rickert, 188 U.S.
432 (1903) (precluding state taxation of trust property); The New York
Indians, 72 U.S. 761 (1867) (precluding state taxation and tax
forfeiture proceedings against tribal lands); The Kansas Indians, 72
U.S. 737 (1867) (same).
Trust lands are also the only lands on which the tribe's sovereign
authority is undisputed. Tribes exercise sovereignty over trust lands
regardless of whether they are located inside or outside reservation
boundaries. See 18 U.S.C. Sec. 1151 (defining ``Indian country'' to
include ``dependent Indian communities,'' and allotments still held in
trust); Alaska v. Native Village of Venetie Tribal Government, 522 U.S.
520 (1998) (noting that ``dependent Indian communities'' includes land
that is under Federal superintendence and has been set aside by the
Federal Government for the use of a tribe). And while the U.S. Supreme
Court has limited tribal sovereignty over non-members on fee land, it
has not done so on trust lands. Compare Plains Commerce Bank v. Long
Family Land and Cattle Co., 554 U.S. 316 (2008) (claiming that ``[o]ur
cases have made clear that once tribal land is converted into fee
simple, the tribe loses plenary jurisdiction over it,'' and stating
that ``the tribe has no authority itself, by way of tribal ordinance or
actions in the tribal courts, to regulate the use of fee land''), with
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (upholding
tribal severance tax on natural resources removed by nonmembers from
trust lands), and New Mexico v. Mescalero Apache Tribe, 462 U.S. 324
(1983) (holding that the state could not ``restrict an Indian Tribe's
regulation of hunting and fishing'' on trust lands within its
reservation). Permanency and sovereignty authority are, in essence,
what makes the land a true homeland for Indian tribes. Trust lands are
necessary for both.
The Carcieri decision has created two classes of tribes: those that
were ``under Federal jurisdiction'' in 1934, and those that were not.
The benefits of the IRA are now unavailable to the latter group. If the
latter group did not possess land prior to 2009, when the Carcieri
decision was handed down, it faces the prospect of never regaining a
permanent homeland. Congress never intended this result.
Securing trust lands for Indian tribes was always considered
necessary to promote economic security and self-determination, which
were the main goals of the IRA. H.R. Rep. No. 1804, 73d Cong., 2d
Sess., 6 (1934). It should not be surprising that the legislative
history for the IRA is therefore replete with references to the need to
help ``landless Indians.'' Id. (stating that the IRA would ``make many
of the now pauperized, landless Indians self-supporting''); 78 Cong.
Rec. 11,370 (1934) (statement of Representative Howard, one of the
bill's co-sponsors, stating Section 5 of the IRA would ``provide land
for Indians who have no land or insufficient land''); 78 Cong. Rec.
11,726 (1934) (noting that the IRA would authorize ``the purchase of
additional lands for landless Indians''). In fact, there are so many
references to ``landless Indians'' that some have argued--incorrectly--
that the IRA's land provisions were only designed to help such tribes
and tribal members. See South Dakota v. U.S. Dep't of Interior, 423
F.3d 790, 798 (8th Cir. 2005) (``Although the legislative history [of
the IRA] frequently mentions landless Indians, we do not believe that
Congress intended to limit its broadly stated purposes of economic
advancement and additional lands for Indians to situations involving
landless Indians''); South Dakota v. Acting Great Plains Regional
Director, 39 IBIA 283, 289-90 (2004) (noting that Indians need not be
landless for the Secretary to acquire land for them under Section 5 of
the IRA). Ironically, the IRA is now being read to preclude most
landless tribes from acquiring any trust lands.
Subsequent Congresses did not intend this result either. In nearly
every individual tribal recognition statute passed since the 1970s,
Congress provided that the newly recognized or re-recognized tribe was
permitted to utilize all of the rights and benefits provided by the
IRA, including the right to have the Secretary acquire lands in trust
for the tribe.\5\ Additionally, in 1994, Congress enacted amendments to
the IRA that explicitly prohibited any Federal agency from promulgating
a regulation or making a decision ``that classifies, enhances, or
diminishes the privileges and immunities available to the Indian tribe
relative to other federally recognized tribes.'' 25 U.S.C. Sec. 476(f)
& (g). These amendments were passed in direct reaction to informal
policies of the Bureau of Indian Affairs, which had begun classifying
tribes into ``created'' and ``historic'' tribes, limiting the benefits
available to former. Senator Inouye, who co-sponsored the legislation,
told Congress that:
---------------------------------------------------------------------------
\5\ See, e.g., Tonto Apache Tribe of Arizona, P.L. 92-470 (Oct. 6,
1972) (``The Payson Community of Yavapai-Apache Indians shall be
recognized as a tribe of Indians within the purview of the Act of June
18, 1934 . . . and shall be subject to all of the provisions
thereof''); Pasqua Yaqui of Arizona, P.L. 95-375 (Sept. 18,1978) (``The
provisions of the Act of June 18, 1934 . . . are extended to such
members described in subsection (a) of this section''); Cedar City Band
of Paiutes in Utah, P.L. 96-227 (Apr. 3, 1980) (``The provisions of the
Act of June 18, 1934 . . . except as inconsistent with the specific
provisions of this Act, are made applicable to the tribe and the
members of the tribe.''); Ysleta Del Sur Pueblo of Texas, P.L. 100-89
(Aug. 18, 1987) (``The Act of June 18, 1934 (28 Stat. 984) as amended .
. . shall apply to members of the tribe, the tribe, and the
reservation''); Lac Vieux Desert Band of Lake Superior Chippewa, P.L.
100-420 (Sept. 8, 1988) (``The Act of June 18, 1934 (48 Stat. 984), as
amended, and all laws and rules of law of the United States of general
application to Indians, Indian tribes, or Indian reservations which are
not inconsistent with this Act shall apply to the members of the Band,
and the reservation''); Yurok Tribe of California, P.L. 100-580 (Oct.
31, 1988) (``The Indian Reorganization Act of June 18, 1934 (48 Stat.
984; 25 U.S.C. 461 et seq.), as amended, is hereby made applicable to
the Yurok Tribe''); Pokagon Band of Potawatomi Indians of Michigan,
P.L. 103-323 (Sept. 21, 1994) (``Except as otherwise provided in this
Act, all Federal laws of general application to Indians and Indian
tribes, including the Act of June 18, 1934 . . . shall apply with
respect to the Band and its members''); Little River Band of Ottawa
Indians and Little Traverse Bay Bands of Odawa Indians, P.L. 103-324
(Sept. 21, 1994) (``All laws and regulations of the United States of
general application to Indians or nations, tribes, or bands of Indians,
including the Act of June 18, 1934 . . . which are not inconsistent
with any specific provision of this Act shall be applicable to the
Bands and their members'').
The amendment which we are offering . . . will make it clear
that the Indian Reorganization Act does not authorize or
require the Secretary to establish classifications between
Indian tribes. . . . [I]t is and has always been Federal law
and policy that Indian tribes recognized by the Federal
Government stand on an equal footing to each other and to the
Federal Government. . . . Each federally recognized Indian
tribe is entitled to the same privileges and immunities as
other federally recognized tribes and has the right to exercise
the same inherent and delegated authorities. This is true
without regard to the manner in which the Indian tribe became
recognized by the United States or whether it has chosen to
organize under the IRA. By enacting this amendment . . ., we
will provide the stability for Indian tribal governments that
the Congress thought it was providing 60 years ago when the IRA
---------------------------------------------------------------------------
was enacted.
140 Cong. Rec. S6147, 1994 WL 196882 (May 19, 1994).
The language and intent of the 1994 List Act is contrary to the
Court's decision in Carcieri, which now requires the Department to
distinguish between tribes that were ``under Federal jurisdiction'' in
1934, and those that were not. The practical distinction, however, ends
up being different. It is not the date of tribal acknowledgment, but
rather, the manner in which an Indian tribe became acknowledged that is
crucial. As noted above, tribes that were recognized by Congress are
generally insulated from the impacts of Carcieri through express
provisions in their recognition bills that make the IRA applicable to
both the tribe and its members. Indeed, many tribal acknowledgment
bills passed by Congress include more favorable fee-to-trust
provisions, which eliminate the Secretary's discretion and instead
mandate that certain lands (either determined by quantity, location, or
both) be taken into trust for the tribe. This demonstrates that
Congress has always understood the vital importance of trust lands to
tribal sovereignty.
The only tribes faced with the inability of the Federal Government
to take any land into trust for their benefit are a subset of those
tribes recognized through the Office of Federal Acknowledgment
(``OFA''). Drawing a distinction between congressionally recognized and
OFA-recognized tribes to the detriment of the latter group, simply
makes no sense. These are tribes that have already proven their
continuous existence from 1900 to the present through expert reports
and primary source documents. Many of them have waited years and
expended millions of dollars to obtain acknowledgment as a federally
recognized tribe only to find the benefits of that decision illusory.
I urge the members of this Committee to support H.R. 375, which
will once again clarify that the benefits of the IRA are available to
all federally recognized tribes. Each time the Federal Government takes
land into trust, it helps a tribe use the land to build housing, to
protect cultural resources, or to pursue economic development necessary
to fund tribal governmental operations and services. The Federal
Government has an obligation to reverse the impacts of misguided
Federal policies that deprived tribes of their lands and resources and
sought to stamp out their unique identity. Adopting a clean Carcieri-
fix would be one step in that direction.
Thank you.
______
Questions Submitted for the Record by Rep. Bishop to Colette Routel,
Professor of Law, Mitchell Hamline School of Law
Question 1. In your written statement, you explain that the
Solicitor of the Interior in 2013 decided to forgo the usual Carcieri
determination for the Mashpee. Land was later taken in trust for the
Mashpee ``under a different provision of the IRA . . .'' [Written
Statement, page 7]. To clarify, is this ``different provision of the
IRA'' the so-called ``second definition'' of ``Indian'' in section 19
of that Act? If so, then to the best of your knowledge, has the
Department ever acquired land in trust under the IRA for any other
tribe under the second definition of ``Indian''?
Answer. The IRA's second definition of ``Indian.'':
In my written testimony previously provided to the Subcommittee, I
noted that the Department of the Interior (``Department'') initially
decided to forego making a Carcieri determination for the Mashpee
Wampanoag, and instead took land into trust for the tribe ``under a
different provision of the IRA'' in 2015. Ranking Member Bishop asked
whether this ``different provision'' was the second definition of
``Indian'' in Section 19 of the Indian Reorganization Act (``IRA''),
and if so, whether I knew of any instances of the Department previously
invoking this definition. The answer to these questions is ``yes.''
Section 19 of the IRA defines the term ``Indian'' as follows:
The term ``Indian'' as used in this Act shall include all
persons of Indian descent who are members of any recognized
Indian tribe now under Federal jurisdiction, and all persons
who are descendants of such members who were, on June 1, 1934,
residing within the present boundaries of any Indian
reservation, and shall further include all other persons of
one-half of more Indian blood . . . .
The italicized portion of this Section is the so-called ``second
definition,'' which was used by the Department in its initial decision
to take land into trust for the Mashpee. To date, I have not
specifically set out to research the historical implementation of this
provision. I do, however, know of at least two instances where this
provision was used to ensure that tribes had access to the benefits of
the IRA: the Saginaw Chippewa Indian Community and the Bay Mills Indian
Community.
In 1855, the ``Ottawa and Chippewa Indians'' and the ``Saginaw,
Swan Creek and Black River Indians'' signed two treaties with the
United States that created several reservations for their benefit in
the state of Michigan. See 1855 Treaty of Detroit, 10 Stat. 591 (``1855
Ottawa and Chippewa Treaty''); Treaty with the Chippewa, 11 Stat. 633
(1855) (``1855 Saginaw Treaty''). Article V of the 1855 Ottawa and
Chippewa Treaty provided that ``[t]he tribal organization of said
Ottawa and Chippewa Indians, except so far as may be necessary for the
purpose of carrying into effect the provisions of this agreement, is
hereby dissolved.'' Article VI of the 1855 Saginaw Treaty contained
nearly identical language. These provisions were included in the
treaties at the request of the tribes. Tribal leaders had expressed
frustration that the government was negotiating with the Ottawa and
Chippewa together, even though they were separate communities. For
example, during negotiations for the 1855 Ottawa and Chippewa Treaty,
Waw-be-geeg, a Chippewa chief from the Upper Peninsula, indicated his
concern several times, noting that ``I told you when I first came that
I wanted to be separated from the Ottawas and you have not answered me.
We have sat here and heard you talk to the Ottawas while you paid no
attention to us.'' George Manypenny, the Commissioner of Indian
Affairs, responded to Waw-be-geeg by stating that the fictious grouping
of the Ottawa and Chippewa bands together as one tribe would be
dissolved in the treaty: ``[t]he very case you suggested is met in the
treaty you are separated as you desire. This treaty you and the Ottawas
must sign together is because the old treaty of 36 was made in that
way, but here we have followed your suggestion and provide . . . that
no general council shall be called'' in the future. United States v.
Michigan, 471 F.Supp. 192, 247-48 (W.D. Mich. 1979) (recounting the
history of Article V of the 1855 Treaty, including excerpts from the
original treaty journal, and concluding that Article V was not meant to
terminate the government-to-government relationship with the Michigan
Ottawa and Chippewa bands).
Years after the 1855 Treaties were ratified, Federal officials who
had not been present for the negotiations misread Articles V & VI, and
incorrectly concluded that they had ended the Federal-tribal
relationship with the Ottawa and Chippewa bands in Michigan. As a
result, by the end of the 19th century, the Federal Government had
abdicated its responsibilities to the bands and repeatedly stated that
they were no longer wards of the government subject to Federal
jurisdiction. E.g., Grand Traverse Band v. Office of U.S. Att'y, 369
F.3d 960, 961-62 n.2 (6th Cir. 2004) (describing the Federal
Government's misinterpretation of Article V of the 1855 Ottawa and
Chippewa Treaty, and its decision to cease recognizing the signatory
tribes).
When the IRA was enacted in 1934, the Department had to determine
whether it would enable these Michigan Indian tribes to access its
benefits. In 1934, the Department still clung to the position that
these tribes had been ``dissolved'' and were no longer ``under Federal
jurisdiction.'' The Department originally expressed interest in
purchasing land and taking that land into trust for half-bloods (i.e.,
the third definition of Indian in the IRA). Ultimately, however, the
Department never followed through on this approach even while it did so
for tribes in neighboring states, such as the St. Croix Band of
Chippewa Indians. 1 Dept. of Interior, Opinions of the Solicitor
Relating to Indian Affairs, 1917-1974, 724-25 (decision recognizing St.
Croix as half-blood community). Instead, the Department encouraged the
Saginaw Chippewa Indian Community and Bay Mills Indian Community to
organize under the IRA's second definition of ``Indian.'' The
Department acknowledged that both Saginaw and Bay Mills maintained
reservations pursuant to the 1855 Treaty, and therefore, the
descendants of persons who were members of those two bands prior to
their dissolution could organize under the IRA if they were residing on
those reservations. Once the bands were organized, they could adopt
constitutional membership criteria that included persons who lived off-
reservation.
By way of example, I am attaching one of the letters articulating
this process for the Saginaw Chippewa Indian Community. In July 1936,
Assistant Commissioner of Indian Affairs, William Zimmerman, wrote to
the Saginaw Chippewa and indicated that ``[a]lthough historically your
group composed the Saginaw, Swan Creek, and Black River Bands, Article
6 of the treaty of August 2, 1855, 11 Stat. 633, made with those bands,
dissolved their tribal organization.'' Because (according to the
Federal Government's misreading of the treaty) the tribe no longer
existed, Zimmerman noted that they should organize under the second
definition of ``Indian'' in the IRA: ``[y]our group also comes within
the term ``Indian'' as defined in section 19 of the Reorganization Act
in view of the fact that your group is composed of descendants of
members of a recognized tribe, residing on June 1, 1934, within the
boundaries of an Indian reservation.'' Zimmerman to Chairman, July 31,
1936, CCF 9060-A-1936, Tomah 068. Zimmerman did not believe that the
Saginaw Chippewa needed to establish that they were ``under Federal
jurisdiction'' as of June 1934; indeed, under his misinterpretation of
the 1855 Treaty, he was saying that the tribe was not under Federal
jurisdiction as of that date.
The Department made a similar determination for the Bay Mills
Indian Community. See, e.g., Amicus Brief of Historians, Carcieri v.
Salazar, at 17-18 (noting that in 1934, Federal officials believed
``that the Bay Mills Indians were no longer `wards of the government'
'' and that ``Commissioner Collier suggested, and the Bay Mills
community agreed, that they should organize as `Indians residing on one
reservation' ''); Charles E. Cleland, The Place of the Pike
(Gnoozhekaaning): A History of the Bay Mills Indian Community 67-73
(2001) (recounting Commissioner Collier's decision, in May 1936, to
allow Bay Mills to organize under the IRA's second definition of
``Indian''). The Federal Government then purchased approximately 1,000
acres of land within or adjacent to Bay Mills' existing reservation and
took that land into trust for the benefit of the tribe. Cleland, supra,
at 70-71.
Unfortunately, the Department did not permit many other Michigan
Ottawa and Chippewa bands to organize, and those tribes had to wait
many years for Congress or the Office of Federal Acknowledgment
(``OFA'') to reaffirm their existence. The Grand River Band of Ottawa
and Chippewa Indians was the first tribe acknowledged by OFA.
Determination for Federal Acknowledgment of the Grand Traverse Band of
Ottawa and Chippewa Indian Tribe, 45 Fed. Reg. 19,321 (1980).\1\ The
Little Traverse Bay Bands of Odawa Indians and the Little River Band
were recognized through congressional legislation. Little River Band of
Ottawa Indians and Little Traverse Bay Bands of Odawa Indians, P.L.
103-324, 108 Stat. 2156 (Sept. 21, 1994). And the Grand River Band is
still seeking Federal acknowledgment; the OFA has promised to issue its
decision with respect to the Band by April 23, 2019. See Letter from
Director, OFA to Chairman, Grand River Band (Mar. 21, 2019), available
at https://www.bia.gov/sites/bia.gov/files/assets/asia/ofa/petition/
146_grrvbd_MI/146_pf_ext_2019_04.pdf.
---------------------------------------------------------------------------
\1\ Justice Breyer noted in his concurring opinion in Carcieri that
tribes such as the Grand Traverse Band were likely ``under Federal
jurisdiction'' in 1934, even though the Federal Government mistakenly
believed they were not. Carcieri v. Salazar, 555 U.S. 379, 397-99
(2009) (Breyer J., concurring). More recently, the Interior Board of
Indian Appeals affirmed the ability of the Department to take land into
trust for the Grand Traverse Band, concluding that the Band did satisfy
the first definition of ``Indian'' in Section 19 of the IRA. Grand
Traverse County Bd. of Comm'rs v. Acting Midwest Reg'l Dir., 61 IBIA
273 (2015).
---------------------------------------------------------------------------
There are undoubtedly more examples of tribes that organized or
otherwise received certain benefits of the IRA under the second
definition of ``Indian.'' These two decisions, however, demonstrate
that the Department's decision to take land into trust for the Mashpee
in 2015 under the IRA's second definition of ``Indian'' was consistent
with its prior rulings. Like the Grand Traverse Band and other Michigan
Indian tribes, in 1934, the Department could have extended the benefits
of the IRA to the Mashpee using any of the IRA definitions of
``Indian,'' \2\ and it was only Federal mistake and/or neglect that
prevented the Mashpee from accessing these benefits. That mistake
should not continue to have the force of law.
---------------------------------------------------------------------------
\2\ The Mashpee had several members in 1934 that were of one-half
or more Indian blood, and therefore, the Department could have also
invoked the third definition of Indian to enable the tribe to organize
under the IRA, as it did for the St. Croix Band.
Question 2. Your written testimony goes into some detail regarding
the intent of the 73rd Congress (particularly the intent of Senator
Burton Wheeler, Chairman of the Senate Indian Affairs Committee) in its
enactment the IRA. According to your testimony, Senator Wheeler was an
assimilationist. Did the other members of the House and Senate Indian
Affairs Committees share or oppose Senator Burton's policy views in
this respect? Are the views of these other Members important in an
analysis of the intent of the 73rd Congress in its enactment of the
---------------------------------------------------------------------------
IRA?
Answer. Views of Congress in enacting the IRA:
My prior testimony highlighted Senator Wheeler's views because the
statutory language interpreted in Carcieri was added in direct response
to the concerns he expressed in a series of committee hearings.
Additionally, it seemed important that even Senator Wheeler, who held
pro-assimilationist views that ``were extreme even for [his] time,''
would not have supported the constrained interpretation of Section 19
of the IRA that the Court reached in Carcieri.\3\ Elmer R. Rusco, A
Fateful Time: The Background and Legislative History of the Indian
Reorganization Act 241 (2000).
---------------------------------------------------------------------------
\3\ Senator Wheeler was, in fact, a strong supporter of the IRA as
adopted. When he presented the bill for a vote before the entire
Senate, he stated: ``This bill . . . seeks to get away from the
bureaucratic control of the Indian Department, and it seeks further to
give the Indians the control of their own affairs and of their own
property; to put it in the hands either of an Indian council or in the
hands of a corporation to be organized by the Indians. I, myself,
thinking that this bill, as now presented, is the greatest step forward
the Department has ever taken with reference to Indians.'' 73 Cong.
Rec. 11,123 (1934). Senator Wheeler specifically noted that the
acquisition of lands was one of the main purposes of the IRA, and that
the Department had the authority to acquire new trust lands for both
Indian tribes and for individual Indians. Id. at 11,123, 11,126 (noting
that ``[t]he second purpose is to provide for the acquisition, through
purchase, of land for Indians now landless who are anxious and fitted
to make a living on such land,'' and, in response to questions from a
fellow Senator, stating that Section 5 applied ``not [just] for Indian
tribes, but for both tribes and individual Indians'').
Scholars have noted that Senator Wheeler's original resistance to
the IRA was due to many non-substantive factors in addition to his pro-
assimilationist views. The first bill was drafted without congressional
input, and it was lengthy (in excess of 50 pages) and poorly written.
Senator Wheeler did not get along with Commissioner Collier. And
finally, Senator Wheeler was initially not convinced that President
Roosevelt supported the bill. When the bill was shortened and revised,
with Senator Wheeler's input, and when President Roosevelt expressed
his strong support for the bill, Wheeler became a strong advocate for
its passage. Rusco, supra at 232-26, 240-41.
---------------------------------------------------------------------------
In adopting its interpretation of the IRA, the Carcieri Court
claimed that the word ``now'' meant ``at the time of enactment.'' But
the word ``now'' could just have easily referred to ``at the time the
statute is applied,'' as it does in numerous other statutes. See, e.g.,
Comment to Uniform Child Custody Jurisdiction Act, Sec. 14(a)(1)
(explaining that the word ``now'' in the phrase ``does not now have
jurisdiction,'' means ``at the time of the petition,'' and not when the
statute was enacted). If Congress wanted to limit the phrase ``now
under Federal jurisdiction'' to the date of enactment of the IRA, it
could have done so easily by referencing a particular date. After all,
the second definition of Indian in Section 19 refers to ``descendants
of such members who were, on June 1, 1934, residing within the present
boundaries of any reservation.''
Typically, when there is ambiguity in a statute, courts defer to
the reasonable interpretation of the executive branch agency charged
with implementing that statute, particularly if that interpretation is
memorialized in regulations promulgated through notice-and-comment
rulemaking. See, e.g., Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984). Yet
in Carcieri, the Court ignored the Department's land-into-trust
regulations, which had been in place for more than 25 years and
extended the benefits of the IRA to all federally recognized tribes. 25
C.F.R. Sec. Sec. 151.2(b), (c)(1) (2009). The Court also ignored the
Indian canons of construction, which state that ``statutes are to be
construed liberally in favor of the Indians.'' Bryan v. Itasca County,
426 U.S. 373, 392 (1976).
Nothing in the legislative history of the IRA clarifies this
ambiguity in a way that would support the Court's decision in Carcieri.
In terms of legislative history, the most probative evidence of
congressional intent can be found in the official House and Senate
Reports. See, S. Rep. No. 73-1080 (1934) (``Senate Report''); H.R. Rep.
No. 73-1804 (1934) (``House Report''); H.R. Rep. No. 73-2049 (1934)
(``Conf. Rep.''). These reports indicate that Section 5, which
authorizes the Department to take land into trust for Indian tribes,
was supposed to be construed broadly. The Senate Report, for example,
notes that the bill was designed ``to conserve and develop Indian lands
and resources,'' because ``the land holdings of the Indians have
steadily dwindled and a considerable number of Indians have become
entirely landless.'' Senate Report at 1. Section 5 was intended ``[t]o
meet the needs of landless Indians and of Indian individuals and tribes
whose land holdings are insufficient for self-support.'' Id. at 2.
Section 7 of the bill also authorized the Secretary of the Interior
``to proclaim new Indian reservations on the lands acquired, pursuant
to section 5 of the bill.'' Id. There is no discussion in the Senate
Report of the meaning of Section 19, which defines the terms ``Indian''
and ``tribe.'' See id. at 3.
The House report contains similar language. It states the purpose
of the IRA: ``broadly, the measure proposes to rehabilitate the
Indian's economic life and to give him a chance to develop the
initiative destroyed by a century of oppression and paternalism.''
House Report at 6. The Act should ``make many of the now pauperized,
landless Indians self-supporting, [because] it authorizes a long-term
program of purchasing land for them.'' Id. Nothing in the House Report
explains the definitions of ``Indian'' or ``tribe,'' and nothing
indicates Congress' intention to limit the provision of the Act to
those who were ``under Federal jurisdiction'' in 1934. See id. at 7.
The IRA received strong support in Congress. In the Senate, it
passed by a voice vote. In the House, it passed by a vote of 258 to 88.
Some votes in favor of the Act came from individuals who maintained a
pro-assimilationist philosophy and there is no indication that they
intended to limit to the benefits of the IRA to only those tribes that
Federal officials arbitrarily determined were ``under Federal
jurisdiction'' in 1934. Even if such a sentiment could be found, the
Supreme Court has previously insisted that courts ``are not obligated
in ambiguous circumstances to strain to implement [an assimilationist]
policy Congress has now rejected, particularly where to do so will
interfere with the present congressional approach to what is, after
all, an ongoing relationship.'' Bryan, 426 U.S. at 388 n.14.
The Supreme Court unfairly limited the application of this historic
statute in Carcieri v. Salazar. This decision was wrong. Creating a
dividing line based on whether a tribe was or was not ``under Federal
jurisdiction'' in 1934, is not supported by any modem policy
justifications. I hope that Congress will rectify this injustice, both
for Mashpee and for other Indian tribes.
*****
ATTACHMENT
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Gallego. Thank you, Ms. Routel. The Chairman now
recognizes Ms. Richards to testify.
STATEMENT OF CLAIRE RICHARDS, EXECUTIVE COUNSEL TO THE
GOVERNOR, STATE OF RHODE ISLAND, PROVIDENCE, RHODE ISLAND
Ms. Richards. Good afternoon, Chairman Gallego, Ranking
Member Cook, and distinguished members of the Subcommittee.
Thank you for giving me the opportunity to speak in opposition
to H.R. 312, the Mashpee Wampanoag Reservation Reaffirmation
Act, and to talk a little bit about the Act's potential effect
on Rhode Island. My name is Claire Richards. I'm Executive
Counsel to Governor Gina Raimondo, the governor of Rhode
Island. I have served as legal counsel for four governors; two
were Republicans, one was an Independent, and Governor Raimondo
is a Democrat. My 22-year tenure has included 10 years of
litigation involving the Indian Reorganization Act resulting in
the Supreme Court's decision in Carcieri v. Salazar. In my
capacity as Governor's Counsel, I regularly deal with complex
legal questions surrounding the allocation of sovereignty
between the state, the United States, and Indian tribes.
Congress enacted the IRA to authorize the Secretary of the
Interior to take land in trust for Indians. By its express
terms, however, the IRA authorizes such fee-to-trust conversion
only for those Indian tribes under Federal jurisdiction as of
1934.
In 2015, the Secretary took land into trust for the Mashpee
to operate a resort casino in Taunton, Massachusetts, even
though the Mashpee were not under Federal jurisdiction as of
1934. The Secretary's decision violated the IRA and was an
effort to sidestep Carcieri. It was quickly struck down by a
Massachusetts Federal court in a case called Littlefield v. the
Department of the Interior. Littlefield held that the
Secretary's decision to take the Taunton land in trust was
wrong based on the plain language of the IRA. Responding to the
Secretary's argument that certain provisions of the IRA were
ambiguous and therefore permitted her to convert the Taunton
land to trust, the Court replied ``with respect, this is not a
close call: to find ambiguity here would be to find it
everywhere.''
The Mashpee Act resurrects and summarily affirms this
erroneous interpretation of the IRA. In so doing, it undermines
the established statutory scheme for acquiring trust lands for
Indians, as well as the Supreme Court's decision in Carcieri.
It nullifies Littlefield and upends the current view of the
Department of the Interior itself. All conclude that the
Secretary is not authorized to take land into trust for the
Mashpee or any other tribe that was not under Federal
jurisdiction in 1934.
The Act, and the faulty rationale upon which it premised,
will open the door to other fee-to-trust conversions in states
like Rhode Island whose tribes are also excluded from the trust
provisions of the IRA. Federally recognized tribes in these
states will argue that they stand in no different position from
the Mashpee and that the Secretary's discredited rationale
should apply to them as well.
Federal trust acquisitions can have serious consequences
for states. They strip states of their jurisdiction over land,
they encourage tax free and tax advantage sales on trust
property, and they give rise to complex jurisdictional
checkerboarding issues. And the acquisition of land in trust is
often a necessary precondition to the establishment of a
Federal Indian casino.
Rhode Island would be particularly hard hit by such
acquisitions, whether within the state or, as here, less than
15 miles from its border. As one example, Rhode Island's
Constitution gives the state exclusive authority to operate
casinos within its borders. Rhode Island operates two casinos
and uses its over $300 million a year in annual gaming revenues
to fund education, infrastructure, and social programs for its
citizens. An Indian casino in Rhode Island's gaming catchment
area poses a serious threat to those revenues. Rhode Island has
experienced similar threats to revenue from the sale of tax-
free tobacco products on Indian trust lands.
Because of their effect on surrounding jurisdictions, trust
acquisitions should strictly conform to the plain language of,
and the limitations set forth in, the IRA. They should follow
an orderly and established vetting process which includes
consideration of the impact on neighboring jurisdictions. They
should not be based on a firmly discredited legal rationale to
which even the current Secretary of the Interior does not
adhere.
Thank you for allowing me this opportunity to raise the
Governor's concerns on this important issue and to urge the
Subcommittee not to pass H.R. 312. I would be happy to answer
any questions.
[The prepared statement of Ms. Richards follows:]
Prepared Statement of Claire Richards, Executive Counsel To Gina M.
Raimondo, Governor of Rhode Island on H.R. 312
Good afternoon Chairman Gallego and members of the Subcommittee.
Thank you for giving me the opportunity to speak in opposition to H.R.
312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (the
Act) and to talk about the Act's potential effect on Rhode Island.
I am Claire Richards, Executive Counsel to Gina Raimondo, Governor
of Rhode Island. I have served as legal counsel to four Rhode Island
governors; two were Republicans, one was an Independent, and Governor
Raimondo is a Democrat. My 22-year tenure has included 10 years of
litigation involving the Indian Reorganization Act of 1934 (the IRA)
resulting in the Supreme Court's decision in Carcieri v. Salazar. In my
capacity as Governor's Counsel, I regularly deal with complex legal
questions surrounding the allocation of sovereignty between the state,
the United States and Indian tribes.
Congress enacted the IRA to authorize the Secretary of the Interior
to take land in trust for Indians. 25 U.S.C. Sec. 5108. By its express
terms, however, the IRA authorizes such fee-to-trust acquisitions only
for those Indian tribes under Federal jurisdiction as of 1934. Carcieri
v. Salazar, 555 U.S. 379, 382 (2009).
In 2015, the Secretary took land into trust for the Mashpee to
operate a resort casino in Taunton, Massachusetts, even though the
Mashpee were not under Federal jurisdiction as of 1934. The Secretary's
decision violated the IRA and was an effort to sidestep Carcieri; it
was quickly struck down by a Massachusetts Federal court in Littlefield
v. U.S. Dep't of the Interior, 199 F.Supp. 3d 391 (D. Mass. 2016),
appeal pending, No. 16-2481 (1st Cir. 2016). Littlefield held that the
Secretary's decision to take the Taunton land in trust was wrong based
on the plain language of the IRA. Responding to the Secretary's
argument that certain provisions of the IRA were ambiguous and
therefore permitted her to convert the Taunton land to trust, the Court
replied: ``[w]ith respect, this is not a close call: to find ambiguity
here would be to find it everywhere.'' Id. at 396.
The Act resurrects and summarily affirms this erroneous
interpretation of the IRA. In so doing, it undermines the established
statutory scheme for acquiring trust lands for Indians, as well as the
Supreme Court's decision in Carcieri. It nullifies Littlefield and
upends the current view of the Department of the Interior itself.\1\
All conclude that the Secretary is not authorized to take land into
trust for the Mashpee or any other tribe that was not under Federal
jurisdiction as of 1934.
---------------------------------------------------------------------------
\1\ In June 2017, the Department shared a draft revised decision
with the Mashpee and the citizens who brought the Littlefield action
denying the Tribe's land-in-trust request.
---------------------------------------------------------------------------
The Act--and the faulty rationale upon which it is premised--will
open the door to other fee-to-trust conversions in states, like Rhode
Island, whose tribes are also excluded from the trust provisions of the
IRA. Federally recognized tribes in these states will argue that they
stand in no different position from the Mashpee and that the
Secretary's discredited rationale should apply to them as well.
Federal trust acquisitions can have serious consequences for
states. They strip states of their jurisdiction over land, they
encourage tax free and tax-advantaged sales on trust property and they
give rise to complex jurisdictional ``checkerboarding'' problems. And,
the acquisition of land in trust is often a necessary precondition to
the establishment of a Federal Indian casino.
Rhode Island would be particularly hard hit by such acquisitions,
whether within the state or, as here, less than 15 miles from its
border. As one example, Rhode Island's Constitution gives the state
exclusive authority to operate casinos within its borders. Rhode Island
operates two casinos and uses its over $300 million in annual gaming
revenues to fund education, infrastructure and social programs for its
citizens. An Indian casino in Rhode Island's gaming catchment area
poses a serious threat to the state's gaming revenue. Rhode Island has
experienced similar threats to revenue from the sale of tax free
tobacco products on Indian trust lands.
Because of their effect on surrounding jurisdictions, trust
acquisitions should strictly conform to the plain language of, and
limitations set forth in, the IRA. They should follow an orderly and
established vetting process which includes consideration of the impact
on neighboring states. They should not be based on a firmly discredited
legal rationale to which even the current Secretary of the Interior
does not adhere.
Thank you again for allowing me this opportunity to raise the
Governor's concerns on this important issue and to urge the
Subcommittee not to pass the H.R. 312. I would be happy to answer any
questions.
______
Mr. Gallego. I thank the expert witnesses for their
powerful testimony, reminding the Members that Committee Rule
3(d) puts a 5-minute limit on questions. The Chairman will now
recognize Members for any questions they wish to ask the
witnesses. I will start by recognizing myself for 5 minutes.
This question is for the Honorable Jessie Little Doe Baird.
From your testimony, you seem to have a lot of local support
for your tribe and your economic development initiative. What
local support do you have and why is there opposition from the
state of Rhode Island, although I think I just plainly heard
the answer, and does your tribe's bill affect the jurisdiction
of Rhode Island in any way?
Ms. Baird. Thank you. I think the reason that we have
opposition from the state of Rhode Island we have just heard,
fully a third of their state revenue is generated from their
casinos, the state casinos, and our legislation has absolutely
no impact on the state of Rhode Island in terms of jurisdiction
taxes or anything else. We do have full support from our local
legislature, the city of Taunton, the town of Mashpee, Chambers
of Commerce, and I think it is pretty clear that the reason the
state of Rhode Island opposes our bill is because it wants to
protect its current monopoly on the gaming industry in southern
New England. It has been successful in using the courts to
crush the Narragansett Tribe and it now is attempting to use
Congress to do the same to Mashpee.
Mr. Gallego. Thank you. Mr. Washburn, in your testimony,
you mentioned the Patchak Patch, an administrative policy that
eliminated the 30-day waiting period for implementation of
land-into-trust decisions. Although trust decisions can be
challenged through administrative or judicial litigation, this
policy allowed the land to stay in trust pending the outcome.
What are the legal ramifications of not having this policy
in place during the land-into-trust process? And do you know if
the Trump administration has been receptive to implementing a
similar policy?
Mr. Washburn. Thank you, Mr. Chairman. We instituted the
Patchak Patch, so called, during the Obama administration
basically so that land would go into trust immediately rather
than waiting for 30 days. The reason the Federal Government
originally waited for 30 days was to give people time to
challenge that and bring litigation if they wanted to do so.
What we learned was that it was really a delay tactic. People
would challenge it and litigation would go on for years and
years and that was just for purposes of delay. Ultimately, the
United States would win that litigation, but meanwhile the land
would not have been in trust for as many years as litigation
went on. So, the Patchak Patch was a way to say, we are going
to take the land into trust immediately and if there is any
litigation, it can happen while the land is already in trust.
My sense is that the Trump administration is revisiting the
approach that the Obama administration used, and they have been
trying to do consultations and have discussions around changing
the land-into-trust rules to make them less favorable for
tribes. Thank you.
Mr. Gallego. Thank you, Mr. Washburn. Ms. Routel, other
than the Mashpee, how many times have you witnessed a tribe
face challenges to their fee-to-trust applications due to
Carcieri?
Ms. Routel. It is really hard to put a number on it because
there are countless challenges that come at the application
stage that never make their way into the courts. When we look
at challenges that have been brought in the Federal courts and
in front of the Interior Board of Indian Appeals, we are
talking about some 50 reported decisions at this point. So,
there has been a large amount of litigation, and a lot of it
has been litigation that, as Dean Washburn mentioned, we would
consider to have been brought just to delay tribes that there
is no doubt that they were under Federal jurisdiction in 1934
because they appear on some of the very first lists that were
created of tribes that allowed them to vote on application of
the IRA and confirm that they either voted on and adopted, or
disapproved IRA constitutions.
Mr. Gallego. Ms. Richards, how many other casino or gaming
enterprises has the state of Rhode Island opposed, either
through litigation or through legislative manner outside of the
state of Rhode Island?
Ms. Richards. To my knowledge, this is the only one, Mr.
Chairman.
Mr. Gallego. So, this is the only gaming operation, or
potential gaming operation, that the state of Rhode Island has
actively involved, even though we know there are other
operations that are either coming on-line or have come on-line?
And is it because this is the only opportunity to have a legal
recourse using the Carcieri problem and that's why you are not
using it for other tribes? Or are other gaming institutions
better funded to be more difficult for the Government of Rhode
Island to fight them?
Ms. Richards. No, the Mashpee Reaffirmation Act is an act
that has a direct economic impact on us, and that is why we are
here today.
Mr. Gallego. Right, but there are other gaming institutions
that also will have a direct economic impact on the state of
Rhode Island. Has your representation of those institutions--
has the state of Rhode Island ever opposed, legally, in any
matter any of those other gaming institutions?
Ms. Richards. You mean private casinos?
Mr. Gallego. Yes.
Ms. Richards. We have not opposed any private casinos to my
knowledge, and the reason for that is that private casinos
operate on a more equal footing to Rhode Island's casinos. It
is much more difficult for Rhode Island's casinos to compete
against a Federal Indian casino because of the effective tax
rate.
Mr. Gallego. I find that a very dubious claim. Thank you.
And now I would like to recognize our Ranking Member,
Representative Cook.
Mr. Cook. Thank you very much. I appreciate the witnesses,
and just to carry on, Ms. Richards, on the competition from
other casinos, if you will, and that is kind of the argument
here. You do have two in Connecticut that are very close to the
Rhode Island border, right? And I notice they weren't mentioned
in the threat to the commercial interests of Rhode Island.
Obviously it is just the Mashpee, is that correct?
Ms. Richards. The two Connecticut casinos, which are the
Foxwoods and the Mohegan, they are not far from the Rhode
Island border. On the other hand, they certainly predate my
time in office. They predate Carcieri. And they may even
predate some of our own gaming operations.
Mr. Cook. I have to be honest with you, I am very
sympathetic to the tribe in Massachusetts, and I could get
myself into serious trouble because I usually drive from
Connecticut to Cape Code in the summer. I am sure I am going to
have a number of speeding tickets going through Rhode Island if
I don't handle this correctly. And second, my daughter and son-
in-law are both graduates of the University of Rhode Island, so
Thanksgiving is going to be a very interesting time this year.
But in the testimony that was given, I understand
commercial interests and everything else, but as somebody who
taught American History, I am very, very sympathetic to tribes
and their own identity, and far too often I think so many
tribes have been on the verge of extinction because of some of
the things that have happened in the past. I'm from California,
I know the wars between casinos and gaming and everything else,
but I still have a tendency to side with the history, the
heritage, and everything else. Gaming may be a transcendent
thing, so right now I am very, very sympathetic to the
testimony that has been given by the Mashpee Indians. I yield
back.
Mr. Gallego. Thank you, Ranking Member Cook. I now
recognize Chairman Grijalva for questions.
Mr. Grijalva. Thank you very much, Mr. Chairman.
In response to the Chairman's question you answered the
direction in which I wanted to ask you as well.
Ms. Richards, let me just follow up on some questions.
After the Carcieri decision in 2009 that involved a tribe in
Rhode Island, ultimately this decision led to the Supreme Court
ruling that land cannot be taken into trust for tribes
recognized after the Indian Reorganization Act of 1934, which
brings us to today, and brings us to Mr. Cole's legislation.
Why do you believe that land is only afforded to tribes
recognized before 1934?
Ms. Richards. To be perfectly honest, Mr. Chairman, I don't
think there's a great reason why there should be two classes of
tribes, those under jurisdiction prior to 1934 and those under
jurisdiction after 1934. For that reason, I have not testified
against Representative Cole's bill, which is H.R. 375. That
would extend the IRA to all tribes regardless of when they were
under jurisdiction.
I think the state of Rhode Island, if that bill were to
pass, would really urge a total revamp of the IRA, and the
revamp would include setting standards for the acquisition of
tribal trust property, for taking into account the impact of
trust property on local jurisdictions, for making a system that
is transparent which has clear and objective standards, gives
local jurisdictions significant role in the process, a
substantial role in the process, gives timely notifications to
jurisdictions----
Mr. Grijalva. Essentially providing to, in this instance, a
state degree of veto power over land being taken into trust,
correct?
Ms. Richards. Some degree of consultation, just as you, Mr.
Chairman, seek full consultation between tribes and the Federal
Government, the state and local jurisdictions would also seek
to be heavily involved. I think one of the things that----
Mr. Grijalva. So, you don't see Mr. Keating's legislation
as complementary to the position that you just said, you don't
think there should be two standards of tribes.
Ms. Richards. I do not see it as complementary, no.
Mr. Grijalva. And correcting what is essentially a
precedent that does establish two different standards for
tribes, particularly the issue we are dealing with of land
being taken into trust?
Ms. Richards. I think Mr. Cole's bill, H.R. 375, would
address the parity issue between the pre-1934 Act tribes and
the post-1934 Act tribes, but I do think a total revamp of the
IRA to be more responsive to states' interests would be called
for.
Mr. Grijalva. I think that that would be significant and I
think an undercutting of sovereignty trust responsibility if we
were to establish a precedent that essentially, whether you
want to call it consultation, but would provide a state or
another local entity, a municipality, a county, essentially
veto power over a process that is devoid of those other
interests.
Ms. Richards. I don't see it as veto power, but I think it
is very important to keep in mind the host jurisdiction's
impacts that arise as a result of a fee-to-trust acquisition.
Mr. Grijalva. Tomato-tomatoe, but I think it is veto power.
Let me yield back, Mr. Chairman, and I appreciate the time.
Mr. Gallego. Thank you Mr. Chairman. And we now recognize
Representative Keating.
Mr. Keating. Thank you Mr. Chairman. Attorney Richards, you
broadened your arguments in your remark to say, basically, that
all states should be concerned about this. And I just want to
ask you, we tailored this bill directly from the legislation in
Gun Lake and the Virginia tribal legislation. So, if this is
such a concern to all states, did you take any formal
opposition as a state to those two pieces of legislation?
Ms. Richards. We did not. I am not familiar with those
pieces of legislation, unfortunately.
Mr. Keating. Well, I will tell you that they are almost
identical to this legislation. And do you happen to know how
the Rhode Island congressional delegation voted on one of those
bills?
Ms. Richards. I don't know.
Mr. Keating. I will inform you. They were in support of
those bills, so the congressional delegation from Rhode Island
supported the very same legislation as this.
Just another question. Your background in law is one of
jurisdictions, and you mentioned state jurisdiction and U.S.
jurisdiction. You can clearly, I think, can't you, know the
boundaries and jurisdictions of a particular state?
Ms. Richards. I do know the geographic boundaries of the
state.
Mr. Keating. Of a state.
Ms. Richards. I certainly am aware of those.
Mr. Keating. Could you say you could define the boundaries
of America? Of the United States?
Ms. Richards. I don't really think I understand your
question.
Mr. Keating. Do you believe that America, the United
States, has a boundary around it?
Ms. Richards. Yes.
Mr. Keating. Thank you. So, I have a question for you. Can
you define what you included in your testimony; can you define
this entity? You said you defined an entity as the ``Rhode
Island's gaming catchment area.''
Ms. Richards. Yes.
Mr. Keating. What is that jurisdiction? What does that
mean?
Ms. Richards. Normally when people discuss gaming or any
kind of casino, they draw a circle around the casino----
Mr. Keating. What's the circle?
Ms. Richards. It is a certain geographic circle.
Mr. Keating. What is it though? You are here.
Ms. Richards. I think it is about a hundred miles.
Mr. Keating. So, that is an official boundary? The question
then--are you aware that Massachusetts already has approved a
casino in that southeastern Massachusetts area, regardless of
this?
Ms. Richards. I am.
Mr. Keating. So, what you are saying is you don't want this
particular piece of legislation that will keep a tribe in
existence versus another one that is already approved by
Massachusetts that you can't do much about, it is going to have
the same effect, if not more, on your gaming. So, how could you
do this to the tribe?
Ms. Richards. Because as I explained earlier to the
Committee, Indian gaming operations do not operate on an equal
footing from private casinos.
Mr. Keating. You are missing my point here. There is still
going to be a casino there.
Ms. Richards. That is right.
Mr. Keating. And you are saying the biggest reason you are
here is Rhode Island is going to lose money with those
Massachusetts plates that come over the border.
Ms. Richards. What I am saying is that there are impacts on
Rhode Island from having fee-to-trust conversions. They are not
limited to casinos. They also include the tax free and tax
advantage sales of any product. Those tax free and tax
advantage sales from trust properties affect Rhode Island very
clearly even though they may not be located within its borders.
Mr. Keating. So, you are in favor of a casino from
Massachusetts on the other side of the border then?
Ms. Richards. Pardon me?
Mr. Keating. You are in favor, if that is your point, then
you are in favor of a casino on the other side of the border,
just not this one. So, Rhode Island's position, the Governor's
position is that you favor a casino in southeastern
Massachusetts next to your border.
Ms. Richards. We are neutral on opposing casinos that
operate under the same competitive footing as Rhode Island's.
Mr. Keating. So, just for the record, it is good that the
Rhode Island people know that you are not opposing a casino on
the other side of your border and the revenues that might be
lost according to your arguments. I yield back.
Mr. Gallego. Thank you Representative Keating. Further
questions for Ms. Richards.
Has there been an economic impact study, not on the gaming
side, but on what you claim is going to be the impact of sales
of tobacco and other non-taxable goods on the state of Rhode
Island?
Ms. Richards. I am not aware of a study that we have
because we haven't confronted this. In 2002, the Narragansett
Indian Tribe started the tax advantage sales of tobacco
products from trust lands within Rhode Island and the state
took immediate action, but we did not have an impact analysis
done.
Mr. Gallego. You do understand why just 1 second ago you
said, the other reason why we are against this is because of
non-taxable goods such as tobacco sales. And then when I asked
you have you done a study what the impact is, you said you
don't know what the impact would be. So, it makes it very
difficult for me to understand your position. If you don't
understand what the impact is, how can you say it is actually
going to affect Rhode Island? You are just guessing.
Ms. Richards. Well, the differential between taxed tobacco
products and untaxed tobacco products is enormous, and I think
most people----
Mr. Gallego. Enormous in what sense? Are we talking a
couple hundred thousand? Million? Two million? Ten million? You
don't know, but yet you are coming here and testifying and
somehow making a decision--not you, but obviously at the behest
of your Government--that that is a reason why to stop the
Mashpee from actually having recognition. What I am saying is
if you are going to come here and say that, at least have a
claim and some money and a study attached it.
Ms. Richards. We have experienced from our own
jurisdiction--we haven't done a study because we don't have tax
free or tax advantage sales going on right now, but we did in
2003 have them, and we determined for ourselves that it would
be a serious impact on our tobacco revenues. I cannot, at this
moment, give you the exact amount of the impact.
Mr. Gallego. But you can feel comfortable enough to use it
as an argument to stop this tribe from being federally
recognized?
Ms. Richards. Yes, I can.
Mr. Gallego. Representative Gosar.
Dr. Gosar. Thank you Mr. Chairman and Republican Leader
Cook for allowing me to participate in this important hearing
today. I am especially grateful to Mr. Cook for his leadership
on the Subcommittee and on these issues.
The so-called RESPECT Act is an extremely radical proposal
that would shut down important operations within the Federal
Government until the lengthy and unrealistic consultation and
coordination requirements prescribed by the bill are met. It is
so broad and far-reaching that even the Obama administration
opposed a nearly identical version of this bill. This bill
would cause catastrophic harm to local communities and increase
things like permitting times, negatively impacting grazing,
responsible energy production, forest thinning and important
infrastructure projects in that process.
We all want tribes in local communities to have a way in
which activities that impact their daily lives, but this bill
isn't the way to go about that. A better model is the provision
in the La Paz County Land Conveyance Act that I worked on with
the Colorado River Indian Tribe to include.
H.R. 375, the so-called Clean Carcieri Fix, is another bill
I opposed in its current form. H.R. 375 contradicts a Supreme
Court ruling and the Indian Reorganization Act of 1934. We have
seen previous Departments of the Interior take off reservation
land into trust against the will of states, compacts and local
communities for the sole purpose of building new casinos.
This was certainly the case in my state with the Tohono
O'odham Nation, who covertly acted against its fellow tribes,
the state of Arizona, and the general public to open an off-
reservation casino in Glendale. Litigation discovery and audio
recordings affirmed this shameful conspiracy implemented by the
Tohono O'odham. I am concerned that H.R. 375, as written, will
encourage the same future abuse in that regard.
Finally, H.R. 312 is contrary to current view of the
Department of the Interior, contradicts a Supreme Court
decision and aims to reverse Federal court decisions on this
matter in order to build a massive 400,000 square-foot off-
reservation gaming complex for the benefit of a Malaysian
gaming company.
Besides benefiting this Malaysian company, H.R. 312 has
close ties and origins associated with corrupt DC lobbyist Jack
Abramoff and Senator Elizabeth Warren. The Mashpee Tribe paid
tens of thousands of dollars to Abramoff, and the chairman of
the tribe at that time was sentenced to 41 months in prison for
crimes he committed in conjunction with efforts to secure
Federal recognition. The Mashpee Tribe was not a federally
recognized tribe until it received an administrative
recognition in 2007.
If H.R. 312 is passed, Congress will declare years of
fighting and victories by local stakeholders as if they never
happened. Congress will also take the view that current Federal
law shouldn't apply to the Mashpee Tribe.
Ms. Richards, you testified that if this massive 400,000
square-foot off-reservation gaming complex is allowed to be
built in Massachusetts, the state of Rhode Island will suffer
significant harm with regards to revenue for education,
infrastructure, and social programs. Can you elaborate a little
more on this harm, and reiterate why the Governor and people of
Rhode Island oppose this bill?
Ms. Richards. Mr. Gosar, we have conducted an impact
analysis which I can provide to you. I am not familiar enough
with the contours of that to talk about it at the moment.
Dr. Gosar. We would appreciate that. Vice Chairman Baird,
how will the tribe ever make money from this casino project in
light of the $450 million debt that the tribe owes in Genting
which would operate the casino? Is this bill actually a
financial bail-out for Genting?
Ms. Baird. It is Vice Chairwoman, Representative.
Dr. Gosar. I am sorry.
Ms. Baird. And I would first like to state that for me, as
a Mashpee Wampanoag woman, mother, grandmother and a leader of
my community, and as a woman whose blood and bones have been in
my territory for 12,000 years, I am sitting here today with one
purpose in mind: to keep the land under my people's feet.
I also want to state that because the Federal Government
has forced this tribe and other tribes into two processes that
are very lengthy and very expensive: (1) the Federal
acknowledgement process; and (2) the land in trust process for
which the Federal Government provides no funding to assist
those tribes, we are forced to enter into agreements and find
funding to help us get through these processes, and they are
very expensive. The Federal acknowledgement process alone took
30 years and cost us millions of dollars, as did the land in
trust process.
Dr. Gosar. I find that, Mr. Chairman, a little obvious that
that service being over $350 million that you will never get
out from underneath that debt. I yield back.
Mr. Gallego. Thank you Representative Gosar. Now I would
like to recognize Chairman Grijalva.
Mr. Grijalva. Thank you very much.
Dean Washburn, if Congress does not act on righting this
wrong Carcieri decision, what do you foresee in the next 10
years of having this type of decision on the books for Indian
Country?
Mr. Washburn. Chairman, it is just going to keep causing
problems, it is going to keep causing litigation. As my
colleague Professor Routel testified, it gets brought up in a
lot of these cases and has to be litigated and you need expert
witnesses to go out, historians, to go out and gather up a
bunch of documents and kind of like Vice Chairwoman Baird was
just talking about, these experts are very expensive and they
end up causing tremendous delay. And it means that some tribes
may never get land in trust, and that is really the problem,
and every tribe deserves to have a homeland.
Mr. Grijalva. Professor, the same question from your
perspective, if we don't do this Clean Fix that is before us.
Ms. Routel. Well, the starkest example is really the tribes
that were recognized through the OFA process that spent 20, 30
years to gain that recognition, that expended enormous
resources, and in all those cases, they had to prove, sometimes
from historic times all the way to the present that they
continued to exist. They had to prove that they continued to
exist socially and politically, that outsiders recognized them,
and they had to amass an enormous quantity of documents. Yet,
after standing in line and going through that whole process,
they are now faced with never having any land into trust.
Meanwhile, other tribes that were in a similar position were
recognized by Congress and they all received language in their
recognition bills that specifically allow them to receive the
benefits of the IRA, and some of them mandatory trust
acquisitions.
What Ms. Richards was saying about tribes, like the Mashpee
being tax free is a myth in Indian Country. Native people pay
taxes and tribes do. The Federal Government taxes Indian gaming
operations. And there are taxes that flow, it's just they won't
flow to Rhode Island because of those borders.
But the Mashpee will create 7,000 new jobs; they will give
$50 million in revenue to the state of Massachusetts. In
addition to that, there is $100 million in revenues that is
projected to go to the city that the casino is sited in.
And this notion of tobacco taxes, the Supreme Court has
repeatedly held that tribes, when they sell tobacco to non-
Natives, they actually have to collect a state tax. So, again,
there will be a tax on those sales, it's just the tax will be
turned over to the state of Massachusetts.
The tribes are not at a competitive advantage here. Mashpee
just wants what every single other tribe in the country has,
which is a permanent homeland.
Mr. Grijalva. And the compact with Arizona, all the 22
tribes and those that do have gaming as part of their
enterprises, paid to the state. That revenue goes into,
unfortunately to a what I think is a black hole, but that is
another story.
Mr. Chairman, with all due respect, I have to leave for
amendments on the Floor. The next panel was to discuss the
RESPECT Act. I apologize for not being here for those
questions. I will be submitting those in writing to you to
forward. And to the other panelists that are going to speak to
that issue, my apologizes. I need to be there. I thought that
this would go faster than it did. I yield back, and thank you
very much.
Mr. Gallego. Thank you Mr. Chairman. If there are no
further questions, we are going to move on to the second panel.
All right, excellent.
Let me again remind the witnesses that under our Committee
Rules, they must limit their oral statements to 5 minutes, but
it does not have to be 5 minutes, but the entire statement will
appear in the hearing record. When you begin, the lights on the
witness table will turn green. After 4 minutes, the yellow
light will come on. Your time will have expired when the red
light comes on and I will ask you to please complete your
statement. I will also allow the entire panel to testify, minus
Mr. Washburn who already gave his testimony, before questioning
of the witnesses.
Our first witness is going to be Ms. Vanessa Ray-Hodge,
Partner at--I apologize if I say this incorrectly--Sonosky,
LLC, and former Senior Counselor to the Solicitor at the
Department of the Interior; and finally Mr. Matthew Fletcher,
Professor of Law and Director of Indigenous Law and Policy
Center at Michigan State University College of Law; as well as
again Mr. Kevin Washburn.
The Chair now recognizes Vanessa Ray-Hodge to testify.
STATEMENT OF VANESSA L. RAY-HODGE, PARTNER, SONOSKY, CHAMBERS,
SACHSE, MIELKE & BROWNELL, LLP, ALBUQUERQUE, NEW MEXICO
Ms. Ray-Hodge. Good afternoon, Chairman Gallego and members
of the Subcommittee. My name is Vanessa Ray-Hodge and I am an
enrolled member of the Pueblo of Acoma and a partner in the law
firm of Sonosky, Chambers. I regularly represent Indian tribes
throughout various tribal consultation processes. I previously
served as the Senior Counselor to the Solicitor at the
Interior, and actively participated in numerous Federal-Tribal
consultations and in the development of the Interior's Tribal
Consultation Policy. And I have to say from my experience at
the Interior, tribal consultation doesn't necessarily slow down
the Federal process if it is done right.
I support and applaud Congressman Grijalva's bill, which
would codify the principles of Executive Order 13175 into law
and establish a legally enforceable consultation obligation for
all Federal agencies. The United States has a long history of
enacting policies or authorizing infrastructure development
projects over the objections of tribes, which has often
resulted in the destruction of tribal communities and culture.
Tribal consultation is implemented differently by each
Executive Department, and the sad reality, especially now, is
that tribal consultation is often treated as just a box to
check, or completely ignored.
But Executive Order 13175 was intended to treat tribes as
sovereign nations and recognize that the United States had
policies in the past that placed tribes on reservations,
oftentimes removing them from their aboriginal homelands where
many tribes continue to have treaty rights and cultural and
sacred sites. The ad hoc manner in which consultation is
implemented by Federal agencies has resulted in frustration by
Indian tribes and widespread discounting of tribal governments
and their concerns. This has created an adversarial process
rather than a cooperative one in which tribes are seen as
valued partners that can improve the decision-making process in
a manner that respects tribal rights.
The RESPECT Act takes a major first step toward changing
the tribal consultation process in a good way. The Act outlines
a structured process that aims to ensure that tribes can
participate fully in consultation, and consultation must occur
early and often. In my experience, I have often found that
there is a lack of Federal decision makers who are directly
involved in consultation. Instead, agency staff often attend
and they are not authorized or able to answer questions or
provide meaningful feedback to Indian tribes. Tribes are left
having a one-sided dialogue and are usually only informed about
how their concerns were addressed after a final decision is
rendered. The RESPECT Act would bring a much-needed change in
this process by requiring a two-way dialogue between Federal
agencies and tribes.
An important component that would also help improve the
consultation process is to require training for Federal
employees who participate in consultation and to agency
decision makers. A core objective of tribes during consultation
is to provide Federal decision makers with context and
information needed to support informed decisions that protect
tribal interests. Tribal concerns are often misunderstood or
overlooked by those without any background in the unique
history and relationship that the United States has with Indian
tribes.
With the right tools, consultation can provide a solid
foundation for Federal decisions, but Federal agencies must
recognize and apply these principles. Where Federal actions
relate to applicants seeking Federal approval for a project,
the consultation process should also require that applicants
meet with, consider, and address tribal concerns. There should
not be an expectation that applicants can ignore tribes and
just work with Federal agencies. And Federal agencies shouldn't
be able to hide behind applicants.
When all parties come together, I have seen positive
working relationships result, even when it requires
modifications of a project. And while there might not always be
agreement, Federal agencies have a trust responsibility to take
a hard look and deal with tribal concerns. In this regard, the
Act should specifically recognize Federal agencies affirmative
obligations to protect tribal treaty resources, sacred sites,
and trust lands.
Indeed, in 2006, nine Federal agencies signed an MOU
recognizing this obligation must be considered when making
Federal decisions impacting tribal interests. The goal of
making tribal consultation judicially reviewable is also a
critical component for accountability. In sum, the draft
RESPECT Act is a welcome piece of legislation that is long
overdue.
I appreciate the opportunity to provide these comments and
would be happy to answer any questions you may have.
[The prepared statement of Ms. Ray-Hodge follows:]
Prepared Statement of Vanessa L. Ray-Hodge, Sonosky, Chambers, Sachse,
Mielke & Brownell, LLP on the Draft of the RESPECT Act
By Invitation of the Subcommittee, Not on Behalf of Any Client
Good Afternoon Chairman Gallego and members of the Subcommittee,
thank you for the opportunity to provide feedback on the draft RESPECT
Act. I am Vanessa L. Ray-Hodge, an enrolled member of the Pueblo of
Acoma and a partner in the law firm of Sonosky, Chambers, Sachse,
Mielke & Brownell (500 Marquette Ave., N.W., Suite 600, Albuquerque, NM
87111. Telephone: 505-247-0147). I regularly represent Indian tribes on
a variety of matters, including working with Indian tribes and Federal
agencies throughout the tribal consultation process for projects that
occur on and off Reservation or trust lands. I previously worked as the
Senior Counselor to the Solicitor at the Department of the Interior and
actively participated in numerous Federal-Tribal consultations on
behalf of the Department.
I support and applaud Congressman Grijalva's bill, which would
codify the principles of Executive Order 13175 into law and establish a
legally enforceable consultation obligation for all Federal agencies.
The United States has a long history of authorizing infrastructure
development projects over the objections of Indian tribes. This
abdication of Federal trust and treaty obligations has had devastating
effects on tribal communities and cultures. Indeed, the most recent
protest (NODAPL) against the Dakota Access Pipeline near the Standing
Rock Sioux Reservation brought to light many of the shortfalls of the
Federal Government's current consultation policy. After the NODAPL
movement, I worked with the National Congress of American Indians on
drafting comprehensive Tribal comments relating to the shortfalls of
the current consultation process and attach those comments here for
your reference.
Under the current Tribal consultation framework, Federal permitting
agencies tend to treat Indian tribes as members of the public, entitled
to only limited information and the ability to submit comments, rather
than incorporating tribes into decision-making processes as is done for
non-Federal governmental entities. But Indian tribes are not members of
the public. Tribes are sovereign governments that retain their inherent
rights to govern their own peoples, lands and natural resources. See
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202-03
(1999) (Indian tribes' inherent sovereignty empowers them to govern
their own citizens and territories); Cohen's Handbook of Federal Indian
Law Sec. 4.01[1] (Nell Jessup Newton ed., 2012) (discussing the
independent origin of Indian tribes' sovereignty). At a minimum, tribes
should be respected as governments and their unique relationship with
the United States acknowledged and appropriately incorporated into
Federal decision making.
The draft RESPECT Act takes a major first step toward changing the
Tribal consultation process in a good way. Currently there are no
uniform standards or processes for Federal agencies to use when
initiating Tribal consultation. As a result, agencies do not always
implement consultation early in the Federal decision-making process or
ensure that Indian tribes are consulted in a meaningful way. For
example, what often happens is Federal agencies will engage with
applicants and make major planning decisions on a project long before
tribes are consulted. These decisions invariably result in routes or
project alternatives that will have the greatest impact on Tribal
lands, treaty rights, and cultural and sacred sites. At that point it
is almost impossible for tribes to have any meaningful impact
throughout the consultation process to protect their rights or
interests. Many of these problems could be resolved if tribes were
consulted early and applicants were required to listen to Tribal
concerns before any major decisions on the direction of a project are
finalized with Federal agencies. The draft RESPECT Act helps address
these inadequacies for the better.
Oftentimes, there is a complete lack of Federal decision makers who
are directly involved in consultation and there is nothing to ensure
that the full range of Tribal rights and interests are comprehensively
presented to and considered by decision makers. In many instances,
agency staff without any decision-making authority are sent to Tribal
consultations. Staff is usually not able to answer any questions or
provide meaningful responses to Tribal concerns--rendering Tribal
consultation just another box to check in the Federal review process.
Nor is there any mechanism to hold applicants accountable for
demonstrating why Tribal concerns cannot be resolved.
The goal of Tribal consultation is not merely to give Indian tribes
a seat at the table and a chance to be heard. Rather, the core
objective is to provide Federal decision makers with context,
information, and perspectives needed to support informed decisions that
actually protect Tribal interests. Tribal Treaty rights, the Federal
trust responsibility to tribes, and the environmental justice doctrine
all must be given meaning and respected in actual Federal decisions
that impact tribes. Consultation can provide the solid foundation for
Federal decisions, but the Federal agencies must be willing to
recognize and apply these principles in their decision making.
In other words, there are at least two components to ensure that
Tribal interests are meaningfully considered in Federal decision
making. First, there must be a comprehensive and properly structured
process that enables tribes to participate fully. Second, there must be
a heightened awareness and recognition among Federal decision makers
about the sources, scope, and significance of Tribal rights, and the
need to incorporate and protect those rights in Federal decisions. The
objective is to seek the free, prior and informed Tribal consent where
fundamental Tribal interests are at stake. Federal decision makers must
come to understand that it is in the national interest to uphold the
promises that the United States made in treaties, and to exercise
discretion consistent with the duties of a trustee to tribes. And this
understanding must guide every decision that impacts Tribal interests.
The draft RESPECT Act does a good job at starting to outline a
uniform process for engaging in Tribal consultation across all Federal
agencies. However, the Act should specifically mention Federal
agencies' obligation to protect Tribal treaty resources, sacred sites
and trust lands. The Act should make clear that Tribal consultation
triggered by a Federal undertaking that implicates Tribal lands and
interests is different than Tribal consultation required under Section
106 of the National Historic Preservation Act. In addition, if a
Federal undertaking requires the development of an Environmental
Assessment or Environmental Impact Statement in accordance with the
National Environmental Policy Act (``NEPA''), the Act should expressly
provide that Indian tribes whose lands or interests will be impacted
must be consulted during the environmental review process. Federal
agencies must also ensure that even where an applicant is performing
the environmental review under NEPA, affected Indian tribes should be
joined as cooperating agencies or given an opportunity to meaningfully
consult with the applicable Federal agencies prior to any finalization
or approval of the environmental review documents. Tribal concerns and
objections must be included in any final NEPA document, and Federal
agencies must be required to explain whether or not Tribal concerns or
objections were resolved.
In addition, the Act should provide that all Federal personnel
whose work involves participating in Tribal consultation are required
to participate in comprehensive training regarding Treaty rights, the
trust responsibility, the United States' historical treatment of Indian
tribes, and the vast differences among Tribal cultures. This kind of
training already takes place in some situations within the Interior
Department. The Bureau of Reclamation, for example, has developed a
training program for its regional offices to learn about the trust
responsibility and Indian tribes in the context of Indian water
settlements. The Reclamation training has been successful in large part
because it is provided by a well-respected Indian law professor and
Tribal leaders who can speak about the significance of a water
settlement from the Tribal perspective. This kind of approach needs to
be implemented more broadly across all agencies that make decisions
impacting Tribal rights and interests. Training must be required for
all agency personnel who are involved in projects requiring Federal
approval where Indian tribes may be affected. Trainings, at a minimum,
must include:
Overview of the trust responsibility and unique
relationship between the United States and Indian tribes.
Overview of the United States' historical policies
impacting Indian tribes, including how those policies
resulted in Indian tribes having significant rights and
interests in off-reservation areas.
Tribal perspectives on the importance of the trust
responsibility.
These are just a few comments on the draft RESPECT Act, which is a
welcome piece of legislation that is long overdue. At bottom, Indian
tribes must be afforded a real opportunity to meaningfully consult with
Federal agencies--and Federal agencies must be held accountable during
the consultation process. Even if there is not ultimate agreement,
Federal agencies have a trust responsibility to consider Tribal
concerns and explain why any concerns were not addressed.
I appreciate the opportunity to provide these comments and I look
forward to working with the Subcommittee and the Committee on
finalizing the draft. This Act will ensure that the United States
fulfills its trust responsibility to consult with Indian tribes when
Federal actions impact Tribal lands or interests. I would be happy to
answer any questions the Committee may have.
______
Mr. Gallego. Thank you Ms. Ray-Hodge. The Chair now
recognizes Mr. Matthew Fletcher for his testimony.
STATEMENT OF MATTHEW FLETCHER, PROFESSOR OF LAW AND DIRECTOR OF
THE INDIGENOUS LAW & POLICY CENTER, MICHIGAN STATE UNIVERSITY
COLLEGE OF LAW, EAST LANSING, MICHIGAN
Mr. Fletcher. Thank you very much, Mr. Chairman, and
Minority Leader. My name is Matthew Fletcher. I am a citizen of
the Grand Traverse Band of Ottawa and Chippewa Indians, which
is located in Michigan, and I am disappointed to see that Mr.
Grijalva had to step out. I was about to engage in a little bit
of hero worship.
My very first trip to Washington, DC, as a lawyer was in
the late 1990s, right around 20 years ago, and we were here to
engage in an act of tribal consultation, so to speak. Back in
those days, the Department of Labor's Wage and Hour Division
had refused to treat my client, an Indian tribe in Arizona, as
a state for purposes of minimum wage law. Our fire department
and our police department, our fire department in particular,
would be on-call for 48 hours at a time and then they would get
2 days off, and then they would get another day on. So, the
Wage and Hour Division was telling us that we owed them 25
hours of overtime every week, even though most of the
firefighters, although they were looking for the windmill, I
had to admit most of the time they spend in the fire station
was lifting weights.
I got a chance to meet Mr. Grijalva that day, or that year,
and talk about this project. That was a bad experience in terms
of tribal consultation, but I have had some good experiences as
well as a lawyer and as an advocate.
Under the Obama administration, in particular, we were
pleased to see, especially when Mr. Washburn was Assistant
Secretary, the government worked hard with Indian tribes, and
they sort of were forced to by the Administrative Procedures
Act and engaging in some regulation and guidance releases in
relation to the Indian Tribal Welfare Act, which is a statute
near and dear to my heart.
And to be frank, while there is a little bit of litigation
going on in that case, the regulations that came out and the
accompanying guidances, probably the best work that has come
out of Indian Country in relationship with the Federal
Government that I have seen in the last 20 years. Outstanding
work. And I think that is because the tribes were on board,
they participated, and the Federal Government took what they
said seriously.
But when it comes to bigger projects where there are other
issues, other interests that are arrayed against tribes, or in
opposition to tribes, I think what you see is the perception
without a statute like the RESPECT Act, with the perception
from Indian County is always going to be that the Federal
Government's practice is to consult when they want Indian
tribes to help back them up with a project they are already
going to go forward with, and then the tribe's perspective is
that the Federal Government will not consult, or will do a poor
job of consulting, when the Federal Government expects
opposition from the tribes.
And I just want to harken back to the history of my own
tribe, which is the Grand Traverse Band, and some of the tribes
in Michigan. Way back in the day, in the 1830s, we came to
Washington, DC to negotiate the Treaty of Washington, and our
tribal leader back in those days was a guy named Aishquagonabe,
and he negotiated along with the other Michigan Odawa and
Ojibwe Tribes, a treaty that would guarantee us a homeland,
that would guarantee us places to go on and off the reservation
for purposes of hunting, gathering, fishing--obviously
fishing--and Article XIII of that treaty says that we were
allowed to enter off-reservation lands until those lands were
required for settlement.
And, unfortunately, the first thing that the United States
did with those ceded territories--they were never really
settled--was to turn most of those to lease those lands over to
timber interests. And most of the Lower Peninsula and all of
the Upper Peninsula of the state of Michigan over the next
several decades were de-forested. Possibly the greatest source
of virgin pine in the Great Lakes is all gone. Some of that is
still at the bottom of Lake Michigan because of timber that
ships that have sunk in Lake Michigan.
But when we talk about catastrophic impacts as a result of
actions taken by the Federal Government, I begin with my own
tribe's history and this de-forestation. That was our
livelihood, those forests, and our access to those livelihoods
until the land was required for settlement were destroyed. We
were not able to really live in a homeland without access to
those trees.
And you can see that throughout Indian Country where there
has been a history of a lack of consultation. You see the
flooding of reservations at Three Affiliated, Fort Berthold,
Seneca Nation and other flooding of reservations. You see dams
and culverts that have destroyed salmon habitat in the Pacific
Northwest.
And I guess I want to conclude with, just to harken back,
to paraphrase to a Supreme Court case that just came out, and
Justice Gorsuch's dicta mentioning that Indian tribes, when
they negotiated treaties, did not just negotiate for the right
to continue to live, but to continue to live in their way.
Miigwetch. Thank you very much.
[The prepared statement Mr. Fletcher follows:]
Prepared Statement of Matthew L.M. Fletcher, Professor of Law and
Director of the Indigenous Law and Policy Center at Michigan State
University College of Law on the RESPECT Act
summary
Chairman Gallego and members of the Committee, it is a pleasure to
testify today on the RESPECT Act, a bill to ensure effective
consultation between the United States and Indian tribes in regards to
Federal activities that affect tribal lands and interests.
Today, I hope to provide an overview of the legal, political, and
moral obligations of the United States to ensure meaningful
consultation between the Federal Government and Indian tribes to ensure
effective consultation between the United States and Indian tribes in
regards to Federal activities that affect tribal lands and interests. I
believe the RESPECT Act is a powerful step toward fulfilling that
obligation. Federal-tribal relations work better as a partnership of
sovereigns instead of an adversarial relationship where outcomes are
governed by which sovereign has the superior bargaining position. The
RESPECT Act is a step on that road to partnership, cooperation, and
respect between sovereigns.
In the current of Federal Indian law and policy, known as the self-
determination era, Congress and the executive branch largely have
embraced the trust relationship. In every significant Indian affairs
statute of the last several decades, Congress has acknowledged the
trust relationship. Unsurprisingly, many Indian tribes thrive under the
self-determination policy, growing by leaps and bounds in their ability
to govern. The old era of guardianship where the Federal Government
made most major decisions for Indian tribes and Indian people is a
relic of the past. Still, Federal agencies too frequently move forward
with controversial projects--notably the Line 5 and Back 40 Mine
projects in the western Great Lakes--without bothering to engage in
tribal consultation at all.
Overall, the draft bill is an excellent achievement. The present
system is dominated by indeterminacy--no one knows exactly what
constitutes consultation; no one knows definitely when to initiate
consultation; no one knows exactly what the outcome of consultation is
supposed to be; and no one knows how to enforce the consultation
mandate, or whether it is enforceable at all. The indeterminacy
contributes to the quick breakdown of communication, and a switch from
cooperation to adversity.
The discussion draft's specific requirements obligating Federal
agencies to helpfully document tribal consultation activities will be
extremely useful. The breadth of the scope of the consultation
requirement in the discussion draft will also be useful. As Congress is
aware, many Federal projects are delayed by litigation after the
breakdown of Federal consultation efforts. A clear process will
contribute greatly to increased efficiency.
In conclusion, the RESPECT Act is a major step forward in Federal-
tribal relations. The Indian nations that entered into treaties with
the United States--and that petitioned for and received Federal
acknowledgment by statute or administrative act--always understood the
duty of protection to be a partnership. Consultation is merely an
acknowledgment of the respect due to both sovereigns, Federal and
tribal. Every step the United States takes toward treating Indian
tribes as partners is a positive step.
Miigwetch.
statement
Chairman Gallego and members of the Committee, it is a pleasure to
testify today on the RESPECT Act, a bill to ensure effective
consultation between the United States and Indian tribes in regards to
Federal activities that affect tribal lands and interests.
I am Professor of Law and Director of the Indigenous Law and Policy
Center at Michigan State University College of Law, and visiting
professor at Michigan and Stanford Law Schools later on in 2019. I am a
citizen of the Grand Traverse Band of Ottawa and Chippewa Indians,
located in the heart of Anishinaabeki, Peshawbestown, Leelanau County,
Michigan. Although I do not speak in my official capacity, I should
note that I am an appellate judge for nine Indian tribes--the Grand
Traverse Band, the Mashpee Wampanoag Tribe, the Match-E-Be-Nash-She-
Wish Band of Pottawatomi Indians, the Pokagon Band of Potawatomi
Indians, the Hoopa Valley Tribe, the Nottawaseppi Huron Band of
Potawatomi Indians, the Santee Sioux Tribe of Nebraska, and the Tulalip
Tribes.
My hornbook, Federal Indian Law (West Academic Publishing), was
published in 2016 and my concise hornbook, Principles of Federal Indian
Law (West Academic Publishing), in 2017. I co-authored the sixth and
seventh editions of Cases and Materials on Federal Indian Law (West
Publishing 2011 and 2017), with David H. Getches, Charles F. Wilkinson,
Robert A. Williams, Jr., and Kristen A. Carpenter. I also authored
American Indian Tribal Law (Aspen 2011), the first casebook for law
students on tribal law; The Return of the Eagle: The Legal History of
the Grand Traverse Band of Ottawa and Chippewa Indians (Michigan State
University Press 2012); and American Indian Education:
Counternarratives in Racism, Struggle, and the Law (Routledge 2008). I
co-edited The Indian Civil Rights Act at Forty with Kristen A.
Carpenter and Angela R. Riley (UCLA American Indian Studies Press
2012), and Facing the Future: The Indian Child Welfare Act at 30 with
Wenona T. Singel and Kathryn E. Fort (Michigan State University Press
2009). My latest book, On Indian-Hating, will be published by Fulcrum
Publishing. My most recent law review articles are forthcoming in the
California Law Review and the Michigan Law Review. I am the primary
editor and author of the leading law blog on American Indian law and
policy, Turtle Talk, http://turtletalk.wordpress.com/. I graduated from
the University of Michigan Law School in 1997 and the University of
Michigan in 1994.
Today, I hope to provide an overview of the legal, political, and
moral obligations of the United States to ensure meaningful
consultation between the Federal Government and Indian tribes to ensure
effective consultation between the United States and Indian tribes in
regards to Federal activities that affect tribal lands and interests. I
believe the RESPECT Act is a powerful step toward fulfilling that
obligation. I also hope to provide a snapshot of the universe of cases
in which tribes bring claims against the Federal Government alleging
failure to meet consultation obligations.
I. The Understanding of the Anishinaabeg Treaty Negotiators
In 1836, the collected Michigan Odawa nations met in Washington DC
to negotiate a treaty with Lewis Cass and Henry Schoolcraft.\1\ The
Odawa ogemaag selected Aishquagonabe to speak for the Odawak treaty
delegation that includes the federally recognized Indian tribes, Grand
Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands
of Odawa Indians, and Little River Band of Ottawa Indians, plus the
Grand River and Burt Lake Odawa bands still seeking Federal
acknowledgment. [The Ojibwe nations of the eastern Upper Peninsula of
what is now the state of Michigan selected their own speaker.]
---------------------------------------------------------------------------
\1\ See generally Matthew L.M. Fletcher, The Eagle Returns: The
Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians
2-33 (2011).
---------------------------------------------------------------------------
The Odawa nations that negotiated and executed the 1836 Treaty of
Washington ceded approximately one-third of the land base of the Lower
Peninsula of what is now the state of Michigan, represented in the land
cession map drawn by Michigan State University professor Dylan Miner
and attached to this document as Appendix 1. The Odawa tribes
negotiated for permanent reservations, a promise the United States
failed to implement, and for usufructary rights to hunt, fish, and
gather on the ceded lands until those lands ``were required for
settlement.'' \2\ As was established in the first decade of this
century during the inland hunting, fishing, and gathering phase of
United States v. Michigan,\3\ much of the ceded territory was never
required for settlement. Much of the ceded territory is north of the
effective growing season and was therefore not valuable for
agricultural land. Instead, the Federal Government sold or leased
almost all the land at pennies on the dollar of the effective market
rate to private non-Indian timber interests. Private interests
completely eradicated the virgin timber of the entire Upper and Lower
Peninsula area.\4\ The economic value of that timber is incalculable.
Importantly, the deforestation of the ceded territory dramatically
undercut the ability of Michigan Anishinaabe to live their lives in
accordance with Mino-Bimaadiziwin.\5\ The forests housed the wildlife
the Anishinaabe depended upon for food. The forests provided the
materials for the summer and winter shelter Anishinaabe people
required. The forests provided the medicines Anishinaabe people
required. In short, the forests were uniquely critical to the
livelihoods of the Anishinaabek. The Michigan virgin forests are gone
and will not return in our lifetimes, in our children's lifetimes, in
our grandchildren's lifetimes.
---------------------------------------------------------------------------
\2\ Treaty of Washington, Article XIII, 7 Stat. 491 (1836).
\3\ Fletcher, The Eagle Returns, supra, at 146-47.
\4\ Robert H. Keller, An Economic History of the Indian Treaties in
the Great Lakes Region, 4:2 Am. Indian J. 2, 10 (Feb. 1978).
\5\ See generally Edward Benton-Benai, The Mishomis Book: The Voice
of the Ojibwe (1979).
---------------------------------------------------------------------------
Imagine a world where the United States consulted with the Michigan
Odawa nations before giving away the vast Michigan forests to private
interests. Indian nations could have advised Federal officials what
those forests meant to the Anishinaabek. Imagine how Indian nations
could have advised Federal officials how to make the forests
economically productive while still maintaining a sustainable forestry.
But no. The forests are gone and they are not coming back. Most of the
value of that timber left the state. All of the citizens of Michigan
lost.
Aishquagonabe and the rest of the Odawa ogemaag negotiated for
permanent reservations and for the right to continue to use and
maintain the forests. Ultimately, the United States did not fulfill the
promise to guarantee permanent reservations, leaving the off-
reservation rights as the only remaining valuable consideration for the
Michigan Odawaak. Like other treaty negotiations, the American treaty
negotiators received massively valuable consideration from the Michigan
Odawa nations.\6\ In exchange for the cession of their aboriginal
title, the Odawa nations received deforestation and the eradication of
their lifeways.
---------------------------------------------------------------------------
\6\ Cf. Washington State Dept. of Licensing v. Cougar Den, Inc.,
2019 WL 1245535, at *11 (S.Ct., Mar. 19, 2019) (Gorsuch, J., concurring
in judgment) (``[T]he millions of acres the Tribe ceded were a prize
the United States desperately wanted.'').
---------------------------------------------------------------------------
The takeaway from this history is that Federal-tribal relations
work better as a partnership of sovereigns instead of an adversarial
relationship where outcomes are governed by which sovereign has the
superior bargaining position. The RESPECT Act is a step on that road to
partnership, cooperation, and respect between sovereigns.
II. The Duty to Consult
Indian tribes and the Federal Government's relationship began as a
sovereign-to-sovereign relationship grounded in treaty relations.\7\
There are hundreds of treaties between the United States and various
Indian tribes. The creation of the treaty relationship between the
United States and a given Indian tribe is a form of recognition of that
tribe as a sovereign entity, sometimes referred to as a domestic
sovereign.\8\ The United States, after all, does not enter into
treaties with state governments, corporations, or churches, only
foreign nations and Indian tribes. Indian tribes that do not have a
formal treaty relationship with the United States, primarily those
tribes located in California and Alaska, are acknowledged to enjoy the
same relationship with the Federal Government so long as they are
federally acknowledged as a tribal sovereign, either through an Act of
Congress or through the Federal acknowledgment process.\9\
---------------------------------------------------------------------------
\7\ Matthew L.M. Fletcher, Federal Indian Law Sec. 5.3, at 212
(2016).
\8\ Fletcher, Federal Indian Law, supra, Sec. 5.3, at 212-15.
\9\ Fletcher, Federal Indian Law, supra, Sec. 5.1, at 170-75.
---------------------------------------------------------------------------
The treaty relationship imposed a ``duty of protection'' on the
United States for the benefit of recognized Indian tribes.\10\
Colloquially, the duty of protection means that the United States as a
``superior'' sovereign agrees to protect domestic sovereigns, i.e.,
Indian tribes. The Supreme Court recognized the duty of protection in
the Marshall Trilogy of cases.\11\ Unfortunately for Indian tribes, the
Court analogized the duty of protection to a guardianship.\12\ One
positive side-effect of that era was the Supreme Court's recognition of
the duty of protection as an independent source of congressional
authority to legislate in Indian affairs.\13\ In the modern era, the
duty of protection is more accurately described as the trust
relationship.\14\
---------------------------------------------------------------------------
\10\ Fletcher, Federal Indian Law, supra, Sec. 5.2, at 175.
\11\ Johnson v. McIntosh, 21 U.S. 543 (1823); Cherokee Nation v.
Georgia, 30 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1832).
\12\ Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831) (Marshall,
C.J., lead opinion).
\13\ United States v. Kagama, 118 U.S. 375, 384 (1886).
\14\ Fletcher, Federal Indian Law, supra, Sec. 5.2, at 181-94.
---------------------------------------------------------------------------
In the current of Federal Indian law and policy, known as the self-
determination era, Congress and the executive branch largely have
embraced the trust relationship. In every significant Indian affairs
statute of the last several decades, Congress has acknowledged the
trust relationship.\15\ Unsurprisingly, many Indian tribes thrive under
the self-determination policy, growing by leaps and bounds in their
ability to govern. The old era of guardianship where the Federal
Government made most major decisions for Indian tribes and Indian
people is a relic of the past.
---------------------------------------------------------------------------
\15\ For a survey of statutes, see Fletcher, Federal Indian Law,
Sec. 5.2 at 188-94.
---------------------------------------------------------------------------
Or it should be.
As this body well knows, the United States often must decide
between many competing interests. Tribal interests in governance,
lands, sacred sites, historical sites, economic markets, and
jurisdiction often conflict with private, non-tribal interests, state
interests, Federal interests, and even the interests of other tribes.
When the United States must may difficult choices between these
completing interests, it is all too easy for government officials to
invoke the old guardian-ward model of Federal decision making involving
tribal interests. To be fair to Federal officials, the Supreme Court
has effectively given free reign to Federal agencies to ignore tribal
interests and sweep away the trust relationship.\16\
---------------------------------------------------------------------------
\16\ Fletcher, Federal Indian Law, Sec. 5.2, at 209-12.
---------------------------------------------------------------------------
In my own experience as in-house counsel for Indian tribes from
1998 to 2004, I saw both sides of meaningful tribal consultation. On
one hand, I attempted to negotiate with the Department of Labor on the
question of whether the Fair Labor Standards Act's minimum wage
requirements would apply to tribally run public safety departments,
such as police and fire. At that time (the late 1990s), the
Department's view was that tribal governments were not governments
entitled to an exemption under the law, an agency interpretation made
without contacting affected tribes at all that could have cost
individual tribes hundreds of thousands or even millions a year.
Conversely, I worked with the Environmental Protection Agency on behalf
of two other tribal clients (in the early 2000s) on the implementation
of the Clean Water and Clean Air Act's authorizations to treat Indian
tribes as states for purposes of enforcement. The former situation cost
my tribal client thousands of dollars in attorney fees before the
government agreed to change its policy decision.
Great Lakes tribes now are aligning to protect treaty rights in the
western Great Lakes that are threatened with activities, namely,
Enbridge Line 5 and the Back 40 Mine. Bryan Newland, the Chairman of
the Bay Mills Indian Community, described how the EPA gave tribes 10
days to comment to changes on a settlement agreement favoring the Line
5 owners, but were not given a copy of the proposed changes at all.
Bryan Newland, Will the EPA allow the Line 5 Pipeline to remain in the
Straits of Mackinac? Turtle Talk blog, May 31, 2018, https://
turtletalk.blog/2018/05/31/will-the-epa-allow-the-line-5-pipeline-to-
remain-in-the-straits-of-mackinac/.
In the context of the Back 40 Mine, a Federal judge relieved the
EPA of its duty to consult under the National Historic Preservation Act
because the state of Michigan assumed jurisdiction over the mine
activities.\17\ In both instances, Federal consultation with Indian
tribes was either nonexistent or minimal. In both the Line 5 and Back
40 situations, public opinion strongly opposes the projects. The
RESPECT Act is needed to change the government's understanding of the
partnership between Indian tribes and the United States when treaty
rights are at stake.
---------------------------------------------------------------------------
\17\ Menominee Indian Tribe of Wisconsin v. EPA, 2018 WL 6681397
(E.D. Wis., Dec. 19, 2018).
---------------------------------------------------------------------------
The Federal Government's duty to consult is a critical element to
the United States' ongoing duty of protection, the basis for the
general trust relationship.\18\ The duty of consultation is also a key
element to the duty of free, prior, and informed consent codified in
the United Nations Declaration on the Rights of Indigenous Peoples.\19\
---------------------------------------------------------------------------
\18\ Colette Routel & Jeffrey Holth, Toward Genuine Consultation in
the 21st Century, 46 U. Mich. J. L. Reform 417, 420-35 (2013).
\19\ See generally Study of the Expert Mechanism on the Rights of
Indigenous Peoples, Free, prior and informed consent: a human rights-
based approach, A/HRC/39/62, at 5-8 (Aug. 10, 2018); S. James Anaya &
Sergio Puig, Mitigating State Sovereignty: The Duty to Consult with
Indigenous Peoples, 67 U. Toronto L.J. 435 (2017).
---------------------------------------------------------------------------
III. Comments on the RESPECT Act Discussion Draft
Overall, the draft bill is an excellent achievement. The present
system is dominated by indeterminacy--no one knows exactly what
constitutes consultation; no one knows definitely when to initiate
consultation; no one knows exactly what the outcome of consultation is
supposed to be; and no one knows how to enforce the consultation
mandate, or whether it is enforceable at all. The indeterminacy
contributes to the quick breakdown of communication, and a switch from
cooperation to adversity.
The discussion draft's specific requirements obligating Federal
agencies to helpfully document tribal consultation activities will be
extremely useful. The breadth of the scope of the consultation
requirement in the discussion draft will also be useful. As Congress is
aware, many Federal projects are delayed by litigation after the
breakdown of Federal consultation efforts. A clear process will
contribute greatly to increased efficiency.\20\
---------------------------------------------------------------------------
\20\ Dean B. Suagee, Consulting with Tribes for Off-Reservation
Projects, 25:1 Nat. Resources & Env't, 54, 55 (Summer 2010).
---------------------------------------------------------------------------
Treaty Rights
The discussion draft appears to leave out reference to treaty
rights. I recommend included explicit reference to treaty rights to
ensure that treaty rights affected by Federal activities are included.
Section 4(1) defines ``activities'' broadly, and properly so. Section
4(A) in particular is broad enough to include most, if not all, tribal
interests arising from treaty rights. However, recent treaty rights
litigation such as the culverts case in the Pacific Northwest, the
pipeline cases in the northern Great Plains and in the Great Lakes
area, and other treaty rights matters involve the critical treaty right
to a homeland, originally recognized in the Supreme Court decision
United States v. Winans.\21\ Federal approvals of projects far from
reservation lands that have the potential to destroy off-reservation
resources protected by treaty rights such as clean water and fish
habitat should require tribal consultation. Explicit reference to
treaty rights would be helpful to avoid conflict over the scope of the
duty of consultation.
---------------------------------------------------------------------------
\21\ 198 U.S. 371, 385 (1905).
---------------------------------------------------------------------------
State Government Activities
Many tribes are frustrated with state governments that are
implementing Federal programs affecting tribal interests. In some
instances, the United States has delegated Federal powers to state
government to effectuate a particular purpose, such as implementing the
Clean Water Act. Absent the delegation to the state, the United States
would remain obligated to engage in tribal consultation. The discussion
draft could be clarified to ensure that states implementing or
administering Federal programs respect the duty of tribal consultation.
Section 105(b)--Payment for Tribal Documentation Work
This section alone would constitute a great advance in Federal-
tribal relations. Few tribes would choose to divert scarce tribal
resources to a project in response to the requests of the Federal
Government to explain the tribe's interest and how that interest might
be affected by a proposed Federal project. As the cases listed in
Appendix II indicate, all too often Federal consultation efforts
devolve into an adversarial situation. Federal money available to
handle those requests for information is more likely to make a tribe
respond to consultation inquiries.
I might suggest expanding this section to include more activities.
Quick research into tribal laws available at the National Indian Law
Library's website showed that there are relatively few tribal
consultation statutes or formal offices for responding to consultation
requests.\22\ It would be very helpful if there were funding available
for tribes to develop their own tribal consultation laws and
consultation offices. As the record shows, many tribes cannot
efficiently respond to Federal consultation requests, and sometimes
Federal inquiries go nowhere because there is no formalized tribal
process. Federal self-determination appropriations could be increased
to meet that need.
---------------------------------------------------------------------------
\22\ The Rincon Band of Luiseno Mission Indians' tribal
consultation ordinance (Rincon Tribal Code Sec. 2.800 et seq.) appears
to be a very good model, and is available here: https://narf.org/nill/
codes/rincon_luiseno/index.html.
---------------------------------------------------------------------------
Section 401--Judicial Review
Tribal consultation only works if the government notifies and
begins consulting with affected Indian tribes prior to the earliest
stages of a project, a notion that undergirds Section 101 of the
discussion draft. The survey of cases contained in Appendix II includes
a few cases where an agency waited until a project was well underway,
or where an agency went ahead with a project before receiving a
response from a tribe, or where the agency made no effort whatsoever to
engage in consultation. There are also cases where a tribe sued an
agency successfully under another statute, such as the National
Environmental Policy Act or the National Historic Preservation Act,
while the tribe's claims under the tribal consultation policy failed.
In a situation where the agency, for whatever reason, does not consult
with an Indian tribe but moves forward with a project anyway, judicial
review is a critical tool for tribes. Section 401 is a great first
step.
Survey of Federal Court Litigation over Tribal Consultation
The table that appears as Appendix II is a non-comprehensive list
of Federal court cases brought by Indian tribes against Federal
agencies or Federal officials alleging that the United States failed to
adequately consult with those tribes. A significant number of these
cases concluded with injunctions against Federal projects going
forward, either because of the failure to adequately consult with
tribes or for some other violation of Federal law raised by the tribal
plaintiffs, such as the failure to comply with NEPA. It is possible,
perhaps even likely, that tribal consultation could have addressed the
issues raised by the tribes.
In conclusion, the RESPECT Act is a major step forward in Federal-
tribal relations. The Indian nations that entered into treaties with
the United States--and that petitioned for and received Federal
acknowledgment by statute or administrative act--always understood the
duty of protection to be a partnership. Consultation is merely an
acknowledgment of the respect due to both sovereigns, Federal and
tribal. Every step the United States takes toward treating Indian
tribes as partners is a positive step.
Miigwetch.
*****
ATTACHMENTS
Appendix I
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Appendix II
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Gallego. I want to thank the expert witnesses for their
testimony. We will now move on to questions. I will start by
recognizing myself for 5 minutes.
Ms. Vanessa Ray-Hodge, can you elaborate on how the RESPECT
Act should be adjusted to protect all tribal treaty resources,
sacred sites and trust lands? And why is this clarification
important?
Ms. Ray-Hodge. I think it is important to have express
mention in the Act because often agencies don't give serious
consideration to their dual legal obligations, those
obligations under their Federal statutes, but also to Indian
tribes under treaties and Federal case law. So, I think
oftentimes what happens is because it is not in the top of the
minds of Federal agencies when they are resolving issues,
tribal rights are often subjugated, or left out, of the
balancing of what is the right decision to make, or if
modifications need to be made in a Federal policy or a project
to protect those rights. Because at the end of the day, it is
only Congress that has the authority to diminish tribal treaty
rights or rights that have been legally recognized by the
Federal courts for tribes, and so agencies have to take that
consideration into play, or else they could start trying to
diminish rights that would be unlawful.
Mr. Gallego. Thank you very much, Ms. Ray-Hodge. Mr.
Washburn, this version of the RESPECT Act was expanded so it
applies to independent Federal regulatory agencies. This was
due to conversations with tribes that independent agencies were
ignoring their duty to consult. What is your experience and
your past dealings with some of these independent agencies when
it comes to these matters? And should they be included in the
RESPECT Act?
Mr. Washburn. Thank you, Chairman. I would say absolutely,
and that is something that only Congress can do, because
President Clinton did an Executive Order on tribal consultation
and Obama did a Presidential Memorandum to further that. But
the executive branch can't reach independent Federal regulatory
agencies like you all, so we need Congress to act in the
RESPECT Act for that purpose. And those independent agencies
have a very checkered history of working with tribes. Some of
them do OK sometimes, but they don't have that norm firmly
established, and if you passed a law, they would have to follow
that law. I think we would get better results. Indian tribes
work a lot better when the Federal agencies communicate with
them well, and Indian tribes and the Federal Government can
work well together. We have seen that. But it takes careful
consultation and good communication, and that is what the
RESPECT Act does. Thank you.
Mr. Gallego. Thank you, Mr. Washburn. Mr. Fletcher, thank
you for your in-depth written testimony, especially your
analysis of how drastically different things might be today for
Indian Country and America had tribal consultation been applied
from the beginning. Where do you feel the duty for tribal
consultation stems from?
Mr. Fletcher. Well, I think it is actually a constitutional
duty, and it is certainly rooted in the treaties. You may
recall that there are as many as 400 treaties between Indian
tribes and the United States, and those treaties really are the
creation of a relationship between governments that is a
partnership.
As Rob Williams wrote in his book Linking Arms Together on
the history of the Haudenosaunee Treaties, some of the tribes
treated those as familial relationships. And we know the
Supreme Court in the Marshall Trilogy, which is the first
series of important cases on Indian law from the 1820s and
1830s referred to this relationship where the United States had
undertaken a duty of protection to Indian tribes. Most of those
treaties reference Indian tribes coming under the protection of
the United States. To this day, that duty of protection really
is usually described as the general trust relationship. And if
we treat these management of resources, management of
government and jurisdictions as a partnership, then every
single time the United States does take an action or propose an
action that affects tribes, there should be some consultation
with that tribal partner.
Mr. Gallego. Mr. Fletcher, to follow up, the Constitution
is inherently a government-to-government function, but there
are times when the Federal Government delegates their powers to
a state government for a particular purpose, such as
implementing a Clean Water Act, then the obligation to consult
gets murky. What should the requirement to consult be in these
cases?
Mr. Fletcher. Well, I think if nothing else, Congress could
certainly require the states when they do agree to implement
Federal programs through a delegation from Congress, that
states need to be reminded that they are stepping in the shoes
of the Federal Government and they have entered into
obligations under this trust responsibility.
I look at some of the programs or some of the activities
undergoing in the Great Lakes right now, like the Back 40 Mine,
which is depending on Michigan approvals. We have also had the
Line 5 in the Straits of Mackinac, which is a huge pipeline.
That literally could be an existential threat to the Great
Lakes. And much of that is dependent on state action.
Mr. Gallego. Thank you, Mr. Fletcher. I now recognize the
Ranking Member, Representative Cook.
Mr. Cook. Thank you, Mr. Chairman. Listening to the
testimony and everything else, I am optimistic about this, but
maybe it is my cynicism because of my old age and insults from
Don Young--no. This is something that is very, very difficult.
I worked for the Federal Government and the Marine Corps 26
years and it seemed as though every year there was a new
program that we were going to change the Marine Corps, this and
that. And one of the hardest things is to get it right in any
of these programs. And it is going to be tough because I think
we have to change the behavior of the Federal Government, and
particularly their attitude with Native Americans, Indigenous
People, because--I am not a member of a tribe, but I would have
a chip on my shoulder.
I mean, if you look at all the history over the years, I
would be very, very careful of anybody from Washington. Don't
trust them. But if you can have a level playing field, and I
think you have to establish if this isn't enacted, then I think
we have to go even further, so that you have the ground rules,
what you want to accomplish, so it is not a Washington tells
the tribes what is going on, or I think there is going to be
resentment of failure.
And I wanted to get Professor Washburn's, as a member of
the previous administration, am I being too cynical? Because I
think it is a great idea, good intentions, everything like
that, but when you put it in action, it is going to be very,
very difficult. Do you have any words of wisdom on where we can
go a little further on this?
Mr. Washburn. I think tribes and the Federal Government
work better, they have improved over time and they can work
well together now, so I think maybe you are a little cynical. I
think that we can be optimistic. Tribes have become so much
more sophisticated and so much more capable of self-government
and exercising sovereignty so much better and so much better
resourced, and they have become almost equal partners to the
Federal Government. There are still some paternalistic aspects
to it, but tribes do a great job and I think that largely the
improvement is due to tribes, not due to the Federal
Government.
Mr. Cook. Oh, I agree with you 100 percent. Maybe you trust
the Federal Government more than I do, but I guess I shouldn't
say that. I know we are, but I don't trust myself and I think
when--wait a minute, I got two--thanks, Don.
All I am saying is--and I taught American History, a
professor and all that, maybe that is the problem, I taught too
much American History and a lot of it was terrible, and I am
not going to go through everything that has happened to so many
tribes, so all I am doing is, I will have an open mind on this
and I appreciate what the Chairman is doing, and just starting
off with the name of the Act, the RESPECT Act, and this is
something that doesn't happen for years because if there was
that respect then I think we could expect better conditions and
everything else.
I am not going to go on and on, and I think we can do a lot
with this, but the one thing I want is not driven so much by
us, but you have that input from the tribes, a lot of different
areas and this and that, and that is going to be tough to find
a common denominator. But let's do it. I yield back.
Mr. Gallego. Thank you, Ranking Member Cook. I now
recognize Delegate San Nicolas for questions.
Mr. San Nicolas. Thank you, Mr. Chair. I appreciate
everybody being here today to discuss this legislation. I am
the Delegate from Guam, so I am the Representative of a U.S.
Territory and my heritage is Chamorro, Indigenous People of
Guam. We have a lot of close ties to our land as well, and a
lot of the same challenges that our Indigenous brothers and
sisters have in the tribes.
One of our most unique experiences so far has been dealing
with a military realignment into Guam from Okinawa, moving
thousands of Marines into the island. And one of the biggest
challenges has been trying to walk that middle ground with the
Federal Government in terms of the environmental impact on the
territory. One of the real advantages that we have had as a
result of the process, the way the military needs to go about
doing their process, is they were required to complete an
environmental impact study before they can even move forward.
One of the things that I appreciate about this legislation
is it creates a mandate for agencies to consult with the
tribes, but I think that we need to maybe look further into
creating a basis for consultation. For example, I think the
tribes should probably be able to request, in advance, prior to
even beginning consultation, that an environmental impact study
be done with respect to whatever activity the Federal
Government is looking to undertake.
And one of the reasons why I would probably recommend that
is because if you require an environmental impact study upfront
before the consultations, then you will have a basis for being
able to go in and actually consult. Otherwise you might be
sitting down at a table and you are only discussing what they
share with you, you might not have all the facts in front of
you. And if there is no EIS, no environmental impact study,
then you might not know necessarily what to consult about.
And one of the most powerful things about the EIS that has
been effective so far, is whenever there were any violations of
it, we could take the military to court and get the project
stopped or get injunctions on whatever activities are taking,
because their EIS, which was mandated to be presented before
they were able to move forward, their EIS did not include a
certain component.
So, this might actually put more empowerment into the
tribes if before there is even consultation, an official
Federal environmental impact study needs to be presented with
respect to whatever activity, if the tribe so requests one to
be provided in advance of consultation. Because I think a lot
of the concerns at the tribal level will be similar to the
concerns of the Chamorro people with respect to environment,
with respect to how you are impacting our way of life or how
you are impacting our quality of life. And all of that had to
be put into the environmental impact study that the military
had to put together before they began moving forward with the
military realignment.
How does the panel feel about perhaps including some kind
of component like that so that when you walk into these
consultations that the mandate does require you actually know
what you are going to be consulting rather than sitting there
and wondering if they are sharing all of the information or not
or if you are walking away from the table being fully informed
and also having fully participated based on all the facts? If I
could get feedback from the panel, please.
Mr. Washburn. Delegate, there is a lot of sense in what you
say because tribes do need to have a lot of information to be
able to consult effectively. I would probably stop short of
requiring an environmental analysis or EIS before consultation
can even start. I would come at it a little differently just to
say the Federal Government should consult early and often and
they should continue the consultation as more information
becomes available, because I wouldn't want to put up an
artificial barrier to keep the Federal Government from
consulting with a tribe about something that it is going to be
doing.
I used to joke that tribes would get mad at me when I was
in the government if I came up with an idea in the shower and I
didn't consult before I toweled off. The tribes want to be
engaged that much, so if the proposal that you suggest, the
only worry I have about it is that it would keep the Federal
Government from going ahead and consulting while they are
waiting for the EIS to be completed. Thank you.
Ms. Ray-Hodge. Thank you, Congressman. I actually sort of
agree with Mr. Washburn because I do think that tribes want to
be consulted as early as possible when they know something is
happening. I do think if it is something like an agency policy,
you wouldn't necessarily do an EIS, but there are lots of
projects that happen on Federal lands where an EIS is required,
and what tribes are asking for in the Lower 48 and in Alaska is
to be cooperating agencies from the start of that EIS document
being started to the end of it so that they have the
opportunity for true consultation to get their concerns in.
Mr. Gallego. Thank you, Delegate San Nicolas. Are there any
further questions from the panel? Great.
I thank the witnesses for their valuable testimony, and the
Members for their questions and time. Members of the
Subcommittee may have some additional questions for the
witnesses and we will ask you to respond to those in writing.
The hearing record will be held open for 10 days for these
responses.
If there is no further business before the Subcommittee,
the Chairman again thanks the members of the Subcommittee and
our witnesses. The Subcommittee stands adjourned.
[Whereupon, at 4:17 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
LETTERS OF SUPPORT FOR THE RECORD
MASHPEE CHAMBER OF COMMERCE
March 25, 2019
Hon. Raul Grijalva,
Hon. Rob Bishop,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: The Mashpee Chamber of Commerce Continues support of the passage of
the Mashpee Wampanoag Tribe Reservation Reaffirmation Act
Dear Chairman Grijalva, Ranking Member Bishop, Chairman Hoeven, and
Vice Chairman Udall:
We at the Mashpee Chamber of Commerce have read recent news reports
concerning the movement of H.R. 312 and the effort to fast track this
bill through the House. We applaud Congress for taking such affirmative
steps to pass the Mashpee Wampanoag Reservation Reaffirmation Act and
protect the Tribe's reservation lands. Enclosed please find the support
letter we submitted to Congress last year in connection with H.R. 5244
(now, H.R. 312), that voices our strong support for this effort.
We urge you to continue to move this bill and vote in favor of H.R.
312.
Sincerely,
Patrice Pimental,
President, Board of Directors.
Office of the Town of Mashpee
Mashpee, Massachusetts
April 11, 2019
Hon. Ruben Gallego, Chairman,
Hon. Paul Cook, Ranking Member,
House Committee on Natural Resources,
Subcommittee on Indigenous Peoples of the United States,
1324 Longworth House Office Building,
Washington, DC 20515.
Re: Subcommittee Hearing on H.R. 312, the Mashpee Wampanoag Reservation
Reaffirmation Act, held on April 3, 2019
Dear Chairman Gallego, Ranking Member Cook, and Members of the
Subcommittee:
On behalf of the Town of Mashpee, Massachusetts, I write to thank
you for holding the hearing last week on H.R. 312, the ``Mashpee
Wampanoag Tribe Reservation Reaffirmation Act,'' and respectfully
submit these comments in support of this vitally important bill. The
Town has been advocating for Congress to enact this measure since the
predecessor version of the bill was first introduced in the 115th
Congress as H.R. 5244, and we fully intend to continue doing so this
Congress as well.
The Town of Mashpee and the Mashpee Wampanoag Tribe are old
neighbors that have enjoyed an ongoing, positive, and productive
working relationship over the course of many years--a relationship that
both the Tribe and the Town value very much. The success of our
longstanding relationship is evidenced in part by the 2008
Intergovernmental Agreement between the Tribe and the Town, which is
referenced in the text of H.R. 312. The important jurisdictional and
other balances that the Tribe and the town negotiated in 2008 are
expressly recognized and preserved by the bill.
Aside from the Intergovernmental Agreement, as we stated in our
comments to the Subcommittee on Indian, Insular, and Alaska Native
Affairs last Congress, we also wish to emphasize that this legislation
will help ensure that the Tribe's economic development plans for the
part of its reservation that lies within the nearby community of
Taunton will be preserved and serve to stimulate job creation in an
area that is best suited for it. For this reason as well, the Town
strongly supports this legislation.
Above all, the Town of Mashpee believes enactment of H.R. 312 is
simply the right thing to do. This Act ensures that the Tribe has a
federally-protected homeland in its historic territory and that it
enjoys the same rights under Federal Indian law as other federally-
recognized Indian tribes.
The Town appreciates the Committee's consideration of our views and
again urge you to vote in favor of the bill as soon as possible.
Sincerely,
Rodney C. Collins,
Town Manager.
Town of Mashpee,
Office of Selectmen,
Mashpee, Massachusetts
May 22, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: The Town of Mashpee Urges Passage of the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (S. 2628 and H.R. 5244)
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of the Town of Mashpee, Massachusetts, I write to express
our Town's unequivocal support for swift passage of the Mashpee
Wampanoag Reservation Reaffirmation Act, and toward that end we ask
that you schedule hearings in your respective Committees of
jurisdiction as quickly as possible. The establishment of the Mashpee
Wampanoag reservation in 2015 was very long overdue, and we feel
strongly that this legislation is needed to protect that reservation.
The Town and the Tribe are old neighbors and have long had a
positive working relationship with one another, and that relationship
has in some ways been memorialized in various agreements and memoranda
of understanding over the years.
One of the reasons the Town supports the Mashpee Reservation
Reaffirmation Act is that we believe it will also help to protect our
relationship. Indeed, the Town and the Tribe have worked cooperatively
together to craft a minor proposed amendment to the legislation which
would further strengthen our agreement with each other, and a copy of
that proposed amendment is attached. We join with the Tribe in asking
that the Committees adopt this amendment during the legislative
process.
The Town of Mashpee thanks you for the good work you do, and for
your interest in helping both the Mashpee Wampanoag Tribe and the Town
of Mashpee move productively into the future. If you have any
questions, please do not hesitate to contact me directly, or have your
staff contact the Town's attorney, Patrick Costello, at telephone
number (XXX) XXX-XXXX with any questions.
Sincerely,
Carol A. Sherman,
Chairman.
*****
ATTACHMENT
(S. 2628; H.R. 5244) Mashpee Wampanoag Tribe Reservation Reaffirmation
Act, as amended
To reaffirm the Mashpee Wampanoag Tribe reservation, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Mashpee Wampanoag Tribe Reservation
Reaffirmation Act.''
SEC. 2. REAFFIRMATION OF INDIAN TRUST LAND.
(a) In General.--The taking of land into trust by the United States
for the benefit of the Mashpee Wampanoag Tribe of Massachusetts as
described in the final Notice of Reservation Proclamation published at
81 Federal Register 948 (January 8, 2016) is reaffirmed as trust land,
and the actions of the Secretary of the Interior in taking that land
into trust are ratified and confirmed.
(b) Application.--Notwithstanding any other provision of law, an
action (including an action pending in a Federal court as of the date
of enactment of this Act) relating to the land described in subsection
(a) shall not be filed or maintained in a Federal court and shall be
promptly dismissed.
(c) Applicability of Laws.--All laws (including regulations) of the
United States of general applicability to Indians or nations, Indian
tribes, or bands of Indians (including the Act of June 18, 1934 (25
U.S.C. 5101 et seq.)), shall be applicable to the Mashpee Wampanoag
Tribe of Massachusetts and tribal members, provided, however, that to
the extent such laws and regulations are inconsistent with the terms of
the Intergovernmental Agreement, dated April 22, 2008, by and between
the Mashpee Wampanoag Tribe and the Town of Mashpee, Massachusetts, the
terms of said Intergovernmental Agreement shall control.
______
City of Taunton,
Office of the Mayor,
Taunton, MA
June 8, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. Doug LaMalfa,
Hon. Ruben Gallego,
House Subcommittee on Indian and Alaska Native Affairs,
Washington, DC 20515.
Re: The City of Taunton Urges Passage of H.R. 5244, The Mashpee
Wampanoag Reservation Reaffirmation Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa,
and Ranking Member Gallego:
In my capacity as Mayor of the City of Taunton, I write to urge
Congress to act quickly to protect the Mashpee Wampanoag Tribe's
reservation lands.
This Tribe--the one that welcomed the Pilgrims in 1620--deserves to
have its trust lands, located within its aboriginal territory, secured
through this legislation. The City of Taunton sees it as a moral
imperative to ensure that the Tribe is not forced back into landless.
But it is also a moral and economic imperative for the City of
Taunton. The City of Taunton has already overwhelmingly approved
through a city-wide local referendum the Tribe's planned economic
development. Our partnership with the Tribe will create thousands of
good-paying jobs--jobs our community desperately needs. And we are
confident that the economic multiplier effect will lead to the further
growth of more businesses and ventures, and more revenue to the City.
We are grateful for the strong bipartisan support the Mashpee
Reservation Reaffirmation Act has received. We know that your
leadership is key to ensuring passage of this important legislation.
I respectfully urge you to support this legislation and move the
legislation out of your Committee as quickly as possible.
Sincerely,
Thomas C. Hoye Jr.,
Mayor.
______
TESTIMONY OF THE HON. THOMAS C. HOYE, JR., MAYOR, CITY OF TAUNTON,
MASSACHUSETTS
URGING PASSAGE OF THE MASHPEE RESERVATION REAFFIRMATION ACT (S. 5244)
Hearing Before the Indian, Insular & Alaska Native Affairs
Subcommittee, House Natural Resources Committee
July 24, 2018
My name is Thomas C. Hoye, Jr. I am mayor of the City of Taunton,
Massachusetts. On behalf of our City, I respectfully request that this
written testimony be included in the record. The health and well-being
of the City of Taunton and the Mashpee Wampanoag Indian Tribe are
closely intertwined, and for this reason the City urges the Committee
to vote favorably on the legislation as soon as possible and to do
everything within its power to ensure it becomes law in this Congress.
Background
The City of Taunton has a population of nearly 57,000 people and is
located in southeastern Massachusetts. Founded in 1637 by members of
the Plymouth Colony, the City is located squarely within Wampanoag
traditional historical territory.
Our City has a long history of successful economic development. The
Taunton Ironworks was established in 1656 and operated for more than
two hundred years. In the 19th century, we also became home to famous
silversmithing companies, include some still known today, like Reed &
Barton. Other famous manufacturers operating in Taunton beginning in
the 19th century included the Weir Stove Company, the Field Tack
Company, Mason Machine Works, Taunton Locomotive Works, and Whittenton
Mills. Our location on the Taunton River made our City a major shipping
point before the railroads were built, and afterwards Taunton became an
important railroad hub for the transportation of agricultural goods and
industrial products.
Unfortunately, in more recent years, our manufacturing industries
have suffered and diminished, and our City and our region has not been
able to benefit from the same economic improvement as we see in other
parts of the Commonwealth of Massachusetts and other parts of the
United States. The impact on our City and its infrastructure is
palpable.
Close Working Relationship With the Mashpee Wampanoag Tribe
The City and the Tribe have a close working relationship. The City
and the Tribe have entered into an agreement under which, among other
things, the Tribe will pay the City a share of net revenues generated
from slot machines, the Tribe will make PILOT payments to the City, and
the Tribe will pay for all up-front infrastructure costs. The agreement
contemplates over fifteen million dollars in one-time mitigation
improvements and over four million dollars in annual recurring
mitigation payments to the City, as well as a minimum of eight million
dollars per year of slot machine revenue. (Please See Exhibit A:
Intergovernmental Agreement By and Between the Mashpee Wampanoag Tribe
and the City of Taunton, dated May 17, 2012, and, Amendment to
Intergovernmental Agreement, dated March 13, 2013)
Economic Importance to the Entire Southeastern Massachusetts Region
The litigation that has raised technical legal objections to the
creation of the Tribe's reservation threatens thousands of much needed
jobs, jeopardizes critical traffic infrastructure that would benefit
the entire region, and prevents the Commonwealth from collecting
hundreds of millions of dollars in revenue that could be going to
education and economic development that would benefit all of us. This
project will stimulate strong economic growth for the City of Taunton
and the region and provide many needed jobs at a time when projects of
this magnitude are few and far between. The Casino will supplement
Taunton's budget with an anticipated over $13 million dollars a year
that would enable us to hire badly needed police officers,
firefighters, teachers, and, to fund well overdue public infrastructure
projects.
We Urge Congress to Enact the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act
The Tribe's economic development plan has the overwhelming support
of the City of Taunton, as demonstrated by the public referendum vote
with 63 percent of those casting ballots voting in favor of the
proposed Casino. (Please see Exhibit B: City of Taunton 6/9/2012
Special Election Official Results) The City's residents know that a
tribal gaming facility located on the portion of the Tribe's
reservation that abuts our City will create thousands of good paying
jobs, upwards of $75 million in local and state tax revenue, and
another $15 million in desperately needed infrastructure improvements.
And the economic multiplier effects for area businesses would be
tremendous.
Our schools, police and fire departments also need a boost in
revenue. Cities across the state will benefit from the development that
the Tribe has sought to do. We need Congress' help to protect the
Tribe, protect the people of Taunton, and to protect southeastern
Massachusetts from the negative consequences of seemingly endless
litigation about otherwise meaningless technical legal issues.
In sum, not only is passing the Reservation Reaffirmation Act the
right thing to do for the City economically, it is also the right thing
to do considering the Tribe's long-standing ties to Taunton and the
surrounding area going back thousands of years, and the fact that it
was the Wampanoag people that made the settlement of our state possible
because of their hospitality.
For these reasons, we urge Congress to enact this legislation as
quickly as possible.
______
Taunton Area Chamber of Commerce,
Taunton, Massachusetts
Hon. Ruben Gallego, Chairman,
Hon. Paul Cook, Ranking Member,
House Subcommittee on Indigenous Peoples of the United States,
Washington, DC 20515.
Re: The Taunton Area Chamber of Commerce Urges Swift Passage of the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act
Dear Chairman Gallego and Ranking Member Cook:
On behalf of the Taunton Area Chamber of Commerce, I am writing to
respectfully urge the House Natural Resources Committee and its
Subcommittee on Indian, Insular and Alaska Native Affairs, to work to
enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
5244 and S. 2628). We commend the Committee for scheduling a hearing to
hear testimony on this important legislation and we respectfully
request to submit testimony for the hearing record.
As we expressed in our June 7, 2018 letter to this Committee, the
establishment of the Mashpee Wampanoag Tribe's reservation has brought
the promise of significant economic development that will not only
benefit the Mashpee Wampanoag Tribe but the entire Taunton Community.
H.R. 5244 will ensure that the Tribe's reservation is protected and
secure economic growth in the southeast region for years to come.
The construction and operation of the Tribe's planned casino and
resort will create nearly 7,000 jobs. Additionally, the operation of
the casino and resort will revitalize existing businesses in the
surrounding areas and incentivize the creation of new ventures that
will provide even more jobs for residents. The operation of the casino
and resort will also bring more than just jobs to our community. The
Tribe has committed to $30 million in upgrades to the Taunton water
system and roadways and $10 million per year to local first responders
and Taunton city services.
Passage of the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act is critically important to the economic future of Taunton, and we
urge this Committee to act swiftly to support the enactment of this
legislation.
Sincerely,
Kerrie Babin
______
TESTIMONY IN OPPOSITION FOR THE RECORD
TESTIMONY OF THE HON. DAVID N. CICILLINE AND
THE HON. JAMES R. LANGEVIN
REPRESENTATIVES IN CONGRESS FROM THE STATE OF RHODE ISLAND
Good afternoon Chairman Gallego, Ranking Member Cook, and members
of the House Committee on Natural Resources' Indigenous Peoples
Subcommittee. Thank you for allowing us to submit our testimony today
to express our strong opposition to H.R. 312, the Mashpee Wampanoag
Tribe Reservation Reaffirmation Act. H.R. 312 would allow the Mashpee
Wampanoag Tribe to open a casino in Taunton, Massachusetts. The bill
would not only overturn a 2018 decision by the U.S. Department of
Interior and reverse a 2016 ruling by the U.S. District Court in
Massachusetts, but it would also deliver a devastating blow to Rhode
Island's economy.
The Mashpee Wampanoag Tribe was federally recognized in 2007 after
the Tribe hired former lobbyist and convicted felon Jack Abramoff.
Prior to that time, the Tribe's application for Federal recognition had
not been acted upon since it was originally filed in the 1970s. In
2009, the U.S. Supreme Court ruled in Carcieri v. Salazar that the
Federal Government could only take land into trust for tribes that were
recognized when the Indian Reorganization Act passed in 1934. In 2015,
the U.S. Department of Interior defied the 2009 Supreme Court ruling
and unjustly took land into trust for the Mashpee Tribe using a novel
and flawed methodology. A year later, residents of Taunton,
Massachusetts sued in U.S. District Court and won to stop the U.S.
Department of the Interior from taking land into trust for the Tribe.
In 2018, the U.S. Department of the Interior reviewed the Mashpee
application pursuant to the correct legal methodology and summarily
rejected the Tribe's application in a thorough and well-reasoned
decision. The Mashpee Tribe, backed by a Malaysian Gaming Company, is
now looking to Congress to reverse major Federal court decisions and
the recent ruling by the U.S. Department of the Interior.
If H.R. 312 were to become law, it would have a devastating impact
on Rhode Island's economy. The Twin River and Tiverton casinos generate
over $300 million in revenue, representing the third largest source of
revenue for Rhode Island. The revenue from the casino industry in Rhode
Island helps fund education and infrastructure programs. Our state
would suffer tremendously if Congress passed H.R. 312 by allowing the
Mashpee Wampanoag Tribe to build a casino on our border.
While we are primarily concerned about the impact this bill will
have on our state, we are also concerned about the precedent it will
set. If Congress grants the Mashpee Tribe this exception, it would
encourage other tribes to seek individual relief from Congress. Instead
of Congress picking winners and losers, we believe that Congress should
look at updating the Indian Reorganization Act of 1934 to make the land
to trust process more transparent and fair.
Last, we are concerned by the haste in which this bill was nearly
brought to the Floor last week under suspension without a hearing or a
markup. We thank Chairman Gallego and Ranking Member Cook for taking
the time to have a hearing on this controversial bill today. A bill
that overturns decisions by the U.S. Department of the Interior, U.S.
Supreme Court, and U.S. District Court should go through the entire
Committee process before being brought to the House Floor for vote
under regular order.
Thank you again for the opportunity to express our opposition to
H.R. 312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act.
______
Submissions for the Record by Rep. Keating
LETTERS OF SUPPORT
Akiak Native Community,
Akiak, Alaska
June 5, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Please Support the H.R. 5244/S. 2628, Mashpee Wampanoag Tribe
Reservation Reaffirmation Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of my Tribe, the Akiak Native Community, I write today to
ask that you support H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act, which are now pending in the House
Natural Resources Committee--Subcommittee on Indian, Insular, and
Alaska Native Affairs, and in the Senate Indian Affairs Committee. This
bipartisan bill is broadly supported in Indian country and is urgently
needed in order to ensure that the Mashpee Reservation, located within
the Mashpee Tribe's traditional homelands, is not disestablished due to
a technicality.
The Mashpee Reservation was established in accordance with the
Indian Reorganization Act and with the strong support of the local
community. However, this reservation is now being threatened by
litigation that could soon return the Tribe to landlessness--something
that the IRA was enacted to prevent. As you know, tribal land allows
tribes to protect their cultures, provide public services to their
members, and engage in economic development. By reaffirming the status
of the Mashpee Reservation, the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act will ensure that these essential components of self-
determination are preserved.
We respectfully request that Congress fulfill its trust
responsibility to the Mashpee Tribe by enacting the Mashpee Wampanoag
Tribe Reservation Reaffirmation Act. Thank you for considering this
request and for the work you do for Indian country.
Respectfully submitted,
Ivan M. Ivan, Chief Michael Williams, Sr., Tribal
Council
Moses Owen, Tribal Council Sam Jackson II, Tribal Council
Apache Alliance,
Scottsdale, AZ
May 16, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf the member tribes of the Apache Alliance, we are writing
to express our support for the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act (H.R. 5244 and S. 2628). As a federally recognized
Indian Tribe, the Mashpee Wampanoag Tribe should be entitled to the
same benefits under the Indian Reorganization Act as are other
federally recognized tribes. Yet because of a legal technicality, the
Mashpee Wampanoag Tribe's federal reservation is under attack in the
federal courts and could be disestablished by later this year--
something the federal government has not allowed to happen since the
Termination Era.
Congress's plenary authority over Indian issues is the only thing
standing between the Mashpee Tribe's reservation and the Tribe's return
to landlessness. We urge the Senate Indian Affairs Committee, and the
House Natural Resources Committee and its Subcommittee on Indian and
Alaska Native Affairs, to hold hearings on these bills and vote them
out of Committee as quickly as possible. You have the power to prevent
this Tribe from suffering yet another historical wrong.
Sincerely,
Jeff Haozous,
President.
Affiliated Tribes of Northwest Indians,
Portland, OR
June 6, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of our organization, the Affiliated Tribes of Northwest
Indians (ATNI) representing over fifty tribes in the northwest, we
respectfully urge that the Senate Indian Affairs Committee, and the
House Natural Resources Committee and its Subcommittee on Indian and
Alaska Native Affairs, do everything possible to ensure swift enactment
of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244
and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe's
reservation--which was established with the strong support of
surrounding local governments--is threatened by litigation brought by a
NIMBY group based on technical legal issues. We urge Congress to use
its plenary authority to ensure that the Mashpee Tribe is not forever
rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act.
Respectfully,
Leonard Forsman,
President.
Big Valley Band of Pomo Indians,
Lakeport, CA
May 10, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of my Tribe, we respectfully urge that the Senate Indian
Affairs Committee, and the House Natural Resources Committee and its
Subcommittee on Indian and Alaska Native Affairs, do everything
possible to ensure swift enactment of the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe's
reservation--which was established with the strong support of
surrounding local governments--is threatened by litigation brought by a
NIMBY group based on technical legal issues. We urge Congress to use
its plenary authority to ensure that the Mashpee Tribe is not forever
rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act.
Sincerely,
Anthony Jack,
Tribal Chairman.
Cheyenne River Sioux Tribe,
Eagle Butte, South Dakota
June 4, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
I am writing on behalf of my Tribe to respectfully request that you
take all necessary action to ensure that the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as
soon as possible. This is an urgent matter, as the Mashpee Tribe's
reservation is in danger of being taken out of trust, despite strong
local government support for its creation.
This threat to the Mashpee Tribe's federally protected lands,
established under the authority of the Indian Reorganization Act, is
the result of litigation brought by a small group of individuals,
challenging the Tribe's reservation on technical legal grounds. This
would be the first time in modern history that a reservation is
disestablished, and would result in the Mashpee Tribe becoming
perpetually landless. Congress must exercise its plenary authority to
ensure that the Mashpee Tribe and its reservation land is protected.
The Mashpee Tribe, like all other federally recognized tribes, should
be entitled to a federally protected reservation where it can exercise
its sovereignty, protect its culture, and engage in self-determination.
Please enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act.
Thank you and if you have any questions please feel free to contact
me at: XXXXXXXXXXXXXXX.
Sincerely,
Harold C. Frazier,
Chairman.
The Chippewa Cree Tribe of the Rocky Boy's
Reservation,
Box Elder, Montana
October 8, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Please Support the H.R. 5244/S. 2628, Mashpee Wampanoag Tribe
Reservation Reaffirmation Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of my Tribe, the Chippewa Cree Tribe, I write today to
ask that you support H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act, which are now pending in the House
Natural Resources Committee--Subcommittee on Indian, Insular, and
Alaska Native Affairs, and in the Senate Indian Affairs Committee. This
bipartisan bill is broadly supported in Indian country and is urgently
needed in order to ensure that the Mashpee Reservation, located within
the Mashpee Tribe's traditional homelands, is not disestablished due to
a technicality.
The Mashpee Reservation was established in accordance with the
Indian Reorganization Act and with the strong support of the local
community. However, this reservation is now being threatened by
litigation that could soon return the Tribe to landlessness--something
that the IRA was enacted to prevent. As you know, tribal land allows
tribes to protect their cultures, provide public services to their
members, and engage in economic development. By reaffirming the status
of the Mashpee Reservation, the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act will ensure that these essential components of self-
determination are preserved.
We respectfully request that Congress fulfill its trust
responsibility to the Mashpee Tribe by enacting the Mashpee Wampanoag
Tribe Reservation Reaffirmation Act. Thank you for considering this
request and for the work you do for Indian country.
Sincerely,
Harlan Baker,
Chairman of the Chippewa Cree Tribe.
Fort Sill--Chiricahua--Warm Springs--Apache Tribe,
Apache, Oklahoma
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of my Tribe, we respectfully urge that the Senate Indian
Affairs Committee, and the House Natural Resources Committee and its
Subcommittee on Indian and Alaska Native Affairs, do everything
possible to ensure swift enactment of the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe's
reservation--which was established with the strong support of
surrounding local governments--is threatened by litigation brought by a
NIMBY group based on technical legal issues. We urge Congress to use
its plenary authority to ensure that the Mashpee Tribe is not forever
rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act.
Sincerely,
Jeff Haozous,
Tribal Chairman.
The Grand Traverse Band of Ottawa and Chippewa
Indians,
Peshawbestown, MI
September 26, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for H.R. 5244, the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
In 1980, the Grand Traverse band of Ottawa and Chippewa Indians
(GTB) became the first federally recognized tribe under the CFR Part 83
process. These administratively promulgated federal rules to recognize
an Indian tribe have their origins in the Congressional Indian Policy
Review Commission findings in the 1970s that the federal government had
purposely or negligently neglected its trust obligation to primarily
historic Midwest and Eastern Tribes. GTB, like many Indian tribes, had
been administratively terminated by federal policy and, as a result,
the federal trust relation between GTB and the United States was
diminished, but never terminated. As part of the findings in the
historic Indian Policy Review Commission, the Secretary of the Interior
was congressionally directed to promulgate federal rules to recognize
Indian tribes that had been neglected by variable and inconsistent
administration of federal Indian policy over time.
The Mashpee Wampanoag Tribe is substantially similar to the Grand
Traverse Band of Ottawa and Chippewa Indians in its history of neglect
by the federal government. That history of neglect by the United States
should not now be used to categorically determine an arbitrary date
under federal law tied to the Indian Reorganization Act (IRA). Without
a question, the Mashpee Wampanoag Tribe is an Indian tribe. The
circumstances of Mashpee's relation to federal Indian law is largely a
result of federal Indian policy, which is not controlled by the Mashpee
tribe, indeed, the federal government by its neglect controlled the
federal Indian law relationship between Mashpee and the federal
government. GTB suffered a similar fate of neglect.
GTB urges Congress to recognize the inequities of an arbitrary date
created by the IRA and to therefore extend the benefits of federal
Indian law to the Mashpee Wampanoag by the enactment of H.R. 5244, the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act. The enactment of
H.R. 5244 would be a measure of historical justice to the Mashpee based
upon its previous historical neglect by the federal government.
Sincerely,
Thurlow ``Sam'' McClellan,
Tribal Chairman.
Guidiville Indian Rancheria,
Talmage, CA
June 7, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of our Tribe, we respectfully urge that the Senate Indian
Affairs Committee, and the House Natural Resources Committee and its
Subcommittee on Indian and Alaska Native Affairs, do everything
possible to ensure swift enactment of the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. We are acutely and
painfully aware of the importance of this, having had our reservation
lands illegally terminated by the federal government over 60 years ago.
Despite our best efforts, we have yet to recover a usable trust land
base. The process to acquire new lands in trust is long, difficult,
expensive and wrought with anti-Indian organizations obstructionist
tactics and litigation. The result of no land base on all aspects of
the Tribe is absolutely devastating, and we can testify to this fact
first hand.
We understand the Mashpee Tribe's reservation, which was
established with the strong support of surrounding local governments,
but is now threatened by litigation brought by a NIMBY group based on
technical legal issues. Addressing this situation is the perfect
opportunity for the United States to demonstrate and perform its trust
responsibility to the Tribe by using its lawmaking authority to protect
the Tribe from such unethical attacks. We strongly urge Congress to use
its plenary authority to ensure that the Mashpee Tribe is not forever
rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act.
Sincerely,
Merlene Sanchez,
Tribal Chairperson.
Hualapai Tribe,
Office of the Chairperson,
Peach Springs, Arizona
October 17, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of the Hualapai Tribe, we respectfully urge that the
Senate Indian Affairs Committee, and the House Natural Resources
Committee and its Subcommittee on Indian and Alaska Native Affairs, do
everything possible to ensure swift enactment of the Mashpee Wampanoag
Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe's
reservation--which was established with the strong support of
surrounding local governments--is threatened by litigation brought by a
NIMBY group based on technical legal issues. We urge Congress to use
its plenary authority to ensure that the Mashpee Tribe is not forever
rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act.
Sincerely,
Damon R. Clarke, Chairman
Hualapai Tribal Council
Jena Band of Choctaw Indians,
Jena, Louisiana
May 9, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of the Jena Band of Choctaw Indians, a federally
recognized Tribe in Louisiana and long time member of the United South
and Eastern Tribes, we respectfully urge that the Senate Indian Affairs
Committee and the House Natural Resources Committee and its
Subcommittee on Indian and Alaska Native Affairs work diligently and do
everything legally possible to ensure the swift enactment of the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S.
2628).
We believe every federally recognized tribe in the United States is
entitled to a federally protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe's
reservation, which was established with the strong support of
surrounding local governments and which I have visited, is threatened
by litigation brought by a NIMBY group based on, as I understand it,
technical legal issues. We urge Congress to use its plenary authority
and enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act to
ensure that the Mashpee Tribe is not forever rendered perpetually
landless.
Sincerely,
B. Cheryl Smith,
Tribal Chief.
Lac Vieux Desert Band of Lake Superior Chippewa
Tribal Government,
Watersmeet, Michigan
June 8, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for H.R. 5244/S. 2628, Mashpee Wampanoag Tribe Reservation
Reaffirmation Act
Dear esteemed members of Congress:
I am writing on behalf of Lac Vieux Desert Band of Lake Superior
Chippewa Indians to advocate for the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628). We strongly urge
the Senate Indian Affairs Committee, and the House Natural Resources
Committee and its Subcommittee on Indian and Alaska Native Affairs, to
utilize their plenary power and ensure the reaffirmation of the Mashpee
Tribe's Reservation.
The Mashpee Wampanoag Tribe is a federally recognized tribe with a
reservation located within its historical homeland in Massachusetts.
This reservation was established in accordance with the Indian
Reorganization Act and with strong local government support. The
Mashpee Tribe has been successful in rebuilding and providing for its
members, as well as establishing great relationships with surrounding
local governments. The Mashpee Tribe's reservation is threatened by
litigation that could disestablish the reservation, which has not
happened since the Termination era.
The Mashpee Tribe is not asking for new or special rights, only the
reaffirmation of its reservation. If Congress does not exercise its
plenary authority, the Mashpee Tribe's reservation and means of self-
sufficiency will be lost. This is consistent with the federal
government's trust obligations to federally recognized tribes. Please
enact this important legislation.
Sincerely,
James Williams, Jr.,
Tribal Chairman.
Lower Brule Sioux Tribe,
Tribal Administration,
Lower Brule, SD
June 6, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for H.R. 5244/S. 2628, Mashpee Wampanoag Tribe Reservation
Reaffirmation Act
Dear esteemed members of Congress:
I am writing on behalf of the Lower Brule Sioux Tribe to advocate
for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
5244 and S. 2628). We strongly urge the Senate Indian Affairs
Committee, and the House Natural Resources Committee and its
Subcommittee on Indian and Alaska Native Affairs, to utilize their
plenary power and ensure the reaffirmation of the Mashpee Tribe's
Reservation.
The Mashpee Wampanoag Tribe is a federally recognized tribe with a
reservation located within its historical homeland in Massachusetts.
This reservation was established in accordance with the Indian
Reorganization Act and with strong local government support. The
Mashpee Tribe has been successful in rebuilding and providing for its
members, as well as establishing great relationships with surrounding
local governments. The Mashpee Tribe's reservation is threatened by
litigation that could disestablish the reservation, which has not
happened since the Termination Era.
The Mashpee Tribe is not asking for new or special rights, only the
reaffirmation of its reservation. If Congress does not exercise its
plenary authority, the Mashpee Tribe's reservation and means of self-
sufficiency will be lost. This is consistent with the federal
governments trust obligations to federally recognized tribes. Please
enact this important legislation.
Sincerely,
Boyd I. Gourneau,
Chairman.
Mashantucket Pequot Tribe,
Ledyard, Connecticut
June 8, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
I am writing on behalf of my Tribe to support the Mashpee Wampanoag
Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628). I
understand that this is an urgent matter for the Mashpee Tribe and that
they have strong local government support for the creation of its
reservation.
I further understand that the threat to the Mashpee Tribe's
federally protected lands is the result of litigation brought by a
small group of individuals, challenging the Tribe's reservation.
Congress should exercise its plenary authority to ensure that the
Mashpee Tribe and its reservation land are protected. The Mashpee
Tribe, like all other federally recognized tribes, should be entitled
to a federally protected reservation where it can exercise its
sovereignty, protect its culture, and engage in self-determination.
Please enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act.
Sincerely,
Rodney Butler,
Chairman.
CONGRESS OF THE UNITED STATES
Stand with the Tribe who welcomed the Pilgrims:
Support H.R. 312, the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act
Dear Colleague,
We write to ask for your support for H.R. 312, the Mashpee
Wampanoag Tribe Reservation Reaffirmation Act. This bipartisan
legislation would require the Department of the Interior (DOI) to keep
the Mashpee Wampanoag land, approximately 320 acres in Massachusetts,
in trust as federally recognized reservation land. The Mashpee
Wampanoags have called southeastern New England home for more than
12,000 years. In fact, they were the tribe who welcomed the Pilgrims
and helped to ensure their survival during their first winter in
Plymouth, Massachusetts.
Our country has a long, tragic history of disadvantaging Native
American tribes. It took a nearly 40-year legal battle for the Mashpee
Wampanoag Tribe to become federally recognized in 2007, which finally
granted the Tribe access to important federal resources to help protect
centuries of culture, provide adequate employment and housing, and
ensure access to essential services like law enforcement, native
language programs, pre-K education, and more.
However, the Supreme Court's decision in Carcieri v. Salazar just
two years later called the status of the Mashpee Wampanoag Tribe--and
the status of tribes around the country--into question. Additionally,
the Mashpee Wampanoag Tribe has been uniquely affected. A 2018 decision
by the DOI to reverse its support for the Tribe has left them
vulnerable to the unprecedented fate of having their land taken out of
trust and losing access to these critical resources. Without the
straightforward fix in H.R. 312, the Tribe could cease to exist.
All other federally recognized tribes in New England have
congressionally ratified land claim settlements in which reservations
were set aside for those tribes. Their reservations, therefore, are
protected and not at any risk. The Mashpee Wampanoag Tribe is the only
federally recognized New England tribe for which Congress has not taken
action to create and protect a reservation.
By passing H.R. 312, Congress will not only be protecting the Tribe
whose ancestors helped ensure the survival of the Pilgrim settlement,
it will protect all Native American tribes by sending a strong message
that Congress does not approve of any efforts to undermine the
statutory federal recognition of tribes throughout the country.
Although there has been some negative representation of what H.R.
312 seeks to accomplish, the legislation does not provide the Mashpee
Wampanoag Tribe with any new or special rights. Rather, it simply
ensures the Mashpee Wampanoag Tribe is no longer vulnerable to having
its land taken out of trust, and the Tribe is treated equally alongside
other Native American tribes so it can care for its members and protect
its legacy. This action is not without precedent, as Congress has
previously acted in similar situations to protect tribal lands. H.R.
312 mirrors language recently enacted as parts of the Gun Lake Trust
Land Reaffirmation Act (P.L. 113-179) and the Thomasina E. Jordan
Indian Tribes of Virginia Federal Recognition Act of 2017 (P.L. 115-
121).
H.R. 312 has received widespread support from Native American
communities across the country, including:
Pantribal Organizations including the National Congress of
American Indians, the United South and Eastern Tribes, the
Apache Alliance, the Rocky Mountain Tribal Leaders Council,
the Affiliated Tribes of Northwest Indians, the Midwest
Alliance of Sovereign Tribes, the Native American Rights
Fund, the National Indian Gaming Association, and the
Native American Finance Officers Association
Individual Tribes including the Akiak Native Community
(Alaska), the Tohono O'odham Nation (Arizona), the Pascua
Yaqui Tribe (Arizona), the San Carlos Apache Tribe
(Arizona), the Tonto Apache Tribe (Arizona), the Hualapai
Tribe (Arizona), the Mechoopda Indian Tribe (California),
the Big Valley Band of Pomo Indians (California), the
Sycuan Band of the Kumeyaay Nation (California), the
Guidiville Indian Rancheria (California), the Mashantucket
Pequot Tribe (Connecticut), the Mohegan Tribe
(Connecticut), the Nez Perce Tribe (Idaho), the Jena Band
of Choctaw Indians (Louisiana), the Grand Traverse Band of
Ottawa and Chippewa Indians (Michigan), the Lac Vieux
Desert Band of Lake Superior Chippewa (Michigan), the
Chippewa Cree Tribe of the Rocky Boy's Reservation
(Montana), the Shinnecock Indian Nation (New York), the
Spirit Lake Tribe (North Dakota), the Ft. Sill Apache Tribe
(Oklahoma), the Otoe Missouri Tribe of Indians (Oklahoma),
the Narragansett Indian Tribe (Rhode Island), the Yankton
Sioux Tribe (South Dakota), the Cheyenne River Sioux Tribe
(South Dakota), the Lower Brule Sioux Tribe (South Dakota),
the Ute Indian Tribe (Utah), the Suquamish Tribe
(Washington), the Stockbridge-Munsee Band of Mohican
Indians (Wisconsin), the Oneida Nation (Wisconsin), and the
St. Croix Tribe of Chippewa Indians (Wisconsin)
Thank you for your attention to this bipartisan legislation as we
work to support the existence of the Mashpee Wampanoag Tribe. If you
have any questions or concerns about this legislation, please contact
Michael Wertheimer with Rep. Keating at (XXX) XXX-XXXX. Should the
opportunity arise, we respectfully urge you to vote Yes on passage of
this legislation.
Sincerely,
William R. Keating Joseph P. Kennedy, III
Member of Congress Member of Congress
Richard E. Neal James P. McGovern
Member of Congress Member of Congress
Stephen F. Lynch Katherine M. Clark
Member of Congress Member of Congress
Seth Moulton Ayanna Pressley
Member of Congress Member of Congress
Lori Trahan
Member of Congress
The Commonwealth of Massachusetts,
Massachusetts Senate,
Boston, MA
August 6, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. Doug LaMalfa,
Hon. Ruben Gallego,
House Subcommittee on Indian and Alaska Native Affairs,
Washington, DC 20515.
Re: The Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
5244 and S. 2628)
Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa,
and Ranking Member Gallego:
I write to you today in support H.R. 5244 as an economic stimulus
to our state and region. The construction and operation of the First
Light Resort and Casino by the Mashpee Wampanoag Tribe will bring a
significant economic impact to the Southeastern Massachusetts economy,
providing stable and good paying jobs for years to come. Through
partnerships with local businesses, the Tribe has showed an exceptional
commitment to revitalizing the entirety of the local and regional
economy, and the immediate creation of nearly 7,000 rests on their
success in this endeavor.
I would like to thank the Committee for holding a hearing on this
matter, and respectfully request that this legislation be passed.
Sincerely,
Nick Collins,
State Senator,
First Suffolk District.
The Commonwealth of Massachusetts,
Massachusetts Senate,
Office of the Minority Leader,
Boston, MA
August 6, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. Doug LaMalfa,
Hon. Ruben Gallego,
House Subcommittee on Indian and Alaska Native Affairs,
Washington, DC 20515.
Re: The Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
5244 and S. 2628)
Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa,
and Ranking Member Gallego:
Job creation and sustainable economic development are crucial to
the continued growth of the Southeastern Massachusetts region. The
construction and operation of the First Light & Casino by the Mashpee
Wampanoag Tribe will bring a much needed boost to struggling
Southeastern Massachusetts economy. The bipartisan Mashpee Wampanoag
Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628) will ensure
that the Tribe's reservation is protected, and will secure economic
growth in Southeastern Massachusetts for years to come. I applaud the
Committee for scheduling a hearing on this important legislation and I
respectfully request that this letter be submitted for the hearing
record.
The Tribe has worked to build partnerships with many local
businesses to facilitate the construction of the First Light Resort &
Casino. These partnerships will help to revitalize and strengthen the
Southeastern Massachusetts community. All of this vital economic
development for Southeastern Massachusetts is now at risk due to
bureaucratic red tape and technical legal issues that are blocking the
Tribe from moving ahead with the casino and resort.
If H.R. 5244 passes, construction of the casino and resort could
resume immediately, instantly creating jobs for residents of
Southeastern Massachusetts. The construction and operation of the
casino and resort will create nearly 7,000 jobs. Additionally, the
operation of the casino and resort will revitalize existing business in
Southeastern Massachusetts and incentivize businesses to come to the
community. I urge this Committee to support economic development in
Southeastern Massachusetts by working to secure passage of H.R. 5244.
Sincerely,
Bruce E. Tarr,
State Senator,
Minority Leader.
The Commonwealth of Massachusetts,
House of Representatives,
State House, Boston, MA
July 25, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. Doug LaMalfa,
Hon. Ruben Gallego,
House Subcommittee on Indian and Alaska Native Affairs,
Washington, DC 20515.
Re: The Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
5244 and S. 2628)
Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa,
and Ranking Member Gallego:
Job creation and sustainable economic development are crucial to
the continued growth of the Southeastern Massachusetts region. The
construction and operation of the First Light Resort & Casino by the
Mashpee Wampanoag Tribe will bring a much needed boost to the
struggling Southeastern Massachusetts economy. The bipartisan Mashpee
Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628)
will ensure that the Tribe's reservation is protected and secure
economic growth in the Southeastern Massachusetts region for years to
come. I applaud the Committee for scheduling a hearing on this
important legislation and I respectfully request that this letter be
submitted for the hearing record.
The Tribe has worked to build partnerships with many local
businesses to facilitate the construction of the First Light Resort &
Casino. These partnerships will help to revitalize and strengthen the
Southeastern Massachusetts community. All of this vital economic
development for Southeastern Massachusetts is now at risk due to
bureaucratic red tape and technical legal issues that are blocking the
Tribe from moving ahead with the casino and resort.
If H.R. 5244 passes, construction of the casino and resort could
resume immediately, instantly creating jobs for residents of
Southeastern Massachusetts. The construction and operation of the
casino and resort will create nearly 7,000 jobs. Additionally, the
operation of the casino and resort will revitalize existing business in
Southeastern Massachusetts and incentivize businesses to come to the
community. I urge this Committee to support economic development in
Southeastern Massachusetts by working to secure passage of H.R. 5244.
Sincerely,
Bradley H. Jones Jr.,
Minority Leader.
The Commonwealth of Massachusetts,
House of Representatives,
State House, Boston, MA
March 27, 2019
Hon. Ruben Gallego, Chairman,
Hon. Paul Cook, Ranking Member,
House Subcommittee on Indigenous Peoples of the United States,
Washington, DC 20515.
Re: Mashpee Wampanoag Tribe Reservation Reaffirmation Act, H.R. 312
Dear Chairman Gallego and Ranking Member Cook:
I am writing to urge the House Natural Resources Committee and its
Subcommittee on Indigenous Peoples of the United States to support the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act.
The establishment of the Mashpee Wampanoag Tribe's reservation has
brought the promise of significant economic development that will not
only benefit the Mashpee Wampanoag Tribe but the entire southeastern
Massachusetts region. It will ensure that the Tribe's reservation is
protected and secure long-term economic growth in the entire region for
years to come.
The construction and operation of the Tribe's planned casino and
resort will create nearly 7,000 jobs. Additionally, the operation of
the casino and resort will revitalize existing businesses in the
surrounding areas and incentivize the creation of new ventures that
will provide even more jobs for residents. The operation of the casino
and resort will also bring more than just jobs to our community. The
Tribe has committed to $30 million in upgrades to infrastructure in the
region and $10 million per year to local first responders and municipal
services.
Passage of the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act is critically important to the economic future of southeastern
Massachusetts and we urge you and this Committee to act swiftly to
support the enactment of this legislation.
Sincerely,
Shaunna O'Connell,
State Representative.
The Commonwealth of Massachusetts,
House of Representatives,
State House, Boston, MA
March 27, 2019
Hon. Raul Grijalva, Chairman,
Hon. Rob Bishop, Ranking Member,
House Committee on Natural Resources,
Washington, DC 20515.
Dear Chairman Grijalva and Ranking Member Bishop:
Wuneekeesuq. I am the State Representative for the Third Barnstable
District in Massachusetts, that includes the town of Mashpee. I am
writing to urge the House Natural Resources Committee to move H.R.
312--The Mashpee Wampanoag Tribe Reservation Reaffirmation Act to the
floor of the House as soon as possible. H.R. 312 will confirm the
status of the tribe's reservation.
The Mashpee Wampanoag Tribe has longstanding positive relationships
with local communities surrounding its reservation. The Mashpee
Wampanoag Tribe's ancestors taught the Pilgrims how to survive and farm
the land. Leaders of the tribe formed an alliance with the Pilgrims,
and the very first Thanksgiving was a Wampanoag feast joined by the
Pilgrims to celebrate a successful fall harvest. That feast provided an
enduring lesson of what can come from people of different backgrounds
sitting down together and authentically listening to each other.
Over the centuries, the tribe has endured challenges brought about
as a result of settlement and development. These challenges have been
overcome with a sense of purpose and identity, and the tribe was
officially recognized by the federal government in 2007. The town of
Mashpee and the Mashpee Wampanoag Tribe have worked together to build a
relationship of mutual respect and recognition as is evidenced by the
town's support for H.R. 312.
Much of the dialogue around tribal recognition and land in trust
has surrounded the development of a resort casino and the economic
benefits to the Wampanoag and Southeastern Massachusetts. While this is
definitely an important factor, it should not be the sole reason for
reaffirming the reservation status. The lands currently in trust are a
small representation of the aboriginal homeland of the Wampanoag
people. The People of the First Light have sustainably lived on this
land for over 12,000 years. Reaffirmation of land in trust by the U.S.
Congress would be a clear message that also reaffirms the dignity and
identity of a culture that predates the American experiment.
As for the economic benefits of H.R. 312, the construction and
operation of the tribe's planned casino and resort will create nearly
7,000 jobs that will benefit residents of Southeastern Massachusetts.
Furthermore, the operation of the casino and resort will rejuvenate
existing businesses in the surrounding areas and help to bring further
development to our communities.
The Mashpee Wampanoag Tribe is an important partner to local
governments with the shared goal of creating a prosperous Southeastern
Massachusetts community. Passage of the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act will not only serve to benefit
Southeastern Massachusetts, it will reaffirm the culture and identity
of a people who helped settle the Commonwealth of Massachusetts. As my
Wampanoag friends would say, that in and of itself is Wuneeshkeety
(Good Medicine). I urge the Committee to favorably release this
legislation and work toward its enactment.
Kutaputunumuw,
David T. Vieira,
State Representative.
General Society of Mayflower Descendants,
The Mayflower Society,
Plymouth, MA
March 26, 2019
Hon. Nancy Pelosi,
Speaker of the House
12th District, California
Dear Speaker Pelosi:
The General Society of Mayflower Descendants requests your support
for H.R. 312, a bill designed to provide federal protection for Mashpee
Wampanoag reservation lands that were designated for the Tribe by
action of the US Department of the Interior in 2015. This legislation
enjoys bipartisan support, including key members of the House Natural
Resources Committee.
The decision by the Department of the Interior to hold the Tribe's
land in trust was based on a lengthy and arduous process which
demonstrated, among other things, that these 321 acres in Massachusetts
were just a tiny part of the homeland originally held by the ancestors
of the Mashpee Wampanoags. We find it to be unconscionable that on
September 7, 2018, the Interior Department reversed that decision,
based on their interpretation that the Tribe was not ``under federal
jurisdiction'' in 1934.
You may know that in March 1621 our ancestors and the ancestors of
the Mashpee Wampanoags formulated an agreement of mutual support. That
peaceful agreement lasted for over fifty years, outliving all of those
who signed it or who witnessed its creation, and allowing Plymouth
Colony to survive. Among the signers was Governor John Carver for the
Pilgrims and Massasoit, Osamequin, the Great Sachem of the Wampanoags.
Terms of that agreement spelled out that King James would esteem
Massasoit as his friend and ally. The agreement is a worthy precedent
to be followed today by all who honor the Pilgrims and the Native
Americans who created this critical part of American society.
The General Society of Mayflower Descendants is composed of 30,000
members, each of whom has proven lineage from the Mayflower Pilgrims.
We have members in all fifty states, Canada, and around the world. It
is no stretch to state that none of us would be here today without the
historically documented help that the people of the Wampanoag Tribe
gave to our ancestors. Part of our organization's purpose is to
perpetuate the memory of the Pilgrims' accomplishments. Upholding the
spirit of their agreement with their neighbors honors that purpose.
On behalf of our members I urge you to support H.R. 312 to
guarantee the Mashpee Wampanoag Tribe the protection of their lands,
which is an important element of their self-determination as a Tribe.
Thank you for your consideration of this request.
Sincerely,
George P. Garmany, Jr. MD,
Governor General.
Mechoopda Indian Tribe of Chico Rancheria,
Chico, CA
April 30, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of my Tribe, we respectfully urge that the Senate Indian
Affairs Committee, and the House Natural Resources Committee and its
Subcommittee on Indian and Alaska Native Affairs, do everything
possible to ensure swift enactment of the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe's
reservation--which was established with the strong support of
surrounding local governments--is threatened by litigation brought by a
NIMBY group based on technical legal issues. We urge Congress to use
its plenary authority to ensure that the Mashpee Tribe is not forever
rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act.
Sincerely,
Dennis E. Ramirez,
Chairman.
Midwest Alliance of Sovereign Tribes,
Gresham, WI
June 13, 2018
Hon. John Hoeven,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Hoeven:
The MAST office understands and respects these key issues that you
are working on day to day for Indian Country!
We respectfully, ask that the Senate Indian Affairs Committee, the
House Natural Resources Committee and it's Subcommittee on Indian and
Alaska Native Affairs take all action to ensure enactment of the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act--H.R. 5244 and S.
2628.
All Federally recognized tribes in the United States should be
holding federally protected lands labeled Reservations where all
Nations recognize and respect each other's Sovereignty!
We ask Congress to use its plenary authority to ensure that the
Mashpee Wampanoag Nation is not forever rendered perpetually landless
by enacting H.R. 5244 and S. 2628.
Respectfully,
Scott R. Vele,
Executive Director.
The Mohegan Tribe,
Uncasville, CT
June 6, 2016
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: The Mohegan Tribe Supports the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of the Mohegan Tribe of Indians of Connecticut, I
respectfully request that the Senate Indian Affairs Committee, and the
House Natural Resources Committee and its Subcommittee on Indian and
Alaska Native Affairs, do everything possible to ensure enactment of
the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244
and S. 2628).
The Mashpee Tribe is the only federally recognized tribe in the
Northeast that does not have a land claim settlement. As a result,
unlike other tribes with such settlements, Mashpee had no alternative
but to rely on the general land acquisition authority provided in the
Indian Reorganization Act (IRA) to establish a reservation. The Mashpee
Tribe's reservation is located within Mashpee's traditional homelands,
and was established in accordance with the IRA and with the strong
support of surrounding local governments. Unfortunately, the existence
of this reservation is now threatened by litigation based on technical
legal issues. These technical legal issues could lead to the
disestablishment of Mashpee's reservation--the first time an Indian
reservation would be disestablished since the Termination Era.
A land base is a foundational component of tribal sovereignty and
provides the space for tribes to maintain our cultural identities and
build our economies. The Mashpee Wampanoag Tribe Reservation
Reaffirmation Act reaffirms that status of the Tribe's reservation so
that the Tribe can continue to provide vital services to its members,
protect its culture, and expand its economy to provide for future
generations.
We urge Congress to employ its plenary authority to enact the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act to ensure that
the Mashpee Tribe is not forever rendered continually landless.
Sincerely,
Kevin P. Brown, 'Red Eagle'',
Chairman.
NAFOA,
Washington, DC
July 20, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
NAFOA is a national organization representing tribal governments
with the mission of building and sustaining economic and community
development. In furtherance of that mission, we are writing to express
our support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act (H.R. 5244 and S. 2628) and respectfully urge its swift enactment.
Lands are integral to tribal sovereignty, cultural identity, and
for building institutions and economies that foster the well-being of
tribal citizens. The U.S. Department of the Interior (DOI) has
exercised its authority under the Indian Reorganization Act (IRA) \1\
to restore tribal homelands following devastating Federal actions
including removal, allotment, and relocation policies. Over the last
several decades, restoration of homelands has enabled tribes to provide
essential government services to tribal members and develop their
communities. Any uncertainty regarding the status of tribal lands will
harm tribal governments' ability to make independent self-determined
decisions and provide for the well-being of its citizens--two
fundamental rights of any sovereign.
---------------------------------------------------------------------------
\1\ Indian Reorganization Act of 1934, 25 U.S.C. ch. 14, subch. V
Sec. 461 et seq.
The Department of Interior issued a decision on September 18, 2015
to take approximately 321 acres of land into trust on behalf of the
Mashpee Wampanoag Tribe of Massachusetts. A subsequent legal challenge
to the decision threatens tribal sovereignty and the Mashpee Wampanoag
Tribe's ability to make important decisions affecting its members. The
Mashpee Wampanoag Tribe Reservation Reaffirmation Act will provide
much-needed certainty regarding the status of the tribe's newly
restored lands and allow the tribe to go forward in providing necessary
---------------------------------------------------------------------------
services to tribal members.
We urge Congress to use its authority to restore Mashpee Wampanoag
Tribe's lands through the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act. Please feel free to contact me if you have questions
or need further information.
Sincerely,
Dante Desiderio,
Executive Director.
Narragansett Indian Tribe,
Charlestown, Rhode Island
March 26, 2019
Hon. David Cicilline,
Hon. Jim Langevin,
U.S. House of Representatives,
Washington, DC 20515.
Re: Mashpee Wampanoag Reservation Reaffirmation Act
Dear Congressmen:
The Narragansett Indian Tribe wrote to Congress last year, and
would like to take this opportunity to reiterate our strong support for
the Mashpee Wampanoag Reservation Reaffirmation Act (currently H.R.
312, formerly H.R. 5244).
This emergency legislation was crafted in an effort to prevent the
Mashpee Wampanoag Tribe from the threat of losing their reservation
lands. It also addresses the significant damage that has plagued the
Mashpee Wampanoag Tribe by commercial casino companies that have chosen
to challenge the status of the Wampanoag Tribe's reservation for no
other apparent reason than their own financial gain. The Wampanoag
Tribe has been forced to lay off workers and cut programs; with the
unfortunate truth being that more layoffs and program cuts are on the
horizon if their reservation cannot be protected. This has inevitably
become a moral issue for the United States; the entirety of Indian
Country is watching and collectively poses the question--Will the
United States of America honor its word to the Wampanoag Tribe and
Protect their reservation?
It should be noted that both the Wampanoag Tribe and this
respective Bill are strongly supported by the state government's with
closest proximity to the Tribe's Reservation; the Town of Mashpee and
the City of Taunton.
We urge you to vote in favor of H.R. 312.
I thank you for your time with this matter.
Respectfully,
Anthony Dean Stanton,
Chief Sachem.
TESTIMONY OF CHIEF SACHEM ANTHONY DEAN STANTON
NARRAGANSETT INDIAN TRIBE
``Indigenous Peoples Legislative Hearing'' on H.R. 312, H.R. 375 and
RESPECT ACT
April 3, 2019
On behalf of the more than 2,700 members of the Narragansett Indian
Tribe, I write to express our Tribe's support for two measures
introduced in the 116th Congress: H.R. 312, the ``Mashpee Wampanoag
Tribe Reservation Reaffirmation Act,'' and H.R. 375, a measure to
reaffirm the authority of the Secretary of the Interior to take land
into trust for Indian Tribes under the Indian Reorganization Act. The
Narragansett Indian Tribe also endorses Natural Resources Committee
Chairman Raul Grijalva's discussion draft measure, the ``Requirements,
Expectations, and Standard Procedures for Executive Consultation with
Tribes'' or the ``RESPECT Act,'' a measure to prescribe procedures for
effective consultation and coordination by Federal agencies with
federally recognized Indian Tribes concerning actions of the Federal
Government that impact Tribal lands and interests to ensure that
meaningful tribal input is an integral part of the Federal decision-
making process.
This Subcommittee, and the 116th Congress, must decide whether the
economic interests of the State of Rhode Island should dictate Federal
Indian policy for the Nation and the millions of American Indians and
Alaska Natives, most of whom live at or below the poverty level. In the
17th Century, the ancestors of the Mashpee Wampanoag Tribe and the
Narragansett Indian Tribe extended friendship and protection to the
European immigrants who struggled to survive on our lands. The roles of
their respective descendants are now reversed. We ask whether the
United States, in the 21st Century, will return the favor and protect
the descendants of the Mashpee Wampanoag and us, the Narragansett. We
are confident in the ultimate outcome. Dr. Martin Luther King once said
that the moral arc of the universe is long, but it bends toward
justice. The question is how many years will we and other Tribes have
to wait.
The history of the Narragansett Indian Tribe in what today is Rhode
Island is well established. Although we have existed in Rhode Island
for millennia, we regained Federal acknowledgement only in 1983, after
a century of effort, through the cumbersome Federal Acknowledgement
Process (FAP). It was the Narragansett that granted Roger Williams
asylum and safe haven as he fled from Plymouth and the Massachusetts
Bay colonies. With the assistance and protection of our Tribal
ancestors, Canonicus and Miantonomi, Williams was able to establish
Providence Plantations in 1636 as a haven for religious tolerance and
peaceful coexistence with our ancestors. Roger Williams, a minister and
theologian, advocated honorable dealings with our Tribe.
What would Roger Williams make of the current leaders of the State
of Rhode Island, their representatives in Congress, and the testimony
presented to the Subcommittee today on behalf of its Governor--opposing
the right of the Mashpee Wampanoag Tribe to retain in Federal trust a
321-acre Tribal homeland for their members in Taunton, Massachusetts,
and provide essential governmental services--for the stated reason that
Rhode Island claims a 100-mile economic zone of interest around its two
de facto State casinos in Lincoln and Newport, Rhode Island.
Those who lack empathy for the plight of others do not govern well.
They use tactics of divide and conquer and are forever pitting ``us''
against ``them.'' By ignoring the universal and unalienable right of
all people to ``life, liberty, and the pursuit of happiness,'' they
stand astride history and the unrelenting progress of a Nation and its
people to better themselves. It was true of the Civil Rights movement
and it is true of the latest ``Indian Wars'' over Carcieri, gaming and
other land-into trust issues.
It will take the leadership of the House Natural Resources
Committee, its Chairman, Ranking Member, and members, and the entire
Congress, to push aside those who would stifle and suppress the
aspirations of Native Americans to improve their condition. State
officials will bitterly fight, as they have done for decades, to keep
the economic competitive advantage they have gained at the expense of
Native Americans. The Mashpee Wampanoag Tribe are their latest victim.
There are 535 State representatives serving in Congress. All of them
are also Federal trustees who must honor the Nation's treaties and
Federal laws enacted for the benefit of Indian tribes. With unity and
courage, the Nation can do better for Indian tribes.
If Rhode Island prevails in defeating passage of H.R. 312, the
State, with just over one million people, will set back by a generation
the aspirations of millions of the American Indians and Alaska Natives
who seek community stability and economic development opportunities
that can only occur if Congress reaffirms, once and for all, that
Tribal trust lands are in fact trust lands and a Tribe's homeland that
the United States will defend and safeguard for generations. Tribal
trust lands allow federally recognized Indian Tribes to provide
essential government services to underserved and poverty-stricken
Tribal communities with Federal funds--services which often depend on
the trust status of the land.
Mashpee Wampanoag Vice Chairwoman Jessie Little Doe Baird
eloquently described the dire consequences her members face if the
trust status of their reservation is lost as a result of litigation
brought for the sole purpose of undermining the Tribe's sovereign
status and leaving Mashpee the only New England Indian Tribe without a
reservation.
Why is self-determination and self-governance so important to
Native people? As noted above, most Indian tribes struggle to provide
core governmental services to their members. We American Indians, by
any measure, fall well below our non-Indian fellow Americans in health
status and life expectancy, economic status, and living conditions
(housing, schools, drinking water and wastewater systems, broadband and
other utilities, law enforcement and public safety, hospitals and
clinics, and other essential services). Tribal lands, held in trust by
the United States, empowers tribes and afford us the opportunity to
establish infrastructure, a key requirement for promoting community
stability--which every people seek.
In other words, Tribal lands are an essential ingredient that
allows us to maintain and perpetuate cultural, social and religious
practices that help define us and give us our Tribal identity as a
separate and distinct people who wish to exercise self-determination.
It is the aspiration of all people to be free and independent.
This Committee need only look back to the 105th Congress in 1998
when it considered important amendments to the Indian Self-
Determination and Education Assistance Act (ISDEAA), Pub. L. 93-638, to
understand the importance of Tribal self-governance. The ISDEAA, first
enacted in 1975, was landmark legislation that ushered in the modern
era of Federal Indian law and the empowerment of Tribal nations by
allowing Tribes to step into the shoes of the Secretary of the Interior
and the Secretary of the Department of Health and Human Services to
plan, design and carry out Federal programs for Indians with funds
provided by the Federal Government. When doing so, the United States
fulfills its part of the contract between Tribes and the Federal
Government, in return for the transfer of millions of acres of our
aboriginal lands in return for the protection of the United States and
for services to our members who gave up a way of life.
With regard to the principles of Self-Governance, former Natural
Resources Committee Chairman George Miller stated:
The nature of Self-Governance is rooted in the inherent
sovereignty of American Indian and Alaska Native tribes. From
the founding of this Nation, Indian tribes and Alaska Native
villages have been recognized as `distinct, independent,
political communities' exercising powers of self-government,
not by virtue of any delegation of powers from the Federal
Government, but rather by virtue of their own innate
sovereignty. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515,
559 (1832). See also Santa Clara Pueblo v. Martinez, 436 U.S.
49, 55 (1978). The tribes' sovereignty predates the founding of
the United States and its Constitution and forms the backdrop
against which the United States has continually entered into
relations with Indian tribes and Native villages.
The present model of tribal Self-Governance arose out of the
federal policy of Indian Self-Determination. The modern Self-
Determination era began as Congress and contemporary
Administrations ended the dubious experiment of Termination
which was intended to end the federal trust responsibility to
Native Americans.
***
As a policy, Termination was a disaster. Recognizing this,
President Kennedy campaigned in 1960 promising the Indian
tribes that:
There would be no change in treaty or contractual
relationships without the consent of the tribes concerned.
There would be protection of the Indian land base, credit
assistance, and encouragement of tribal planning for economic
development.
***
President Richard Nixon's 1970 `Special Message on Indian
Affairs' also called for increased tribal self-determination:
This, then, must be the goal of any new national policy
toward the Indian people: to strengthen the Indian's sense of
autonomy without threatening his sense of community. We must
assure the Indian that he can assume control of his own life
without being separated involuntarily from the tribal group.
And we must make it clear that Indians can become independent
of Federal control without being cutoff from Federal concern
and Federal support.
House Rep. No. 105-765, 105th Cong., 2d Sess., Committee on Natural
Resources, to accompany H.R. 1833, Tribal Self-Governance Amendments of
1998, Additional Views of Ranking Member George Miller, pp. 54-55
(1998).
In concluding his support for the legislation that would become
Pub. L. 106-260, Act of Aug. 18, 2000, adding title V to the ISDEAA,
Congressman Miller noted:
Sometimes we need to look to the past in order to understand
our proper relationship with Indian tribes. More than two
centuries ago, Congress set forth what should be our guiding
principles. In 1789, Congress passed the Northwest Ordinance, a
set of seven articles intended to govern the addition of new
states to the Union. These articles served as a compact between
the people and the States . . . Article Three set for the
Nation's policy toward Indian tribes:
The utmost good faith shall always be observed toward the
Indians; their land and property shall never be taken away from
them without their consent * * * but laws founded in justice
and humanity shall from time to time be made, for preventing
wrongs being done to them * * *.
Id. p. 60. Emphasis supplied.
H.R. 312 is such a law--founded in justice and humanity--to prevent
further wrongs being done to the Mashpee Wampanoag Tribe. The
bipartisan measure, introduced by Congressman Keating of Massachusetts,
and supported by the Town of Mashpee, the City of Taunton,
Massachusetts, State legislators and the Massachusetts Congressional
delegation, would reaffirm, ratify and confirm the 2016 decision of the
Secretary of the Interior to take land into trust for the benefit of
the Mashpee Wampanoag Tribe. It would further protect the act of
Congress from legal challenge and, importantly, with limited exception,
extend all laws of general applicability to Indians and Indian nations
applicable to the Mashpee Wampanoag Tribe and their members.
As noted by Vice Chairwoman Jessie Little Doe Baird, H.R. 312 is
quite similar to Federal laws passed by Congress in recent years that
reaffirmed a Tribe's trust land holdings: S. 1603, the Gun Lake
Restoration Act, and H.R. 984, the Indian Tribes of Virginia
Recognition Act.
Just as the Northwest Ordinance permitted new states to enter the
Union on an ``equal footing'' with existing states, Congress extended
the same principle to tribes. In 1994, well before the ill-conceived
and wrongly decided 2009 U.S. Supreme Court Carcieri decision, Congress
amended the Indian Reorganization Act by enacting Pub. L. 103-263 to
prohibit the federal government and executive agencies from taking any
action that ``classifies, enhances, or diminishes the privileges and
immunities available to the Indian tribe relative to other federally
recognized tribes by virtue of their status as Indian tribes.'' 25
U.S.C. Sec. 5123(f). With the history of the Northwest Ordinance, it
was logical for the Federal Government to reaffirm the same principle
as to the Nation's 573 federally recognized Tribes.
The equal footing amendment to the IRA, sponsored by Senator John
McCain, a two-time chairman of the Senate Indian Affairs Committee,
``put an end to the discriminatory practices that had been developing''
within the Department of the Interior to classify tribes as either
``historic'' and ``entitled to the full panoply of inherent sovereign
powers not otherwise divested by treaty or congressional action'' or
``created'' and ``therefore possessing limited sovereign powers.'' Sen.
Rep. No. 112-166, 112th Cong., 2d Sess., May 17, 2012, Committee on
Indian Affairs, to accompany S. 676, amending the Act of June 18, 1934,
to reaffirm the authority of the Secretary of the Interior to take land
into trust for Indian tribes, p.12 (``Our amendment makes it clear that
it is and has always been Federal law and policy that Indian tribes
recognized by the Federal Government stand on an equal footing to each
other and to the Federal Government.'' 140 Cong. Rec. S6147 (daily ed.
May 19, 1994) (statement of Sen. Daniel K. Inouye).'' (emphasis in
original)). Id. at 12, fn. 71.
As noted by Dean Washburn, the ``central flaw in Carcieri's
reasoning is this: every tribe that is federally recognized today
necessarily existed when the IRA was enacted in 1934.'' The 1994 equal
footing amendment to the IRA reaffirmed its applicability to all
federally recognized tribes, not just those under Federal
superintendence as of 1934. Any tension between the IRA and the 1994
equal footing amendment to it, should have been resolved by the courts
to harmonize the legislation consistent with the expressed sentiment of
Congress that all tribes should be treated equal, and not divided into
``haves'' and ``have nots'' as is now the case.
For the above noted reason, we strongly urge this Subcommittee and
the Congress to also pass H.R. 375, Congressman Tom Cole's bipartisan
measure to reaffirm the authority of the Secretary of the Interior to
take land into trust for all Indian tribes for the simple reason that
``it is and has always been'' Federal law and policy to treat Tribes
equally.
As noted by Dean Washburn, Congressman Cole's measure would amend
the Indian Reorganization Act (IRA) in three important ways. First, it
strikes the phrase ``now under federal jurisdiction'' from the Act,
making it clear that the IRA applies to all federally recognized
tribes. Second, it makes the amendment retroactive to 1934, the
original date of the IRA, and ensures the proper authorization for all
Secretarial actions taken since and removes the threat of litigation.
Third, the bill amends the definitions in the IRA to make it clear that
the Interior Secretary has authority to take lands into trust for
Alaska Native villages, putting every Tribal Nation on an equal footing
as Congress has always intended.
H.R. 375 is especially important for us, the Narragansett. The
Carcieri decision was about us and our rights and privileges as a
federally recognized Tribe. We sought to place a 31-acre parcel in
trust for housing development under a jurisdictional framework separate
and distinct from that of our 1,800-acre trust settlement lands. Rhode
Island challenged our right to create a Tribal community under our
jurisdiction. Rhode Island fought to have our settlement act
interpreted as it wanted, in an unnatural manner that strained
credulity, rather than as prior Federal court decisions held which
granted us a degree of independence from State interference.
The State of Rhode Island now opposes Congressman Cole's measure
and argues that it ``undermines'' the Carcieri decision. We recall that
the State of Rhode Island reversed a Federal court decision in our
favor in 1996. The difference is that the late Senator John Chafee did
it through stealth and without the transparency of today's hearing. He
added a non-germane rider to the FY 1996 appropriations act, a must-
pass piece of legislation, days before the Senate vote that
unilaterally amended our 1978 settlement legislation, and reversed a
1994 decision of the United States Court of Appeals for the First
Circuit in State of Rhode Island v. Narragansett Indian Tribe, 19 F.3d
685 (1994). That decision held that we, like other federally recognized
Tribes, had the right to pursue economic development under the Indian
Gaming Regulatory Act (IGRA). There was no consultation between Rhode
Island and the Tribe before Senator Chafee acted. We had won an
important court victory against Rhode Island and the State was not
going to let it stand.
Here, Congressman Cole introduced legislation in the House,
Congressional hearings are being held, and there is ample public debate
by all concerned.
This is not the first Congress to introduce a ``clean fix'' to
reverse the Carcieri decision. Rhode Island has opposed any measure
that would include the Narragansett Indian Tribe. They would have the
Nation believe that we are somehow different than other Indian tribes
in the continental United States. We are not. Our history is the
history of the United States' treatment of its indigenous people. From
the King Phillip's War of 1675, and the Great Swamp Massacre of our
ancestors by colonial militia a century before the Declaration of
Independence, our aboriginal lands were stolen and diminished in size.
Rhode Island colonists, and then as State citizens, purchased our lands
at cheap prices. By the 19th Century, we had little more than a few
hundred acres in Washington County, Rhode Island. In the latter part of
the 19th Century, agents of the State began a lengthy and unrelenting
campaign to unilaterally and unlawfully de-tribalize the Narragansett
Tribe. The State passed legislation in violation of the Federal
Nonintercourse Act, a combination of acts passed by Congress in the
1790s to protect the inalienability of aboriginal title to Tribal lands
without the consent of Congress. In debt, our remaining Tribal lands,
with the exception of three acres of Indian church lands were sold. We
have fought ever since to regain recognition and the return of our
aboriginal lands. But we never stopped being Narragansett. In 1900, the
Tribe incorporated itself, and in 1934, a long house was built to hold
Tribal meetings.
In 1975, the same year as the ISDEAA was enacted, we brought suit
against the State of Rhode Island and private landowner, reasserting
our aboriginal title claim to our ancestral lands. Despite the State's
strong opposition, we prevailed and the State entered into settlement
negotiations. We were ignored by Rhode Island until we asserted our
rights. In 1983, we regained Federal recognition that we were and have
always been a separate and distinct Indian tribe. The State of Rhode
Island has fought us ever since. The State has opposed nearly all our
efforts to pursue economic development. Now the State opposes the
Mashpee Wampanoag Tribe because the Tribe, and its economic development
interests, pose a risk to the State's two casinos and the many
Massachusetts residents who travel to Rhode Island to gamble.
Rhode Island State officials have misrepresented the truth on
several occasions, including today's hearing. The Governor's
representative, in her written remarks, asserts that if H.R. 312 were
to become law, the federally recognized Tribes (plural) in Rhode Island
would argue for similar treatment. Rhode Island's two senators are also
on record making similar statements to their Senate colleagues. There
is only one federally recognized Indian Tribe in the State of Rhode
Island, the Narragansett.
In the 1994 First Circuit decision decided in our favor, the Court
found that: ``based on our understanding of the statutory interface, we
hold that the provisions of the Indian Gaming Regulatory Act apply with
full force to the lands in Rhode Island now held in Trust by the United
States for the Narragansett Indian Tribe.'' Based on that decision, the
then-Governor of Rhode Island negotiated the Tribe-State compact that
would permit us to construct and operate a Class III facility on Tribal
lands under IGRA. He required, however, that we submit to a State
referendum. Non-Indians wishing to open casinos in Rhode Island flooded
the ballot initiative.
With the prospect of multiple casinos, Rhode Islanders rejected
them all. We then opted to build and open a bingo hall (class II gaming
under IGRA) on our trust lands and were completing an environmental
assessment, as required by law. Senator Chafee had had enough. He
inserted a one-sentence amendment to our settlement legislation, the
Rhode Island Indian Claims Settlement Act, that stripped us of the
rights we had fought so hard to secure. Senator Chafee's amendment
read: ``For purposes of the Indian Gaming Regulatory Act (25 U.S.C.
2701 et seq.), settlement lands shall not be treated as Indian Lands.''
Senator McCain objected to this unilateral action by Senator Chafee. On
the Senate floor, Senator McCain rose and remarked:
Mr. President, I want to express my concern regarding an
opposition to Section 330 of the general provisions of the
Interior and related agencies portions of this Omnibus
Appropriations Bill because Section 330 would, in a
discriminatory fashion, dismantle the rights of one Indian
tribe to conduct gaming activities on its lands like all other
Indian tribes. Section 330 is specific to Rhode Island. It
would expressly deny the only federally recognized Indian tribe
in Rhode Island, the Narragansett Indian Tribe, the rights
other Indian Tribes have under the Indian Gaming Regulatory
Act. . . . I must say that Section 330 of this appropriations
bill is an . . . unfair end run around the ongoing work of the
authorizing committee [Senate Indian Affairs Committee].
Section 330 would substantially amend the authorizing
legislation on an appropriation measure without the benefit of
any legislative hearing, without any contribution by the
authorizing committee of jurisdiction and without any public
debate by those most affected--the Narragansett Indian Tribe of
Rhode Island.
That was 23 years ago. We know all too well what happens when State
and Federal officials exercise power against Indian Tribes without
consultation or any public debate and with indifference to the
aspirations of Native people to provide for their communities.
John Adams famously remarked:
``Facts are stubborn things; and whatever may be our wishes,
our inclinations, or the dictates of our passions, they cannot
alter the state of facts and evidence.''
The weight of public opinion is clear. The Carcieri decision was
wrongly decided in 2009 and upended 70 years of Federal Indian policy
that sought to reverse the destructive effects of the Indian Allotment
Act that caused the loss of more than 90 million acres of Indian lands
lead to great poverty and suffering for the Nation's first Americans--
suffering which continues mostly unabated to this day. We Narragansett
were among the Indian Tribes that lost our aboriginal lands. We are no
different than other federally recognized Tribes who fight a never-
ending battle to hold our Tribal communities together and maintain our
cultural identity. It is long past time that the Carcieri decision be
consigned to the dust bin of history where it belongs.
In conclusion, we enthusiastically endorse and support H.R. 312,
H.R. 375 and the proposed RESPECT Act that would codify as Federal law
the principles of good governance; that the United States and the
Indian nations should engage in meaningful government-to-government
consultation concerning matters that can have profound impacts on
Tribal communities.
Thank you for the opportunity to present testimony to the
Subcommittee.
______
National Congress of American Indians,
Washington, DC
May 7, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of the National Congress of American Indians, the oldest
and largest national organization representing the collective interests
of American Indian and Alaska Natives tribes and their citizens, we
respectfully request that you take all actions necessary to ensure that
the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244
and S. 2628) is enacted as soon as possible. This is an urgent matter,
as the Mashpee Tribe's reservation is in danger of being taken out of
trust, despite strong local government support for its creation.
This threat to the Mashpee Tribe's federally protected lands,
established under the authority of the Indian Reorganization Act, is
the result of litigation brought by a small group of individuals,
challenging the Tribe's reservation on technical legal grounds. The
Mashpee Tribe, like all other federally recognized tribes, is entitled
to a federally protected reservation where it can exercise its
sovereignty, protect its culture, and engage in self-determination.
Further, on June 6, 2018, NCAI passed a motion by the full body of
its 2018 Midyear Conference, stating its complete support for the
Mashpee Tribe and calling upon Congress to pass the Mashpee Wampanoag
Tribe Reservation Reaffirmation Act. The failure of Congress to act in
this instance could result in the Mashpee Tribe's reservation being
disestablished. This would be the first time in modern history that a
reservation is disestablished, and would leave the Tribe perpetually
landless. For this reason, it is imperative that Congress exercise its
authority to provide the Tribe a land base and an opportunity to
effectively self-govern and prosper.
In closing, thank you for your consideration of this important
issue. If you have any further questions or comments, please feel free
to reach out to Derrick Beetso, NCAI Senior Counsel, at XXXXXXXXXX.
Thanks again.
Sincerely,
Jacqueline Pata,
NCAI Executive Director.
______
TESTIMONY OF THE NATIONAL CONGRESS OF AMERICAN INDIANS
Hearing on H.R. 375
April 18, 2019
On behalf of the National Congress of American Indians (NCAI), the
oldest and largest national organization made up of American Indian and
Alaska Native tribal governments and their citizens, I write to submit
testimony on H.R. 375--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.
H.R. 375 is legislation that would protect existing Indian trust
lands and restore certainty and fairness to the tribal land into trust
process which has been impaired by the Supreme Court's decision
Carcieri v. Salazar, 555 U.S. 379 (2009). As demonstrated below,
Carcieri has effectively created two classes of tribal nations, and has
overburdened tribal, federal, and state resources by generating
unnecessary conflict over the restoration and retention of tribal
homelands and consequently impeded economic development. Accordingly,
NCAI strongly urges Congress to end this turmoil by enacting a
congressional fix to the Indian Reorganization Act (IRA) which
reaffirms the Secretary of the Interior's (Secretary) authority to
restore tribal homelands for all federally recognized tribal nations.
I. Overview on Congress' Intent in Passing the IRA & the Carcieri
Problem
Tribal nations are the sovereign beneficiaries of a unique
fiduciary relationship with the Federal Government, and Congress has
plenary and exclusive authority to legislate over Indian affairs.
In exercise of this plenary authority, in 1934 Congress repudiated
its policy of forced assimilation of tribal people and allotment of
their lands under the General Allotment Act of 1887 by enacting the
IRA. By that time, federal allotment policies had resulted in the
taking and loss of 86 million acres of tribal homelands. In doing so,
such policies severely fractionated treaty-bargained for Indian
Reservations, resulting in the mismanagement of tribal interests, the
``checker-boarding'' of Indian lands, and the jurisdictional patchwork
surrounding many residents of Indian country today.
The IRA ended this destructive policy by setting forth a process to
restore and protect tribal homelands in order to provide tribal nations
with the tools to succeed as self-governing bodies. To accomplish this
purpose, 25 U.S.C. Sec. 5108 authorized the Secretary to acquire lands
``within or without existing reservations'' for the ``purpose of
providing land for Indians.'' For over 75 years, the United States
Department of the Interior (Interior) consistently interpreted the IRA
as authorizing the Secretary to acquire land in trust status for any
tribal nation--so long as that nation was federally recognized at the
time of the trust application.
In Carcieri the Supreme Court departed from this long-standing
precedent and determined that the IRA land into trust process requires
tribal nations to demonstrate that they were ``under federal
jurisdiction'' in 1934. However, the Carcieri decision did not explain
how ``under federal jurisdiction'' should be defined. To that end, in
2014, the implementing agency, Interior, provided interpretive guidance
in the form of a Solicitor's Opinion M-37029.
M-37029 introduced the following two-part agency analysis to
address the ``under federal jurisdiction'' question presented by the
Carcieri decision: (1) whether there is a sufficient showing in a
tribal nation's history that during or prior to 1934, the tribal nation
was under federal jurisdiction; and (2) whether the tribal nation's
jurisdictional status remained intact in 1934.
While M-37029 provides some guidance for Interior's evaluation of
land-into-trust applications, it does not address the resulting
disparate treatment of tribal nations, and did not stem the tide of
post-Carcieri litigation.
II. The Carcieri Decision Has Effectively Created Two Classes of Tribal
Nations
Effectively, the Carcieri decision has resulted in two classes of
tribal nations in violation of P.L. 103-263.\1\ Those determined to
have been under federal jurisdiction in 1934 and those determined not
to have been under federal jurisdiction in 1934. Simply put, Congress'
intent--to provide the necessary tools for tribes to effectively self-
govern--is not wholly realized by all tribal nations. Until Congress
acts, there are some tribes that Interior is simply unable to acquire
land for. These tribes' lands, while owned in fee simple by a tribal
nation, are unable to realize their full potential as economic drivers
and residential homelands for tribal citizens. This is contrary to
Congress' intent and results in certain tribes having less
opportunities with respect to developing a sufficient tax base,
providing critical tribal services for their citizens, or protecting
and preserving critical lands and natural resources.
---------------------------------------------------------------------------
\1\ See P.L. 103-263, 108 Stat 707 (1994 providing that
``[d]epartments or agencies of the United States shall not promulgate
any regulation or make any decision or determination pursuant to the
Act of June 18, 1934 (25 U.S.C. 461 et seq., 48 Stat. 984) as amended,
or any other Act of Congress, with respect to a federally recognized
Indian tribe that classifies, enhances, or diminishes the privileges
and immunities available to the Indian tribe relative to other
federally recognized tribes by virtue of their status as Indian
tribes.'').
---------------------------------------------------------------------------
III. The Carcieri Decision Has Overburdened Governmental Resources
The uptick in litigation elicited by the Carcieri decision has
caused irrevocable damage to affected communities. Within three years
of the decision in 2013, then Assistant Secretary of Indian Affairs,
Kevin Washburn testified that the federal government was ``up to [its]
eyeballs in litigation on these matters.'' \2\ During that same
hearing, entitled Carcieri: Bringing Certainty to Trust Land
Acquisitions, Washburn also testified that:
---------------------------------------------------------------------------
\2\ ``Carcieri: Bringing Certainty to Trust Land Acquisitions''
testimony by former Assistant Secretary of Indian Affairs, Kevin
Washburn, November 20, 2013. https://www.govinfo.gov/content/pkg/CHRG-
113shrg87133/html/CHRG-113shrg87133.htm.
[Interior] is . . . forced to expend resources both before and
during litigation to defend against such spurious claims--
resources that are needed for social services, protection of
natural resources and implementation of treaty rights. A
straightforward Carcieri fix would be a tremendous economic
boost to Indian country, at no cost to the Federal
government.\3\
---------------------------------------------------------------------------
\3\ Id.
To Washburn's point, presently tribal nations are forced to spend
scarce resources through the following process to acquire homelands:
(1) purchase or otherwise acquire land in fee; (2) commence the labor
intensive and lengthy fee-into-trust administrative application
process; (3) subsequently defend against Carcieri attacks in the
district and appellate courts; and (4) occasionally--in the worst
scenarios--tribal nations are forced to seek specific land acquisition
legislation through Congress.
Each of these steps comes with an enormous monetary and political
cost to tribal nations. In addition to these costs, tribal communities
bear the lost opportunity costs of foregoing expenses, both internally
and at the federal level as noted in Washburn's testimony above, on
critical service needs such as education, public safety, housing, and
other needs, in order to support the expense of a fee to trust
application.
At taxpayer's expense, the federal government also pays the price
at the executive, judicial, and congressional branches. At the
executive level, Interior expended many workhours in developing and
implementing M-37029's two-step analysis, which now requires Interior
to engage in a time-intensive analysis, sometimes taking years to
complete, on whether a tribal nation was under federal jurisdiction in
1934. Assuming a favorable decision is reached on behalf of the tribe,
it often then gets challenged through litigation where Interior and the
Department of Justice, in coordination with the affected tribal nation,
then expend years defending the trust acquisition in fulfillment of the
federal trust responsibility. Further, burdening Interior resources has
created ancillary harm for tribal nations that were under federal
jurisdiction in 1934 as it has slowed the land into-trust-process.
Federal judicial resources are concurrently stretched as Carcieri
cases crowd their dockets for years and mandate painstaking reviews of
lengthy administrative records involving history and genealogy. This
drain on the federal judiciary has led a D.C. Circuit judge to exclaim
``[e]nough is enough!'' in a case involving a 16-year-old land into
trust acquisition that was aggravated by post-Carcieri litigation.\4\
---------------------------------------------------------------------------
\4\ To re-affirm an existing trust acquisition for the Match-E-Be-
Nash-She-Wish Band of Pottawatomi Indians, in 2014 Congress enacted the
``Gun Lake Trust Land Reaffirmation Act,'' Pub. L. 113-179, 128 Stat.
1913.
---------------------------------------------------------------------------
Likewise, Congress's resources have been expended both in the
consideration of 15 Carcieri fixes for over a decade and through tribe-
specific bills which are the final resort for acquisition and re-
affirmation of tribal homelands.
Lastly, states and local governments have also exhausted tax-payer
resources on unsuccessful Carcieri litigation. For example, in a 15-
year long case that was exacerbated by post-Carcieri litigation, a
rural California county with a 20% poverty rate expended $850,000 \5\
to oppose a Interior tribal trust acquisition.
---------------------------------------------------------------------------
\5\ ``Year in Review,'' Chico News and Review, December 18, 2018,
https://issuu.com/news_review/docs/c-2018-12-27.
---------------------------------------------------------------------------
IV. Tribal Homelands are Critical to the Health, Safety, and Welfare of
Tribal Communities
The IRA has enabled tribal nations to restore their homelands
through the land into trust process and has been vital to tribal self-
governance, including greater economic self-sufficiency. Through the
IRA process, tribal nations are better able to deliver essential
government services through the construction of schools, health
facilities, Head Start centers, elder and veteran centers, housing, and
justice facilities. Restoration of homelands has also enabled tribal
nations to protect their cultures and traditions and aligns with
Congress and the Administration's goal of supporting tribal self-
determination and self-sufficiency.
Tribal trust acquisitions further aid tribal economic development
by generating public and private partnerships that lead to increased
jobs and services for tribal and non-tribal communities. As a result,
in rural counties tribal nations are often the largest employers and
health service providers for the entire community.\6\
---------------------------------------------------------------------------
\6\ See, e.g., Oregon Secretary of State, Oregon Blue Book, https:/
/sos.oregon.gov/blue-book/Pages/national-tribes-intro.aspx
(acknowledging that tribal governments are some of the ``largest
employers in their counties--generating employment for tax-paying
employees, benefiting local communities and the entire state.'');
Northwest Portland Indian Health Board (Coeur D'Alene profile showcases
a tribal ambulatory health care facility, on trust land, that ``employs
170 staff and serves 6,000 native and non-native patients.'') http://
www.npaihb.org/member-tribes/coeur-dalene-tribe/.
---------------------------------------------------------------------------
V. Conclusion
For a decade, NCAI has requested that Congress address the Carcieri
problem by (1) restoring the Secretary's authority under the IRA to
take land into trust for all federally recognized tribal nations; and
(2) reaffirming existing Indian trust lands. This common sense approach
is wholly consistent with the IRA's intent to rebuild tribal homelands,
governments and economies and has the demonstrated potential to benefit
all tribal nations and their surrounding communities. Equally, a clean
fix would end the confusion and intergovernmental disputes that
resulted from the Supreme Court's ill-advised decision a decade ago in
Carcieri. We thank you in advance for consideration of this testimony,
and look forward to engaging on solutions to this critical issue in the
116th Congress.
NATIONAL INDIAN GAMING ASSOCIATION
RESOLUTION 05-LAS-BOD-4-20-18
TITLE: To Support H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act.
WHEREAS, the National Indian Gaming Association (NIGA) is an
intertribal association of 184 federally recognized Indian Tribes
established to support Indian gaming and defend Indian sovereignty; and
WHEREAS, Indian Tribes are sovereigns that pre-date the United States,
with prior and treaty protected rights to self-government and to our
Indian lands, and
WHEREAS, the Constitution of the United States, through the Treaty,
Commerce, and Apportionment Clauses and the 14th Amendment, recognizes
the sovereign status of Indian Tribes as Native nations established
prior to the United States; and
WHEREAS, before the United States, Indian nations were independent
sovereigns with complete authority over our lands and our citizens; and
WHEREAS, on September 18, 2015 the Department of the Interior issued a
decision to accept approximately 321 acres of land into trust for the
Mashpee Wampanoag Tribe of Massachusetts as the Tribe's initial
reservation, and within the Tribe's historical territory; and
WHEREAS, the Department's decision has since been subject to challenge,
thereby threatening the Tribe's newly established trust lands, its
ability to acquire lost homelands, and more broadly, its people and its
sovereignty; and
WHEREAS, bipartisan legislation, the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628) has been
introduced in Congress, which reaffirms the Department's trust
acquisition for the Mashpee Tribe.
NOW THEREFORE BE IT RESOLVED, NIGA hereby calls on Congress to enact
H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act; and
BE IT FURTHER RESOLVED that this resolution shall be the policy of NIGA
until it is withdrawn or modified by subsequent resolution.
CERTIFICATION
The foregoing resolution was adopted by the Board of Directors at a
meeting of the National Indian Gaming Association, held at the Westgate
Las Vegas Resort & Casino, 3000 Paradise Rd, on April 20, 2018, Las
Vegas, NV, with a quorum present.
Ernest L. Stevens, Jr.,
Chairman Paulette Jordan, Secretary
Native American Rights Fund,
Boulder, Colorado
May 11, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
The Native American Rights Fund respectfully urges the Senate
Indian Affairs Committee, and the House Natural Resources Committee and
its Subcommittee on Indian and Alaska Native Affairs, to do everything
possible to ensure swift enactment of the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe's
reservation--which was established with the strong support of
surrounding local governments--is threatened by litigation brought by a
NIMBY group based on technical legal issues.
We urge Congress to use its authority to deal with Indian Tribes to
ensure that the Mashpee Tribe is not forever rendered perpetually
landless by enacting the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act.
Sincerely,
John E. Echohawk,
Executive Director.
July 8, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244/S.
2628)
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
We, the undersigned, request your support for the Mashpee Wampanoag
Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628) and ask
that you act swiftly to move this bill through the legislative process
in your respective committees in order to ensure its passage in the
House and Senate.
The Mashpee Indian Tribe, a federally recognized tribe with a
history, culture and government that pre-dates the founding of the
United States--the Tribe that helped the Pilgrims--eventually lost all
of its historical lands because of the federal government's failure to
protect those lands from encroachment. In 2015, with overwhelming local
support, the Department of the Interior finally rectified this
historical injustice and established Mashpee's first reservation. The
status of Mashpee's reservation is now threatened by technical legal
issues. This could result in the disestablishment of Mashpee's
reservation and could return the Tribe to landlessness.
The Mashpee Wampanoag Tribe Reservation Reaffirmation Act reaffirms
the status of the Mashpee Reservation and will allow the Tribe to
continue to provide the cultural, economic, and public services to its
members that are the essential ingredients of its self-determination as
a Tribe. Passage of the legislation also will bring thousands of jobs
and millions of dollars of related infrastructure and community
development to Taunton and surrounding communities, as part of the
Tribe's economic development efforts.
We respectfully request that Congress enact the Mashpee Wampanoag
Tribe Reservation Reaffirmation Act to ensure that the Mashpee
Reservation is protected and that the Tribe is not made landless. Thank
you for your consideration of this request.
Sincerely,
Signed by 185 Residents of the New England Area.
Nez Perce Tribal Executive Committee,
Lapwai, Idaho
November 6, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244/S.
2628)
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
The Nez Perce Tribe requests your support of the Mashpee Wampanoag
Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628) and asks
that you act swiftly to move this bill through the legislative process
in your respective committees in order to ensure its passage in the
House and Senate.
In 2015, pursuant to the Indian Reorganization Act and with strong
support from local governments and the state of Massachusetts, the
Department of the Interior (Department) took into trust lands located
within the Mashpee Wampanoag Tribe's (Mashpee's) traditional homeland
and proclaimed those lands as the Mashpee Reservation. Unfortunately,
despite strong support of the surrounding community, the existence of
the Reservation is threatened by litigation based on technical legal
issues initiated by a small group of local residents. In May 2017, the
Department withdrew from the litigation and is no longer defending the
status of the Mashpee Reservation.
On September 7, 2018, the Department issued a decision refusing to
reaffirm its own authority to confirm the status of the Mashpee
Reservation opening the door for the Reservation to be taken out of
trust and disestablished.
As you know, land is fundamental to tribal self-determination--it
provides the means for tribes to protect their cultures and to engage
in desperately needed economic development. The Mashpee Wampanoag Tribe
Reservation Reaffirmation Act confirms the Mashpee Reservation's status
and allows the Tribe to continue providing cultural, economic, and
public services to its members that are the essential ingredients of
its self-determination as a Tribe.
The Nez Perce Tribe respectfully requests that Congress enact the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act to ensure that
the Mashpee Reservation is protected and that the Tribe is not made
landless. Thank you for your consideration of this request.
Sincerely,
Shannon F. Wheeler,
Chairman.
Oneida Nation,
Oneida Business Committee,
Oneida, WI
June 8, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
I am writing on behalf of my Tribe to respectfully request that you
take all necessary action to ensure that the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as
soon as possible. This is an urgent matter, as the Mashpee Tribe's
reservation is in danger of being taken out of trust.
This threat to the Mashpee Tribe's federally protected lands,
established under the authority of the Indian Reorganization Act, is
the result of litigation brought by a small group of individuals,
challenging the Tribe's reservation on technical legal grounds. This
would result in the Mashpee Tribe becoming perpetually landless.
Congress must exercise its plenary authority to ensure that the Mashpee
Tribe and its reservation land is protected. The Mashpee Tribe, like
all other federally recognized tribes, should be entitled to a
federally protected reservation where it can exercise its sovereignty,
protect its culture, and engage in self-determination. Please enact the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act.
Sincerely,
Tehassi Hill,
Chairman.
Otoe Missouria Tribe of Indians,
Red Rock, OK
June 5, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
I am writing on behalf of my Tribe to respectfully request that you
take all necessary action to ensure that the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as
soon as possible. This is an urgent matter, as the Mashpee Tribe's
reservation is in danger of being taken out of trust, despite strong
local government support for its creation.
This threat to the Mashpee Tribe's federally protected lands,
established under the authority of the Indian Reorganization Act, is
the result of litigation brought by a small group of individuals,
challenging the Tribe's reservation on technical legal grounds. This
would be the first time in modern history that a reservation is
disestablished, and would result in the Mashpee Tribe becoming
perpetually landless. Congress must exercise its plenary authority to
ensure that the Mashpee Tribe and its reservation land is protected.
The Mashpee Tribe, like all other federally recognized tribes, should
be entitled to a federally protected reservation where it can exercise
its sovereignty, protect its culture, and engage in self-determination.
Please enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act.
Sincerely,
John Shotton,
Tribal Chairman.
Pascua Yaqui Tribe,
Office of the Chairman,
Tucson, Arizona
May 1, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of the Pascua Yaqui Tribe, we respectfully urge that the
Senate Indian Affairs Committee, and the House Natural Resources
Committee and its Subcommittee on Indian and Alaska Native Affairs, do
everything possible to ensure swift enactment of the Mashpee Wampanoag
Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe is
threatened by litigation challenging the status of its reservation
based on technical legal issues.
Pascua Yaqui was restored to federal recognition in 1978.\1\ In
1991, we faced a crisis similar to the one Mashpee faces now. In the
process of reviewing amendments to our constitution, the Department of
the Interior purported to determine that Pascua Yaqui was a ``created''
tribe rather than an ``historic'' tribe for the purposes of the Indian
Reorganization Act of 1934 (IRA), and as a result Interior asserted
that we did not have the inherent authority to regulate law and order
on our reservation. Congress did the right thing to ensure that Pascua
Yaqui would be treated fairly when in 1994 Congress passed an amendment
to the IRA that clarified that all federally recognized tribes must be
treated equally under the IRA,\2\ thereby putting an end to the
Department's practice of creating different classifications of
federally recognized tribes. As a federally recognized tribe, Mashpee
must also be treated equally under the IRA with all other federally
recognized tribes.
---------------------------------------------------------------------------
\1\ Public Law No. 95-375, 97 Stat. 712 (1978).
\2\ Public Law No. 103-263, 108 Stat. 707 (1994).
We urge Congress to enact the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act will ensure that the Mashpee Tribe receives equal
treatment under the IRA and by so doing, will protect the Tribe from
being rendered perpetually landless. Enactment of the legislation is
consistent with the federal government's trust responsibility toward
Mashpee, and we urge you to do whatever you can to ensure that the
---------------------------------------------------------------------------
proposed legislation becomes law.
Sincerely,
Robert Valencia,
Chairman.
Prairie Island Indian Community,
Welch, MN
April 16, 2019
Hon. Raul Grijalva,
Hon. Rob Bishop,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. Ruben Gallego,
Hon. Paul Cook,
House Subcommittee on Indigenous Peoples of the United States,
Washington, DC 20515.
Re: The Prairie Island Indian Community Urges Passage of H.R. 312, the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act
Dear Chairman Grijalva, Ranking Member Bishop, Chairman Gallego,
and Ranking Member Cook:
On behalf of the Prairie Island Indian Community, a federally
recognized Tribe located on the banks of the Mississippi River in
Welch, Minnesota, I write to express our concerns and to request your
unequivocal support for swift passage of the Mashpee Wampanoag
Reservation Reaffirmation Act. We believe that the establishment of the
Mashpee Wampanoag Reservation was very long overdue and that this
legislation is needed to protect their Reservation as well as the
Tribal Sovereignty of the Tribal Nations in the United States of
America. This bipartisan bill is broadly supported in Indian Country
and is urgently needed in order to ensure that the Mashpee Reservation,
located within the Mashpee Tribe's traditional homelands, is not
disestablished due to a technicality.
The Mashpee Reservation was established in accordance with the
Indian Reorganization Act and with the strong support of the State and
the local community. However, this Reservation is now being threatened
by litigation that could result in the Tribe's land being taken out of
trust--something that the federal government has not allowed to happen
since the Termination Era in the 1950's.
Like the Mashapee Wampanoag, the overall goal of the Prairie Island
Indian Community is to protect its members and to support the long-term
health and self-sufficiency of the Tribe in the face of overwhelming
odds. In 1938, Lock and Dam No. 3 was placed in operation by the Army
Corps of Engineers on the Upper Mississippi River, less than three
miles downstream from the Prairie Island Reservation. It resulted in a
permanent and unauthorized taking of our Reservation land. Lock and Dam
No. 3 also regularly overflows and as a result severe flooding of the
Reservation takes place seasonally.
In 1973, without consultation, the Prairie Island Nuclear
Generating Plant (PINGP) was then placed a mere 600 yards from our
land. Currently, forty-four dry casks of spent nuclear fuel are also
stored in close proximity to Tribal homes, our church, our learning
center, the Tribe's community center and Tribal businesses. No other
human beings in this country live closer to nuclear power plant and
spent-fuel storage. The Nuclear Regulatory Commission (NRC) has
licensed the storage of an additional fifty-four dry casks of spent
nuclear fuel at the plant by 2034. Our community is located within the
Plume Exposure Pathway Emergency Planning Zone for the nuclear plant,
an area with a higher risk of exposure or evacuation in the event of an
accident.
Finally to further complicate the situation, there is only one
reliable road leading on and off of our Reservation, and this road is
often blocked by railroad traffic carrying a variety of freight,
including highly volatile Bakken crude oil.
Because of the circumstances we face, we must look elsewhere for
safe land. The Mashpee Wampanoag decision causes great concern to our
community as it conveys this administration's view on fee-to-trust
transfers for Native American Tribes that desperately need it are not a
priority.
We believe that the decision made by the Department of Interior
severely affects the Mashpee Wampanoag's Tribal Sovereignty and
restricts their ability for proper self-governance. Their ability for
further economic development, which the Tribe relies on to fund many
functions of their government, will without a doubt be affected and
therefore the many social service programs the Tribe provides to its
citizens will suffer. As was clear from the Mashpee Tribe's testimony
before the House Natural Resources Committee on April 3rd, 2019, the
quality of life for the Tribe and its citizens has been significantly
affected. The uncertain status of the Reservation has caused great harm
to programs such as, elder services and addiction treatment services,
and has been forced to lay off much of its Tribal government work
force. For this reason we join so many other voices from Indian Country
and around the United States to respectfully urge that Congress fulfill
its trust responsibility to the Mashpee Tribe by enacting the Mashpee
Wampanoag Reservation Reaffirmation Act as soon as possible.
The Prairie Island Indian Community would like to thank you for the
excellent work that you do, and are pleased with your interest in
helping, not only the Mashpee Wampanoag Tribe, but Tribal Nations
across the country. If you have any questions, please do not hesitate
to contact me directly, or have your staff contact our Government
Relations Specialist, Cody Whitebear, at telephone number XXX-XXX-XXXX.
Sincerely,
Shelley Buck,
President.
______
Pyramid Lake Paiute Tribe,
Nixon, Nevada
June 5, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of the Pyramid Lake Paiute Tribe, we respectfully urge
that the Senate Indian Affairs Committee, and the House Natural
Resources Committee and its Subcommittee on Indian and Alaska Native
Affairs, do everything possible to ensure swift enactment of the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S.
2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe's
reservation--which was established with the strong support of
surrounding local governments--is threatened by litigation brought by a
NIMBY group based on technical legal issues. We urge Congress to use
its plenary authority to ensure that the Mashpee Tribe is not forever
rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act.
Sincerely,
Vinton Hawley,
National Indian Health Board, Chairman
HHS, Secretary's Tribal Advisory Committee, Member
ROCKY MOUNTAIN TRIBAL LEADERS COUNCIL
RESOLUTION #20-June-2018-2
A RESOLUTION TO SUPPORT H.R. 5244 AND S. 2628, THE MASHPEE WAMPANOAG
TRIBE RESERVATION REAFFIRMATION ACT
WHEREAS, the Rocky Mountain Tribal Leaders Council (TLC) has been
created for the express purpose of providing its member Tribes with a
unified voice and a collective organization to address issues of
concern to the Tribes and Indian people; and
WHEREAS, the Board of Directors of the Tribal Leaders Council consists
of duly elected Tribal Chairs, Presidents and Council Members who are
fully authorized to represent their respective Tribes; and
WHEREAS, as a manifestation of their solemn duty, the Tribal
governments actively engage in policy formation on any matters that
affect the Tribes and reservations; and
WHEREAS, the governments of the various Native American nations have
exercised full sovereign authority since time immemorial, including
over their separate territories, lands, sacred grounds, and natural
resources, including clean and fresh water; and
WHEREAS, Indian Tribes are sovereigns that pre-date the United States,
with prior and treaty protected rights to self-government and to our
Indian lands; and
WHEREAS, the Constitution of the United States, through the Treaty,
Commerce, and Apportionment Clauses and the 14th Amendment, recognizes
the sovereign status of Indian Tribes as Native nations established
prior to the United States; and
WHEREAS, before the United States, Native nations were independent
sovereigns with complete authority over our lands and our citizens; and
WHEREAS, on September 18, 2015 the Department of the Interior issued a
decision to accept approximately 321 acres of land into trust for the
Mashpee Wampanoag Tribe of Massachusetts as the Tribe's initial
reservation, and within the Tribe's historical territory; and
WHEREAS, the Department's decision has since been subject to challenge,
thereby threatening the Tribe's only trust land and more broadly, its
people and its sovereignty; and
WHEREAS, bipartisan legislation, the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628), has been
introduced in Congress to reaffirm the Department's trust acquisition
for the Mashpee Tribe and to prevent the Tribe from once again being
made landless.
NOW THEREFORE BE IT RESOLVED, that the Rocky Mountain Tribal Leadership
Council hereby calls on Congress to enact H.R. 5244 and S. 2628, the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act.
CERTIFICATION
We, the undersigned, as the Chair and the Secretary of the Tribal
Leaders Council, do hereby certify that the foregoing Resolution was
duly presented and approved unanimously at an official Board Meeting of
the Rocky Mountain Tribal Leaders Council, which was held on the 7th
day of June in Billings, Montana with 9 member Tribes present to
constitute a Quorum.
Alvin Not Afraid Jr., Gerald Gray,
Chairman--Tribal Leaders
Council Secretary--Tribal Leaders Council
San Carlos Apache Tribe,
San Carlos, Arizona
May 9, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of the 16,500 members of the San Carlos Apache Tribe (the
``Tribe''), I respectfully urge that the Senate Indian Affairs
Committee, and the House Natural Resources Committee and its
Subcommittee on Indian and Alaska Native Affairs, do everything
possible to ensure swift enactment of the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee
Wampanoag Reservation--which was established with the strong support of
surrounding local governments--is threatened by litigation brought by a
group of individual citizens opposed to tribal sovereignty proclaims
that the Mashpee Wampanoag reservation should not be in their back yard
based on technical legal issues.
Reservations form a core component of tribal sovereignty, cultural
identity and the foundation of a tribe's economy. All tribes have an
interest in protecting our reservations. All tribes have an interest in
reacquiring our aboriginal territories, our ancestral homelands. A
threat to one reservation is a threat to all reservations. Any threat
to the restoration of a tribe's land base, is a threat to all tribes.
As our partner in the preservation of tribal reservations and
aboriginal territories, the federal government has a solemn duty borne
out of its trust responsibility to all tribes to prioritize the
restoration of our tribal land bases. However, this NIMBY action
threatens the ability of the Mashpee Wampanoag Tribe to rebuild its
economy and provide essential government services to its members--the
fundamental goal of the land-into-trust process. The Mashpee Wampanoag
Tribe Reservation Reaffirmation Act simply provides legal certainty to
the status of the Tribe's trust lands, allowing their efforts to move
forward.
We urge Congress to use its plenary authority to ensure that the
Mashpee Tribe is not forever rendered perpetually landless by enacting
the Mashpee Wampanoag Tribe Reservation Reaffirmation Act.
As we say in our Apache language, Ahi'yi'e, thank you for your
support in this critically important matter.
Sincerely,
Terry Rambler,
Chairman.
SHINNECOCK INDIAN NATION,
Shinnecock Indian Territory,
Southampton, New York
July 13, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
I am writing on behalf of my tribe, the Shinnecock Indian Nation,
to respectfully request that you take all necessary action to ensure
that the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
5244 and S. 2628) is enacted as soon as possible. This is an urgent
matter, as the Mashpee Tribe's reservation is in danger of being taken
out of trust, despite strong local government support for its creation.
This threat to the Mashpee Tribe's federally protected lands,
established under the authority of the Indian Reorganization Act, is
the result of litigation brought by a small group of individuals,
challenging the Tribe's reservation on technical legal grounds. This
would be the first time in modern history that a reservation is
disestablished, and would result in the Mashpee Tribe becoming
perpetually landless. Congress must exercise its plenary authority to
ensure that the Mashpee Tribe and its reservation land is protected.
As another Indian Nation from the Northeast, we stand united with
the Mashpee Wampanoag in the fight to protect their historic lands. As
you are aware, tribes in the Northeast endured the first contact with
settlers and have the longest recorded history of all Indian Nations.
As such, we personally recognize the immense tribulations the Mashpee
Wampanoag have faced and the importance for its reservation lands to
remain protected.
The Mashpee Tribe, like all other federally recognized tribes,
should be entitled to a federally protected reservation where it can
exercise its sovereignty, protect its culture, and engage in self-
determination. Please enact the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act.
Respectfully,
Charles K. Smith II, Donald Williams Jr.,
Chairman, Council of
Trustees Sachem, Council of Trustees
Spirit Lake Tribe,
Fort Totten, ND
June 7, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
I am writing on behalf of my Tribe to respectfully request that you
take all necessary action to ensure that the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as
soon as possible. This is an urgent matter, as the Mashpee Tribe's
reservation is in danger of being taken out of trust, despite strong
local government support for its creation.
This threat to the Mashpee Tribe's federally protected lands,
established under the authority of the Indian Reorganization Act, is
the result of litigation brought by a small group of individuals,
challenging the Tribe's reservation on technical legal grounds. This
would be the first time in modern history that a reservation is
disestablished, and would result in the Mashpee Tribe becoming
perpetually landless. Congress must exercise its plenary authority to
ensure that the Mashpee Tribe and its reservation land is protected.
The Mashpee Tribe, like all other federally recognized tribes,
should be entitled to a federally protected reservation where it can
exercise its sovereignty, protect its culture, and engage in self-
determination. Please enact the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act.
Sincerely,
Douglas Yankton,
Vice-Chairman.
St. Croix Chippewa Indians of Wisconsin,
Webster, WI
June 11, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: The St. Croix Tribe Supports the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of the St. Croix Tribe of Chippewa Indians of Wisconsin,
I respectfully request that the Senate Indian Affairs Committee, and
the House Natural Resources Committee and its Subcommittee on Indian
and Alaska Native Affairs, do everything possible to ensure enactment
of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244
and S. 2628).
The Mashpee Tribe is the only federally recognized tribe in the
Northeast that does not have a land claim settlement. As a result,
unlike other tribes with such settlements, Mashpee had no alternative
but to rely on the general land acquisition authority provided in the
Indian Reorganization Act (IRA) to establish a reservation. The Mashpee
Tribe's reservation is located within Mashpee's traditional homelands,
and was established in accordance with the IRA and with the strong
support of surrounding local governments. Unfortunately, the existence
of this reservation is now threatened by litigation based on technical
legal issues. These technical legal issues could lead to the
disestablishment of Mashpee's reservation--the first time an Indian
reservation would be disestablished since the Termination Era.
A land base is a foundational component of tribal sovereignty and
provides the space for tribes to maintain our cultural identities and
build our economies. The Mashpee Wampanoag Tribe Reservation
Reaffirmation Act reaffirms that status of the Tribe's reservation so
that the Tribe can continue to provide vital services to its members,
protect its culture, and expand its economy to provide for future
generations.
We urge Congress to employ its plenary authority to enact the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act to ensure that
the Mashpee Tribe is not forever rendered continually landless.
Sincerely,
Lewis Taylor,
Chairman, Tribal Council.
Stockbridge-Munsee Community,
Band of Mohican Indians,
Bowler, WI
June 5, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
I am writing on behalf of my Tribe to respectfully request that you
take all necessary action to ensure that the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as
soon as possible. This is an urgent matter, as the Mashpee Tribe's
reservation is in danger of being taken out of trust, despite strong
local government support for its creation.
This threat to the Mashpee Tribe's federally protected lands,
established under the authority of the Indian Reorganization Act, is
the result of litigation brought by a small group of individuals,
challenging the Tribe's reservation on technical legal grounds. This
would be the first time in modern history that a reservation is
disestablished and would result in the Mashpee Tribe becoming
perpetually landless. Congress must exercise its plenary authority to
ensure that the Mashpee Tribe and its reservation land is protected.
The Mashpee Tribe, like all other federally recognized tribes,
should be entitled to a federally protected reservation where it can
exercise its sovereignty, protect its culture, and engage in self-
determination. Please enact the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act.
Sincerely,
Shannon Holsey,
President.
THE SUQUAMISH TRIBE
PORT MADISON INDIAN RESERVATION
RESOLUTION 2018-107
WHEREAS, the Suquamish Tribal Council is the duly constituted governing
body of the Port Madison Indian Reservation by authority of the
Constitution and Bylaws for the Suquamish Tribe of the Port Madison
Indian Reservation, Washington, as approved on July 2, 1965, by the
Under-Secretary of the United States Department of the Interior;
WHEREAS, under Article III of the Constitution and Bylaws of the
Suquamish Tribe, the Suquamish Tribal Council is charged with the
general governance of the Port Madison Indian Reservation and to this
end, has the power, right, and authority to take all actions necessary
to carry such duties into effect, including protecting the health,
security, and general welfare of the Tribe;
WHEREAS, the Mashpee Indian Tribe, a federally recognized Tribe with a
history, culture, and government that predates the founding of the
United States--the Tribe that helped the Pilgrims--eventually lost all
of its historical lands because of the federal government's failure to
protect those lands from encroachment;
WHEREAS, in 2015, the Department of the Interior (``Interior'') finally
rectified this historical injustice when it took into trust certain
land within the Tribe's historical territory in Massachusetts and made
it the Tribe's reservation, with overwhelming local support, pursuant
to the Indian Reorganization Act (``IRA'');
WHEREAS, a suit was filed in federal court to challenge Interior's
action, and the court rejected Interior's original legal theory, which
was based on the second definition of ``Indian'' in the IRA, calling
into question the legal status of the Tribe's reservation; however, the
court further allowed the Tribe to petition Interior under a different
legal theory, based on the first definition of ``Indian'' in the IRA;
WHEREAS, Interior originally sought to defend its decision and the
Tribe's reservation when it filed an appeal in December 2016, but in
May 2017 the Department of Justice withdrew from the litigation and is
no longer defending the status of the Tribe's reservation;
WHEREAS, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act
(H.R. 5244 and S. 2628) will reaffirm the status of the Tribe's
reservation and make clear that the Tribe is entitled to be treated the
same way under the IRA as other federally recognized Tribes; and
WHEREAS, the Mashpee Wampanoag Tribe is not asking for new or special
rights, but rather is asking Congress, through this Act, to exercise
its plenary authority to ensure that the Tribe will be treated equally
with other federally recognized Tribes under the IRA, thereby
protecting the Tribe's existing reservation so that it can continue to
provide services to its members, protect its culture, and provide
employment and housing for its members;
NOW THEREFORE BE IT RESOLVED, that the Suquamish Tribal Council hereby
declares its support for the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act, joining with the Mashpee Wampanoag Tribe in urging
Congress to pass the Act.
CERTIFICATION
The foregoing resolution was duly adopted on June 25, 2018 at a regular
meeting of the Suquamish Tribal Council at which a quorum was present,
by a vote of 6 for and 0 against, with 0 abstention(s), in accordance
and pursuant to the authority vested in it by the Constitution and
Bylaws of the Suquamish Tribe.
By: Attested to by:
Leonard Forsman, Chairman Nigel Lawrence, Secretary
Sycuan Tribe,
El Cajon, CA
June 6, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of my Tribe, we respectfully urge that the Senate Indian
Affairs Committee, and the House Natural Resources Committee and its
Subcommittee on Indian and Alaska Native Affairs, do everything
possible to ensure swift enactment of the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe's
reservation--which was established with the strong support of
surrounding local governments--is threatened by litigation brought by a
NIMBY group based on technical legal issues. We urge Congress to use
its plenary authority to ensure that the Mashpee Tribe is not forever
rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act.
Sincerely,
Cody J. Martinez,
Chairman.
RESOLUTION OF THE TOHONO O'ODHAM LEGISLATIVE COUNCIL
(Supporting Mashpee Wampanoag Tribe Reservation Reaffirmation Act)
RESOLUTION NO. 18-145
WHEREAS, the Constitution of the Tohono O'odham Nation vests the
Legislative Council with the authority to ``consult, negotiate and
conclude agreements and contracts on behalf of the Tohono O'odham
Nation with Federal, State and local governments or other Indian tribes
or their departments, agencies, or political subdivisions . . .''
(Constitution, Article VI, Section 1(f); and
WHEREAS, as a direct result of federal policies designed to break up
tribal governments and Indian land bases and relocate tribes to
economically unproductive reservation lands, Indian land holdings in
the United States fell from 138 million acres in 1887 to 48 million
acres in 1934, a loss that crippled tribes' ability to provide
employment and economic opportunities; and
WHEREAS, these nineteenth century policies were repudiated and replaced
by the land-into-trust acquisition provisions of the Indian
Reorganization Act of 1934 (25 U.S.C. Sec. 465) and other land
acquisition authorities which authorize the Secretary of the Interior
to acquire lands in trust for the benefit of Indian tribes, thereby
providing for the acquisition of land bases that are essential to meet
the needs of tribal governments, including economic development; and
WHEREAS, despite the Department of the Interior's ongoing trust
obligation, after acquiring land in trust for the Mashpee Wampanoag
Tribe in 2015, the United States has withdrawn from a suit defending
its trust acquisition and, as a direct result, the Tribe is now facing
the loss of its reservation lands; and
WHEREAS, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act,
introduced as H.R. 5244 and companion bill S. 2628, will protect the
trust status of Mashpee Wampanoag Tribe's reservation; and
WHEREAS, ``[tlhe Nation's written comments to federal, state, and local
governments on laws and rules proposed by those entities must be
approved by the Tohono O'odham Legislative Council.'' (1 Tohono O'odham
Code Chapter 3, Section 3102); and
WHEREAS, the Tohono O'odham Nation strongly supports the protection of
all tribal trust lands, and the Agricultural and Natural Resources
Committee recommends that the Legislative Council support the Mashpee
Wampanoag Tribe Reservation Reaffirmation Act.
NOW THEREFORE BE IT RESOLVED that the Tohono O'odham Legislative
Council calls upon the United States Congress to enact the Mashpee
Wampanoag Tribe Reservation Reaffirmation Act and any subsequent
federal legislation protecting the trust status of Mashpee Wampanoag
Tribe's reservation.
BE IT FINALLY RESOLVED that the Tohono O'odham Legislative Council
authorizes and directs the Chairman of the Nation and appropriate
Legislative Council delegations to advocate for the enactment of the
Mashpee Wampanoag Tribe Reservation Reaffirmation Act.
The foregoing Resolution was passed by the Tohono O'odham Legislative
Council on the 3rd day of May, 2018 at a meeting at which a quorum was
present with a vote of 2,875.6 FOR; -0- AGAINST; -0- NOT VOTING; and
209.0[06] ABSENT, pursuant to the powers vested in the Council by
Article VI, Section 1(f); and Article VII, Section 2(c) and 2(d) of the
Constitution of the Tohono O'odham Nation, adopted by the Tohono
O'odham Nation on January 18, l986; and approved by the Acting Deputy
Assistant Secretary--Indian Affairs (Operations) on March 6, 1986,
pursuant to Section 16 of the Act of June 18, 1934 (48 Stat. 984).
ATTEST: TOHONO O'ODHAM LEG. COUNCIL
Evonne Wilson, Leg.
Secretary Timothy Joaquin, Leg. Chairman
3rd day of May, 2018 3rd day of May, 2018
Said Resolution was submitted for approval to the office of the
Chairman of the Tohono O'odham Nation on the 3rd day of May, 2018 at
1:48 o'clock, p.m., pursuant to the provisions of Section 5 of Article
VII of the Constitution and will become effective upon his approval or
upon his failure to either approve or disapprove it within 48 hours of
submittal.
[X] APPROVED on the 4th day of May, 2018 at 1:30 o'clock, p.m.
TOHONO O'ODHAM NATION
Edward D. Manuel, Chairman
Tonto Apache Tribe,
Tonto Apache Reservation #30,
Payson, Arizona
June 4, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of my Tribe, we respectfully urge that the Senate Indian
Affairs Committee, and the House Natural Resources Committee and its
Subcommittee on Indian and Alaska Native Affairs, do everything
possible to ensure swift enactment of the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe's
reservation--which was established with the strong support of
surrounding local governments--is threatened by litigation brought by a
group based on technical legal issues. We urge Congress to use its
plenary authority to ensure that the Mashpee Tribe is not forever
rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act.
Sincerely,
Vice Chairman,
Tonto Apache Tribe.
USET--United South and Eastern Tribes, Inc.,
Washington, DC
April 27, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
We write on behalf of United South and Eastern Tribes Sovereignty
Protection Fund (USET SPF) to respectfully urge the Senate Indian
Affairs Committee, and the House Natural Resources Committee and its
Subcommittee on Indian and Alaska Native Affairs, to ensure swift
enactment of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act
(H.R. 5244 and S. 2628).
USET SPF is an intertribal organization comprised of twenty-seven
federally recognized Tribal Nations, ranging from Maine to Florida to
Texas.\1\ USET SPF is dedicated to enhancing the development of
federally recognized Tribal Nations, to improving the capabilities of
Tribal governments, and assisting USET SPF Member Tribal Nations in
dealing effectively with public policy issues and in serving the broad
needs of Indian people.
---------------------------------------------------------------------------
\1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian
Nation (SC), Cayuga Nation (NY), Chitimacha Tribe of Louisiana (LA),
Coushatta Tribe of Louisiana (LA), Eastern Band of Cherokee Indians
(NC), Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw
Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag
Tribe (MA), Miccosukee Tribe of Indians of Florida (FL), Mississippi
Band of Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut
(CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY),
Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township
(ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian
Nation (ME), Poarch Band of Creek Indians (AL), Saint Regis Mohawk
Tribe (NY), Seminole Tribe of Florida (FL), Seneca Nation of Indians
(NY), Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana
(LA), and the Wampanoag Tribe of Gay Head (Aquinnah) (MA).
---------------------------------------------------------------------------
The Tribal land base is a core aspect of Tribal sovereignty,
cultural identity, and represents the foundation of our Tribal
economies. USET SPF Tribal Nations, including the Mashpee Wampanoag
Tribe, continue to work to reacquire our homelands, which are a
fundamental to our existence as sovereign governments and our ability
to thrive as vibrant, healthy, self-sufficient communities. And as our
partner in the trust relationship, it is incumbent upon the federal
government to prioritize the restoration of our land bases.
However, the Mashpee Wampanoag Tribe's reservation--which was
established with the strong support of surrounding local governments--
is threatened by litigation brought by a group of individual citizens
opposed to Tribal sovereignty. This jeopardizes the ability of the
Mashpee Wampanoag Tribe to rebuild its economy and provide essential
government services to its citizens, which are the fundamental goals of
the land-into-trust process. The Mashpee Wampanoag Tribe Reservation
Reaffirmation Act simply provides legal certainty to the status of the
Tribe's trust land, allowing these efforts to proceed forward.
As a federally recognized Tribal Nation, it is critical for the
Mashpee Wampanoag Tribe to restore its homelands. We urge Congress to
use its authority to ensure that the Mashpee Tribe is not forever
rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act. Should you have any questions or require
further information, please contact Ms. Liz Malerba, USET SPF Director
of Policy and Legislative Affairs, at (XXX)X-XXXX.
Sincerely,
Kirk Francis, Kitcki A. Carroll,
President Executive Director
TESTIMONY OF THE UNITED SOUTH AND EASTERN TRIBES
SOVEREIGNTY PROTECTION FUND
For the Record of the House Natural Resources Subcommittee on
Indigenous Peoples of the United States Legislative Hearing on, ``H.R.
375, H.R. 312, and the RESPECT Act''
April 17, 2019
The United South and Eastern Tribes Sovereignty Protection Fund
(USET SPF) is pleased to provide the House Natural Resources
Subcommittee on Indigenous Peoples of the United States with the
following testimony for the record of its legislative hearing on,
``H.R. 375, H.R. 312, and the Requirements, Expectations, and Standard
Procedures 3 for Executive Consultation with Tribes (RESPECT) Act.''
USET SPF appreciates the Subcommittee's willingness to begin its work
in the 116th Congress with two issues of great import to USET SPF and
across Indian Country: the restoration of Tribal homelands and the
strengthening of Tribal consultation requirements.
USET SPF is a non-profit, inter-tribal organization representing 27
federally recognized Tribal Nations from Texas across to Florida and up
to Maine.\1\ USET SPF is dedicated to enhancing the development of
federally recognized Tribal Nations, to improving the capabilities of
Tribal governments, and assisting USET SPF Member Tribal Nations in
dealing effectively with public policy issues and in serving the broad
needs of Indian people. This includes advocating for the full exercise
of inherent Tribal sovereignty.
---------------------------------------------------------------------------
\1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian
Nation (SC), Cayuga Nation (NY), Chitimacha Tribe of Louisiana (LA),
Coushatta Tribe of Louisiana (LA), Eastern Band of Cherokee Indians
(NC), Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw
Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag
Tribe (MA), Miccosukee Tribe of Indians of Florida (FL), Mississippi
Band of Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut
(CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY),
Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township
(ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian
Nation (ME), Poarch Band of Creek Indians (AL), Saint Regis Mohawk
Tribe (NY), Seminole Tribe of Florida (FL), Seneca Nation of Indians
(NY), Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana
(LA), and the Wampanoag Tribe of Gay Head (Aquinnah) (MA).
---------------------------------------------------------------------------
Restoration of Tribal Homelands
The Tribal Nations located in the eastern part of what is now the
United States have a lengthier history when it comes to the systematic
dispossession of our lands as a result of hundreds of years of federal
(and before that, colonial) policies. In the wake of these policies, a
majority of USET SPF Tribal Nations hold only a fraction of their
homelands and some remain landless.
In response to federal policies that stripped us of our land base,
the Department of the Interior (DOI) has, for nearly 85 years, restored
Tribal lands through trust acquisitions to enable Tribal Nations to
build schools, health clinics, hospitals, housing, and provide other
essential services to Tribal citizens. Over this period, DOI has
approved trust acquisitions for approximately 5 million acres of former
Tribal homelands, which represents only a small fraction of the more
than 100 million acres lost through Federal policies of removal,
allotment, and assimilation.
USET SPF Tribal Nations continue to work to reacquire our
homelands, which are fundamental to our existence as sovereign
governments and our ability to thrive as vibrant, healthy, self-
sufficient communities. And as our partner in the trust relationship,
it is incumbent upon the federal government to prioritize the
restoration of our land bases. The federal government's objective in
the trust responsibility and obligations to our Nations must be to
support healthy and sustainable self-determining Tribal governments,
which fundamentally includes the restoration of lands to all federally
recognized Tribal Nations, as well as the legal defense of these land
acquisitions.
No Tribal Nation should remain landless. All Tribal Nations,
whatever their historical circumstances, need and deserve a stable,
sufficient land base--a homeland--to support robust Tribal self-
government, cultural preservation and economic development. The federal
government should ensure every Tribal Nation has the opportunity to
restore its homelands, regardless of the concerns of other units of
government, private citizens, or other interests. This is a necessary
function of the U.S. government in delivering upon the trust
responsibility and obligations to Tribal Nations. Regaining a land base
is essential to the exercise of Tribal self-government. When the
federal government holds land in trust for a Tribal Nation, the Tribal
Nation is able to exercise jurisdiction over the land, including over
individuals' actions and over taxation. This jurisdiction allows the
Tribal Nation to protect its people and to generate economic growth,
which in turn encourages the flourishing of the Tribal Nation's
cultural practices. Jurisdiction over territory is a bedrock principle
of sovereignty, and Tribal Nations must exercise such jurisdiction in
order to fully implement the inherent sovereignty they possess. Just as
states exercise jurisdiction over their land, Tribal Nations must also
exercise jurisdiction, thereby promoting government fairness and parity
between state governments and Tribal Nation governments.
While USET SPF member Tribal Nations ultimately seek full
jurisdiction and management over our homelands without federal
government interference and oversight, we recognize the critical
importance of the restoration of our land bases through the land-into-
trust process. We further recognize that the federal government has a
trust responsibility and obligation to Tribal Nations in the
restoration and management of trust lands. With this in mind, it is
vital that the land-into-trust process be available to and applied
equally to all federally recognized Tribal Nations. This parity is
central to the federal government's legal and moral obligations to all
of Indian Country.
The fundamentally incorrect 2009 decision in Carcieri v. Salazar
has created a deeply inequitable 2-class system, in which some Tribal
Nations have the ability to restore the homelands stolen from them and
others do not. This 2-class system serves to deny these Tribal Nations
a critical component of the trust relationship, vital aspects of the
exercise of inherent sovereignty, and the opportunity to qualify for
several government programs. To add insult to injury, in the years
following the decision, the rhetoric surrounding the need to correct
this grave injustice has been perverted by those who seek to undermine
the acquisition of trust lands for Tribal Nations. This has led to
widespread misunderstanding about the purpose and effects of a fix.
As Congress (and other branches of the federal government)
approaches the restoration of Tribal homelands, USET SPF continues to
repeat that this basic correction is simply that. It returns us to the
status quo prior to 2009--a rigorous process for the acquisition of
trust land for ALL federally recognized Tribal Nations. This long
overdue fix does not confer any additional benefits or supersede any
existing law, nor is it about anything other than the rightful
restoration of Tribal homelands.
USET SPF continues to call for the immediate passage of a fix that
contains the two features necessary to restore parity to the land-into-
trust process: (1) a reaffirmation of the status of current trust
lands; and (2) confirmation that the Secretary has authority to take
land into trust for all federally recognized Tribal Nations. USET SPF
extends its gratitude to Rep. Tom Cole for his continued introduction
of bi-partisan legislation that would right this wrong.
RESPECT Act
Another essential aspect of the federal trust responsibility and
obligations to Tribal Nations is the duty to consult on the development
of federal policies and actions that have Tribal implications. This
requirement is borne out of the sacred relationship between the federal
government and Tribal Nations, as well as numerous treaties, court
cases, laws, and executive actions. It is a recognition of our inherent
sovereignty and self-determination.
However, the duty to consult, despite existing policies and
agreements, including Executive Order (E.O.) 13175, is not consistently
undertaken or applied, nor is it codified in law. As a result, Tribal
Nations continue to experience inconsistencies in consultation
policies, the violation of consultation policies, and mere notification
of federal action as opposed to a solicitation of input. Letters are
not consultation. Teleconferences are not consultation. Providing the
opportunity for Tribal Nations to offer guidance and then failing to
honor that guidance is not consultation. Meaningful consultation is a
minimal standard for evaluating efforts to engage Tribal Nations in
decision-making, and in the context of high-stakes infrastructure
projects, Tribal consent is required to fulfill the federal treaty and
trust responsibilities. The determination of what level of consultation
is required should come from Tribal Nations. Meaningful consultation
requires that dialogue with Tribal partners occur with a goal of
reaching consent.
Indeed, the relationship between the United States and Tribal
Nations began as one of mutual consent to treaty terms and other
agreements, even if the Tribal Nations were under duress. That mutual
consent principle should continue, though of course applied this time
in an honorable fashion. In the short term, we must move beyond the
requirement for Tribal consultation via Executive Order to a
strengthened model achieved via statute. In the long term, we must
return to the achievement of Tribal Nation consent for federal action
in recognition of sovereign equality.
It is time that the U.S. work to reform the Tribal consultation
process, as conducted by agencies across the federal government. USET
SPF strongly supports the codification of consultation requirements for
all federal agencies and departments. This is consistent with our
efforts to modernize the federal trust relationship, including ensuring
that Tribal Nations are full and equal participants in the shaping of
federal Indian policy.
With this in mind, USET SPF supports the spirit and intent of the
discussion draft of the Requirements, Expectations, and Standard
Procedures for Executive Consultation with Tribes (RESPECT) Act. We
commend Chairman Grijalva for beginning an important dialogue on how to
strengthen consultation requirements. USET SPF is especially pleased to
see that the RESPECT Act would apply to all federal agencies and
departments, including independent agencies, as each of these entities
shares equally in the federal trust responsibility and obligations.
We are also pleased that the Chairman has released the RESPECT Act
as a discussion draft. We believe there are opportunities to further
refine and strengthen this draft legislation, including addressing
issues related to the achievement of Tribal Nation consent, as well as
supporting inter-agency coordination and training, and the creation of
an Indian desk at the Office of Management and Budget. In addition, we
share some concern about the unintentionally narrow scope of the Act.
We look forward to the opportunity to work with Chairman to sharpen the
legislative language and ensure the RESPECT Act is appropriately
comprehensive.
______
UTE INDIAN TRIBE,
Ute Tribal Business Committee,
Fort Duchesne, Utah
June 12, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
Act
Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
Vice Chairman Udall:
On behalf of my Tribe, we respectfully urge that the Senate Indian
Affairs Committee, and the House Natural Resources Committee and its
Subcommittee on Indian and Alaska Native Affairs, do everything
possible to ensure swift enactment of the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act (H.R. 5244 and S. 2628).
Every federally recognized tribe in the United States should be
entitled to a federally-protected reservation where it can exercise its
sovereignty, protect its culture, and benefit from the federal laws and
programs that are tied to having reservation land. The Mashpee Tribe's
reservation--which was established with the strong support of
surrounding local governments--is threatened by litigation brought by a
NIMBY group based on technical legal issues. We urge Congress to use
its plenary authority to ensure that the Mashpee Tribe is not forever
rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act.
Sincerely,
Luke Duncan,
Chairman.
______
THE WACCAMAW INDIAN PEOPLE,
Conway, SC
September 30, 2018
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Dear Congressman:
I am writing in support of H.R. 5244. I know that you are the
ranking member of the House Natural Recourses Committee and it is your
participation with that committee that I believe is very key at this
moment in time. I fear that your committee, surrendering the authority
to reaffirm the Mashpee Wampanoag's Tribal Reservation, will harm real
people and a real culture, in the near future. Mashpee should not be
forced to jump through hopes that no one else does. Indians already
have to meet arbitrary standards that never apply to non-Indians.
I realize that your job is a difficult one and that no matter which
step you take, one side is happy, the other side disappointed. This
issue needs to be raised above the ``feels good today'' status, to a
level that will support this country and Native Culture, into the
future generations.
The Mashpee Wampanoag are real. They are real fathers, mothers,
sons, daughters and friends. We are real people who have made a strong
contribution to this country. Our (Indian) people, serve more per
capita in the United States Armed Forces than any other ethnic group.
49 of our people are awarded the congressional Medal of Honor and
countless of our people have died to protect your position as a United
States Congressman and all freedoms enjoyed by every citizen of this
country, except the Indian people.
The history and culture of this country is predated by that of the
Indian communities by centuries. As an American, we cannot afford to
lose it, least our history be a mere 249 years old. As an Indian, our
people deserve to feel secure in what we have earned over the years. We
should not be subjected to the ``to and fro'' threats, to our people
and society.
Congressman, please support H.R. 5244 and give us back some
security! Thank you for your time today and for what you do for this
country.
I remain sincerely,
Harold (Buster) Hatcher,
Chief of the Waccamaw.
Yankton Sioux Tribe,
Wagner, SD
June 1, 2018
Hon. Rob Bishop,
Hon. Raul Grijalva,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Hoeven,
Hon. Tom Udall,
Senate Committee on Indian Affairs,
Washington, DC 20510.
Re: Support for H.R. 5244/S. 2628, the Mashpee Wampanoag Tribe
Reservation Reaffirmation Act
Dear esteemed Members of Congress:
I am writing on behalf of the Yankton Sioux Tribe to advocate for
the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244
and S. 2628). We strongly urge the Senate Indian Affairs Committee, and
the House Natural Resources Committee and its Subcommittee on Indian
and Alaska Native Affairs, to ensure the reaffirmation of the Mashpee
Tribe's Reservation.
The Mashpee Wampanoag Tribe is a federally recognized tribe with a
reservation located within its historical homeland in Massachusetts.
This reservation was established in accordance with the Indian
Reorganization Act and with strong local government support. The
Mashpee Tribe has been successful in rebuilding and providing for its
members, as well as establishing great relationships with surrounding
local governments. The Mashpee Tribe's reservation is threatened by
litigation that could disestablish the reservation, which has not
happened since the Termination era.
The Mashpee Tribe is not asking for new or special rights, only the
reaffirmation of its reservation. If Congress does not exercise its
plenary authority, the Mashpee Tribe's reservation and means of self-
sufficiency will be lost. This is consistent with the federal
government's trust obligations to federally recognized tribes. Please
enact this important legislation.
Sincerely,
Robert Flying Hawk,
Chairman, Business and Claims Committee.
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Submission for the Record by Vanessa L. Ray-Hodge
--NCAI Comments on Tribal Trust Compliance and Federal
Infrastructure Decision-Making, November 30, 2016
[all]