Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?
                                                       Calendar No. 685
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-361
_______________________________________________________________________


 
 TO DEEM THE ACTIVITIES OF THE MICCOSUKEE TRIBE ON THE TAMIAMI INDIAN 
   RESERVATION TO BE CONSISTENT WITH THE PURPOSES OF THE EVERGLADES 
                 NATIONAL PARK, AND FOR OTHER PURPOSES

                                _______
                                

                October 2, 1998.--Ordered to be printed

_______________________________________________________________________


   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 1419]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1419) to deem the activities of the Miccosukee Tribe 
on the Tamiami Indian Reservation to be consistent with the 
purposes of the Everglades National Park, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment in the nature of a substitute and recommends 
that the bill (as amended) do pass.

                                purpose

    The purpose of S. 1419 is to enlarge the area within 
Everglades National Park (ENP or Park) which is treated as a 
reservation of the Miccosukee Indian tribe. As amended by the 
Committee, the bill will provide a detailed legislative 
framework for permanent tribal residence within the boundaries 
of Everglades National Park. The bill replaces the current 
framework, which provides the National Park Service with little 
guidance on how and when to review tribal decisions that might 
have an impact upon the Park.

                               background

    Pursuant to a state law signed by Florida Governor Sidney 
J. Catts on May 9, 1917, the trustees of the Internal 
Improvement Board of the State of Florida transferred 99,200 
acres in Monroe County to the ``Board of Commissioners of State 
Institutions,'' Florida's cabinet, ``for the perpetual use and 
benefit of the Florida Indians.'' 1 As one historian 
explains, ``Little opposition had developed to the bill, for in 
a hearing before the Internal Improvements Board it was pointed 
out that, outside of hunting and fishing activities, the land 
had little value for the whites and that nobody had plans for 
its use except as a Seminole reservation.'' 2 This 
changed when plans began to be laid for the use of the lands as 
a national park.
---------------------------------------------------------------------------
    \1\ James W. Covington, ``The Seminoles of Florida,'' p. 185 
(1993).
    \2\ Id.
---------------------------------------------------------------------------
    In 1929, Congress directed the Secretary of Interior ``to 
investigate and report to Congress as to the desirability and 
practicality of establishing a national park, to be known as 
the Tropic Everglades National Park, in the everglades of Dade, 
Monroe, and Collier Counties of the State of Florida, for the 
benefit and enjoyment of the people of the United States * * * 
.'' 3
---------------------------------------------------------------------------
    \3\ Act of March 1, 1929, c. 446 (45 Stat. 1443).
---------------------------------------------------------------------------
    One December 3, 1930, Interior Secretary Ray Lyman Wilbur 
submitted the required report to Congress expressing his 
opinion that the establishment of a national park in the 
everglades is an idea of ``outstanding merit.'' His report 
explained:

        [t]he area is of national and not merely local 
        interest. The tropical-plant and animal life, the 
        excellence of the fishing, and the bird life, which is 
        remarkable both for the number of species and for the 
        abundance of birds, evidences of prehistoric human 
        occupation and the present Seminole Indian [presence], 
        are sufficient to give the area a national interest.'' 
        4
---------------------------------------------------------------------------
    \4\ S. Rep. 73-50, 1st Sess., p. 12, (Letter of Ray Lyman Wilbur, 
Secretary of Interior, to President of the Senate, December 3, 1930) 
(emphasis supplied).

---------------------------------------------------------------------------
His report goes on to state:

        [t]here seems to be some question as to whether or not 
        there is a specific reservation for the Seminole 
        Indians within the [proposed park boundaries] and this 
        will have to be further investigated 
        locally.5
---------------------------------------------------------------------------
    \5\ Id. at 15.

    The Everglades National Park was established through the 
Act of May 30, 1934, 48 Stat. 816. The Act provides: ``[when 
title to all the lands within the boundaries to be determined 
by the Secretary of Interior * * * in his report to Congress of 
December 3, 1930, * * * shall have been vested in the United 
States, said lands shall be, and are, established, dedicated, 
and set apart as a public park for the benefit and enjoyment of 
the people and shall be known as Everglades National Park[.]''
    Section 3 of the Act provides that the development of the 
Park ``shall be exercised under the direction of the Secretary 
of Interior by the National Park Service'' with the following 
proviso: ``[that nothing in sections 1 through 4 of this title 
shall be construed to lessen any existing rights of the 
Seminole Indians which are not in conflict with the purposes 
for which the [Park] is created.'' 6
---------------------------------------------------------------------------
    \6\ 16 U.S.C. Sec. 410b.
---------------------------------------------------------------------------
    On the day the bill creating the Park was passed by the 
House of Representatives, this provision was discussed on the 
House floor with the Chairman of the Committee on Public Lands:

          Mr. Kvale. I rise * * * to ask the chairman of the 
        committee if he can give us any information regarding 
        whether or not the Indian wards of the Government have 
        been taken care of?
          Mr. DeRouen. Yes. It is proposed by the Park Service 
        to place the Seminole Indians in the park to be used as 
        guides and to be employed in other ways * * * it is 
        proposed to leave them there and use them as guides 
        throughout the park.
          Mr. Kvale. In other words, they will be permitted to 
        remain relatively undisturbed in their own country and 
        in their own homes?
          Mr. DeRouen. Yes. Of course their actual reservation 
        is outside the park; but we propose to bring them into 
        the area, and it is the purpose of the Park Service to 
        do so.7
---------------------------------------------------------------------------
    \7\ Cong. Rec. May 24, 1934, p. 9509.

    Upon transferring state reservation lands known as the 
Monroe Indian Reservation to the federal government for 
inclusion within the Park, the State of Florida sought to 
mitigate the impact of the loss of those lands by designating 
104,000 acres north of the Park in Broward and Palm Counties as 
a state Indian reservation. Everglades National Park was 
dedicated in 1947.
    The Indians residing within or near the everglades when the 
lands were transferred to the Park refused to move to the new 
state reservation as they had eschewed previous attempts to 
encourage their relocation to federal or other state 
reservations established for Seminole Indians within Florida. 
Instead, they remained within the Park or along the Tamiami 
Trail. In this manner, the Miccosukee tribe continued to exist 
as politically and culturally distinct from the larger Seminole 
Indian tribe.\8\ (In 1957 the Seminole tribe adopted a 
constitution pursuant to the Indian Reorganization Act (IRA), 
the Act of June 8, 1934, c. 576, 48 Stat. 985).
---------------------------------------------------------------------------
    \8\ For example, the Miccosukee Seminole Nation initially opposed 
the filing of a claim by the Seminole Tribe before the Indian Claims 
Commission. The Commission refused to dismiss the case and the 
Miccosukee tribe subsequently intervened several years after it was 
recognized in 1962.
---------------------------------------------------------------------------
    With the assistance and encouragement of the Bureau of 
Indian Affairs, the tribe drafted an IRA constitution. On 
January 11, 1962, the Miccosukee Tribe's Constitution and 
Bylaws were certified by the Secretary of the Interior. Later 
that year, a permit was issued by the Department of Interior, 
which authorized the tribe's use of an area along the road 
frontage at the northern end of the Park. The permit area was 
500 feet wide and five miles long containing 333 acres. The 
August 29, 1962, letter of transmittal states:

        this act[ion] is taken consonant with the Act of May 
        30, 1934, which provided for the establishment of 
        Everglades National Park. The reference is especially 
        to the section of that [A]ct which said that nothing 
        should be done that would interfere with the existing 
        rights of the Seminole [Miccosukee] Indians. The 
        implication was that Congress wanted to give every 
        consideration to the [Tribe]. This permit follows the 
        intent of Congress.

    In addition, providing a tribal land-base was an essential 
attribute of the federal policy of economic and political self-
determination.\9\ Administrative, housing, and educational 
facilities, along with a clinic, were constructed on the tribal 
land base. Indeed, even before the Indian Self-Determination 
and Education Assistance Act, P.L. 93-638, made such 
arrangements routine, the tribe contracted with the BIA to 
provide federal services to its members.
---------------------------------------------------------------------------
    \9\ In 1960, the federal government began to reconsider the policy 
of terminating the federal relationship with Indian tribes. In place of 
that policy, it began to develop the policy of tribal self-
determination, which has been affirmed and expanded by each subsequent 
administration. See, e.g., Message of President Nixon to Congress 
Transmitting Recommendations for Indian Policy, H.R. Doc. No. 363, 91st 
Cong. 2nd Sess.
---------------------------------------------------------------------------
    As amended, the permit's terms include the following 
provision: ``Construction-No building or other structure shall 
be erected under this permit except upon prior approval of 
plans and specifications by the Director, National Park 
Service, and the premises and all appurtenances thereto shall 
be kept in a safe, sanitary, and sightly condition.'' The fifty 
year permit is scheduled to expire in 2014.

                        the need for legislation

    The tribe and the National Park Service have been able to 
reach accommodations and agreements on a number of issues; 
often with the participation of other Interior agencies such as 
the Bureau of Indian Affairs (BIA). Nevertheless, significant 
questions have been raised over whether continued reliance on 
the statute establishing the Park provides an adequate 
framework for addressing the issues raised by the tribe's 
presence within the Park.
    Under present law, conflicts between the tribe and the Park 
Service may occur on a wide range of issues. For example, the 
Tribe testified that its applications to construct housing and 
other important community infrastructure needs have languished 
without Park Service action. Frustrated by this lack of 
progress, the tribe proceeded to apply for the necessary dredge 
and fill permit under Sec. 404 of the Clean Water Act. The Park 
Service opposed this action, claiming that the tribe's 
ownership interest in the permit land was insufficient to allow 
them to obtain such a permit.\10\
---------------------------------------------------------------------------
    \10\ The Everglades National Park: Hearings before the House 
Subcommittee on National Parks and Public Lands of the Committee on 
Resources, 105th Congress 1st sess., 105-65, p. 7 (Sept. 25, 1997).
---------------------------------------------------------------------------
    The Interior Department points out that the delay in 
responding to tribal applications was due in part to the Park 
Service's need to respond to a contemporaneous natural resource 
crisis; Hurricane Andrew. The Park Service also points out the 
lack of analogous situations within other National Parks merely 
creates the appearance that their responses to the tribe are ad 
hoc. The Department has also expressed concern with the 
tremendous amount of resources, both federal and local, that 
are directed at improving the everglades ecosystem restoration. 
It argues that federal statutes make these restoration efforts 
its first priority.
    Nonetheless, the assertion that the tribe's interest in the 
permit lands is legally insufficient to apply for a Sec. 404 
(dredge and fill) permit adds to the tribe's uncertainty about 
whether its residency in the Park might expire with the present 
permit in 2014. As the United States Court of Appeals 
explained, there are four critical elements necessary for 
tribal sovereignty: water rights, mineral rights, government 
jurisdiction, and land. City of Albuquerque v. Browner, 97 F.3d 
415 (10th Cir. 1996). The present situation results in 
significant uncertainty with respect tothe latter two elements. 
This is inconsistent with the federal policy of self-determination. It 
is also contrary to the principle that the tribe's rights would be 
accommodated within the Park.
    Representative James Hansen, the Chairman of the House 
Subcommittee on National Parks and Public Lands of the 
Committee on Resources described the situation this way: 
``[u]nfortunately, the growth needs of the tribe and the 
mission of the Park Service have seemed to clash in recent 
years.'' He explained that he was ``concerned that the 
Department [of Interior] is managing the Miccosukee Tribe 
through the Park Service. This is not an appropriate role for 
the Park Service. * * * Yet, the Park Service does have the 
mandate to protect the resources of the park.'' \11\
---------------------------------------------------------------------------
    \11\ Id. at 1.
---------------------------------------------------------------------------

                          LEGISLATIVE HISTORY

    S. 1419 was introduced on November 7, 1997 by Senator 
Connie Mack of Florida and referred to the Senate Committee on 
Indian Affairs (Committee).
    A nearly identical measure, H.R. 3055, was introduced by 
Representative Alcee Hastings in the House of Representatives 
on November 13, 1997 and referred to the House Resources 
Committee and the House Transportation and Infrastructure 
Committee, where it was referred to the Subcommittee on Water 
Resources and the Environment.
    On June 11, 1998, the House Resources Subcommittee on 
National Park and Public Lands held a subcommittee meeting. 
Subcommittee Chairman James V. Hansen of Utah offered an 
amendment in the nature of a substitute to H.R. 3055, which was 
adopted along with technical amendments and reported to the 
full Resources Committee with an amendment in the nature of a 
substitute. On July 22, 1998, H.R. 3055 was amended and 
reported to the House Resources Committee. On September 11, 
1998, the Committee on Natural Resources reported the bill to 
the House of Representatives with amendments.
    On July 8, 1998, the Senate Indian Affairs Committee held a 
legislative hearing to consider S. 1419. At the hearing, Edward 
B. Cohen, Deputy Solicitor for the Department of Interior 
testified on behalf of the Administration. Mr. Cohen testified 
in opposition to S. 1419. He indicated that the Department was 
negotiating with the tribe to produce a bill that addressed a 
number of issues that were not necessarily covered by S. 1419, 
as introduced. Mr. Cohen expressed hope that the Department 
would soon be able to support a compromise bill:

          I am pleased to report that the Tribe and the 
        Department have been engaged in serious, detailed and 
        constructive discussions to develop a legislative 
        proposal which meets the Tribe's current and future 
        needs while protecting the interests of Everglades 
        National Park and the restoration of the South Florida 
        ecosystem.

    The results of these discussions are incorporated in the 
amendment in the nature of a substitute offered by Senator 
Mack. On July 29, 1998, the Committee favorably reported this 
amendment in the nature of a substitute.

                         SUMMARY OF PROVISIONS

Findings and purposes

    The Congressional Findings point out that the tribal 
population is growing ``as have the needs and desires of the 
Tribe and its members for modern housing'' and other 
facilities. The tribe has been an integral part of efforts to 
restore the everglades ecosystem. It has recognized that the 
expanded Permit areas is located in an area ``critical to the 
protection and restoration of the Everglades.'' Therefore, both 
the findings and substantive provisions of the bill commit the 
tribes to these efforts.
    The purposes of the bill are grounded in two important 
federal policies. The first is the federal policy of tribal 
self-determination, based upon a government-to-government 
relationship between Indian tribes and the federal government. 
The statute establishing the ENP preceded the enactment of the 
Indian Reorganization Act (IRA) of 1934,\12\ which established 
the new federal policy of limiting federal domination of tribal 
decision-making. Thus, event though 16 U.S.C. Sec. 410b seeks 
to preserve the tribe's rights, it is susceptible to criticism 
that it is neither grounded nor consistent with principles of 
tribal self-determination or a government-to-government 
relationship. S. 1419 seeks to eliminate these concerns because 
the framework it establishes was negotiated between the Tribe 
and Department. In addition, the Act seeks to encourage and 
facilitate further negotiated settlements.
---------------------------------------------------------------------------
    \12\ Act of June 18, 1934, c. 576, 48 Stat. 985. Prior to the IRA, 
federal policy undermined tribal authority in a number of ways, 
including the allotment and diminishment of the tribal landbase. 
Recognizing the impact of that policy, the IRA sought to preserve and 
foster tribal authority by ending and reversing the diminishment of 
tribally owned lands.
---------------------------------------------------------------------------
    The second purpose of the bill is to ensure that the 
existence of an enlarged Miccosukee Reserved Area does not 
interfere with efforts needed to support restoration of the 
ecosystem in South Florida.\13\
---------------------------------------------------------------------------
    \13\ See, e.g., P.L. 104-303, the Water Resources Development Act 
of 1996, Sec. 528, the Everglades and South Florida Ecosystem 
Restoration Project.
---------------------------------------------------------------------------

Tribal rights and authority on the Miccosukee Reserved Area

    The bill terminates the special use permit issued to the 
Tribe by the Department of Interior. In place of the permit, 
the bill recognizes the tribe's presence within the Park, 
without compromising the objectives for creating the Park. 
Since intrusive federal management of tribal activities is 
incompatible with the federal policy of tribal self-
determination, the bill addresses those matters where federal 
oversight is necessary to ensure that tribal actions do not 
threaten or create undo risks to the Park and leavesother 
matters within the exclusive purview of the tribe.

Perpetual use and occupancy

    As discussed above, a permanent tribal land-base has been 
found to be essential to the federal policy of tribal self-
determination. Although the Act creating the Park explicitly 
preserved preexisting tribal rights, the tribe still waited for 
almost thirty years before its right to reside in the Park was 
ratified through the issuance of a permit. Furthermore, the 
specter of additional conditions being added to the permit, its 
cancellation, or expiration are contrary to the principles of 
self-determination.
    Consistent with the federal policy of tribal self-
determination, the bill specifically addresses the nature of 
tribal and federal authority within the MRA. As part of 
treating the MRA as a federal reservation, subsection 5(c) 
applies the ``Indian country'' designation to these lands. This 
designation is intended to avoid any confusion or litigation 
over the unique nature of the MRA. As the Supreme Court has 
explained, the existence or absence of an Indian reservation, 
as such, is not a talisman for determining whether land comes 
within the statutory definition of Indian country. ``Congress 
has defined Indian country broadly to include formal and 
informal reservations, dependent Indian communities, and Indian 
allotments, whether restricted or held in trust by the United 
States'' \14\
---------------------------------------------------------------------------
    \14\ Oklahoma Tax Commission v. Sac and Fox Nation, 504 U.S. 114, 
123 (1993).
---------------------------------------------------------------------------
    In 1961, the State of Florida accepted civil and criminal 
jurisdiction over Indian lands pursuant to P.L. 83-280.\15\ In 
1983, the United States Court of Appeals for the 11th Circuit 
ruled that Florida's assumption of jurisdiction could not 
include the Park:
---------------------------------------------------------------------------
    \15\ In 1968 Congress amended P.L. 83-280 to require tribal 
consent, preventing states from unilaterally obtaining ``P.L. 280'' 
jurisdiction. P.L. 90-284, 82 Stat. 79 (1968).

          The Federal statute [P.L. 280] provides that a state 
        may acquire jurisdiction over Indian affairs to the 
        extent that it has jurisdiction over offenses committed 
        elsewhere in the state. But, because the Everglades 
        National Park remains in the exclusive jurisdiction of 
        the federal government, Florida has not and cannot 
        extend its jurisdiction to cover Indian lands located 
        within the Park.\16\
---------------------------------------------------------------------------
    \16\ United States v. Daye, 696 F.2d 1305, 1307 (11th Cir. 1983).

    This would seem to make any reference to P.L. 280 in the 
bill superfluous. Nevertheless, the objective of this bill is 
to seek to address as many potential issues as possible. Thus, 
this section makes it clear that Congress does not intend that 
P.L. 280 will apply within the MRA.
    Although the definition of Indian Country at 18 U.S.C. 
Sec. 1151 is concerned with the scope of criminal jurisdiction, 
it is commonly employed by courts and Congress in the context 
of civil jurisdiction as well. By treating the MRA as ``Indian 
Country'' it is intended that the tribe will exercise the same 
jurisdiction over those entering the reservation, either Indian 
or non-Indian, member of non-member, that any other tribe would 
exercise in an analogous situation within Indian country. In 
addition, the Committee does not intend to place the tribe or 
its members at any disadvantage with respect to rights or 
services that they would possess if the MRA was formally held 
in trust for the tribe by the United States on behalf of the 
tribe.
    The first sentence of section 5(d) accomplishes a similar 
result. Even where the United States possesses exclusive 
jurisdiction over an area,\17\ the United States has indicated 
willingness, in some circumstances, to share concurrent 
jurisdiction with states. To the extent that the United States 
has or will share jurisdiction within the Park, neither the 
United States or the State of Florida have any intent to do so 
with respect to tribal lands. For example, the Florida statute 
that authorizes state assumption of concurrent jurisdiction 
over federal lands, provides that the state will not accept 
concurrent jurisdiction over tribal lands without the tribe's 
consent.\18\ The Indian Civil Rights Act of 1968 also requires 
tribal consent before P.L. 280 is applied to a tribe's 
reservation. Thus, both federal and state law preserve federal 
jurisdiction over the entire MRA. This should not be construed, 
however, to discourage the three sovereigns from working to 
obviate any questions that may arise by entering into 
cooperative agreements. This is especially encouraged with 
respect to law enforcement matters. Indeed, the Committee notes 
that section 8(g) specifically preserves authority to enter 
into cooperative agreements.
---------------------------------------------------------------------------
    \17\ U.S. Constitution, art. 1, sec. 8, cl. 17.
    \18\ Laws of the State of Florida, Chapter 86-67, June 5, 1986, 
codified at Florida Statutes Annotated Sec. 6.075.
---------------------------------------------------------------------------

Preservation of other rights

    As discussed throughout this report, the organic act 
establishing the Everglades National Park explicitly recognizes 
the historic, cultural, and religious significance of the Park 
to the Native People of Florida. Other acts of Congress have 
included similar explicit references to these ties between the 
Miccosukee and Seminole Tribes and the flora, fauna, land, and 
water of the everglades region.\19\ This provision is included 
to make it clear that the bill does not compromise any of these 
rights.
---------------------------------------------------------------------------
    \19\ See, e.g., P.L. 93-440, Big Cypress National Preserve-
Establishment. ``The Miccosukee and Seminole Indians have traditionally 
used much of this area for hunting, fishing and ceremonial purposes. 
They are to be permitted to continue such usual and customary uses * * 
*.'' S. Rep. 93-1128 (Aug. 22, 1974).
---------------------------------------------------------------------------

Protection of Everglades National Park

    As discussed above, the tribe's presence within the Park is 
by no means incompatible with the purposes for establishing the 
Park. By acting in a manner consistent with the provisions of 
the bill, the land dedicated to the tribe's use within the Park 
can be treated as a reservation, and remain a part of the Park, 
consistent with, and fulfillingCongress' objective in 
establishing the Park in 1934. However, some parts of the MRA were 
formerly designated as part of the Marjorie Stoneman Douglas Wilderness 
Area. Obviously, it will not be possible for these lands to be treated 
as both a wilderness area and as part of the MRA. As a result, this 
legislation should be construed to release the area designated as the 
MRA from wilderness status.
    Section 6(a)(2) provides that the Tribe shall be 
responsible for compliance with all applicable laws, except as 
specifically exempted by the Act. This provision is broad to 
ensure protection of Park. It is not the Committee's intent, 
however, to make any additional laws applicable (or conversely 
inapplicable) to the tribe, except as provided in the bill.
            Prevention of degradation
    Because of the importance of water quality to efforts to 
restore, preserve, and protect the Everglades, the bill sets 
out how this objective will be met. The tribe is not to further 
degrade the quality of water entering the MRA and released into 
other parts of the Park if the water fails to meet water 
quality standards as set by the State of Florida and approved 
by the Federal government under the Clean Water Act, 33 U.S.C. 
Sec. 1251 et seq. The tribe is not, however, responsible for 
improving the water quality of such water.
    With respect to water entering the MRA which meets 
applicable water quality standards, the tribe shall not cause 
the water to fail to comply with applicable water quality 
standards.
    Similarly, to the extent that a condition, activity, or 
structure within the MRA significantly disrupts the flow of 
surface or groundwater that would otherwise flow, either 
directly or indirectly, into other parts of the park, the tribe 
must prevent or abate the impediment.
            Exotic plants and animals
    The bill addresses a specific concern within the Southern 
Florida Ecosystem, which is not related to any activities of 
the tribe, but which is critical for all of those, like the 
tribe, that are concerned with the health of the Ecosystem. 
Exotic species have caused significant degradation within the 
Everglades. Efforts to address harmful invasion species are a 
significant element of preservation and restoration 
efforts.\20\
---------------------------------------------------------------------------
    \20\ Strange Invaders Known as Exotics, Foreign Animals and Plants 
Tend to be Little More Than Imported Environmental Nightmares, The 
Tampa Tribune, Bay Life, August 12, 1998.
---------------------------------------------------------------------------
            Public access
    The Supreme Court has characterized a tribe's right to 
exclude or condition access to its lands as ``Merrion v. 
Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982). The bill 
recognizes and preserves this important component of tribal 
sovereignty, and makes it clear that the tribe itself has a 
concomitant responsibility not to impede public access to Park 
areas outside of the MRA, and to and from the Big Cypress 
National Park. This should not be construed to require the 
tribe to allow access to the MRA by non-tribal members, except 
to those federal employees, agents, officers, and officials who 
are carrying-out responsibilities under this Act. This point is 
underscored in section 8(b) of the bill.
            Preventing significant cumulative impact
    By stressing that the tribe is to prevent and abate 
significant cumulative environmental impacts, the bill 
accomplishes two objectives. First, it allows all tribal 
activities on lands owned and/or controlled by the tribe to be 
taken into account when assessing their impact. Second, it 
indicates a strong desire that the Tribe and other interested 
parties, including the Park Service, work together to identify 
the full range of activities planned or being considered by a 
tribe and their cumulative impact. The act requires the tribe 
to establish a specific set of procedures to implement this 
process. These procedures balance the tribe's sovereignty with 
the need to protect the unique and delicate everglades 
ecosystem. under the bill, within 12 months the tribe must 
establish a process that ensures that the public receives 
notice and the opportunity to comment on major tribal actions 
within the MRA if those actions may contribute to a significant 
cumulative adverse impacts on the everglades ecosystem.
    The procedures established by the tribe must include a 
means for providing timely written notice to the Secretary and 
consideration of any comments by the Secretary. This 
requirement incorporates the philosophy of the National 
Environmental Policy Act, (NEPA) which imposes a planning, 
disclosure, comment, and response process, in place of specific 
substantive requirements, to prevent and mitigate adverse 
environmental impacts. Through this process, the tribe should 
identify and evaluate both direct and indirect potential 
impacts from the full scope of all segments of the construction 
and related infrastructure. By establishing a comprehensive 
site development plan, for example, the tribe could evaluate 
cumulative impacts of its planned development, thereby enabling 
the tribe, the Secretary, and the public to gain an overall 
understanding of all development and its entire potential 
cumulative impact within having to review any project or 
element independent of any other or on a piecemeal basis. 
Obviously, a major federal action will still require NEPA 
review by the appropriate federal agency.
    The Committee believes that the process established by the 
bill balances the tribe's right to manage its own affairs while 
recognizing that the MRA remains a part of the Park, even 
though it is treated as a reservation. The Miccosukee tribe has 
consistently worked to preserve the everglades ecosystem. With 
this background and commitment, the Committee believes that the 
most effective way to achieve the environmental objectives of 
this bill is to ensure that the tribe creates a process that 
allows it to be informed of the potential impact of its 
activities on the rare, fragile, and interdependent Park 
ecosystem. In this respect, notice to the Secretary and 
consideration of his comments is critical. The Secretary has a 
substantial body of information and expertise at his disposal 
in considering and analyzing the impact of activities on the 
everglades ecosystem.
            Water quality standards
    The bill balances the need to protect the water quality 
within the Park, with the recognition of tribal authority in 
the field of environmental protection in general, and water 
quality protection in particular. See, e.g. 33 U.S.C. 
Sec. 1377(e). The tribe is to adopt and comply with water 
quality standards within the MRA that are at least as 
protective as those established by the State of Florida for the 
everglades and approved under the Clean Water Act by the 
Federal government. Nothing in this bill is intended to be 
construed to limit the tribe's authority to establish on-
reservation water quality standards, in the same manner as 
other Indiantribes. Any water quality standards established by 
the tribe for the MRA may not be more restrictive than the standards it 
may establish for contiguous reservation lands that are not within the 
Park.

Natural easements

    A provision in the bill ensures that the tribe is not 
authorized by this Act to engage in activities within the 
natural easement areas established by the Act that are 
inherently incompatible with their status as natural easements. 
This provision does not divest the Department of Interior of 
any authority it may have to engage in or approve activities 
within the Park, including the easements.

Height restriction

    This provision is an example of how the bill replaces ad 
hoc decision-making with specific standards. Thus, instead of 
forcing the tribe and the Park Service to negotiate about what 
constitutes a reasonable height for facilities in light of the 
tribe's needs and the purposes for creating the Park, the bill 
establishes a general standard, with specific exceptions. 
Nonetheless, it is not the Committee's intent to impose an 
immutable standard that would leave the tribe and the 
Department without any capacity to accommodate needs and 
circumstances that can not be anticipated at this time. Thus, 
the bill allows the Secretary to grant a waiver if it is found 
that the needs of the tribe outweigh the adverse effect on the 
Park.

Gaming

    In general, the Interior Department has indicated that it 
would not support legislation that includes a blanket waiver of 
an Indian tribe's right to conduct gaming operations in 
accordance with the provisions of the Indian Gaming Regulatory 
Act, 25 U.S.C. Sec. 2701 et seq. Similarly, the Committee has 
taken no action to proscribe a specific tribe's right to engage 
in class II or class III gaming. However, in this particular 
case, the MRA remains part of the Park. Also, the Committee 
notes that Congress has already addressed the unique 
circumstances concerning the Miccosukee Indian tribe. Section 
2719(b)(3) of title 25 provides an exception to the IGRA's 
general prohibition on use of trust lands acquired after 
October 17, 1988 for gaming purposes. This exception applies 
solely to the Miccosukee Indian tribe. During the 99th 
Congress, a nearly identical provision was included in a bill 
regulating Indian gaming. The Committee explained the need for 
this provision in a report accompanying that bill. ``The 
Miccosukee Tribe is unique in that its current trust lands are 
located within the Everglades National Wildlife Refuge and thus 
possibility for economic development within the boundaries of 
the Reservation are extremely limited.'' \21\
---------------------------------------------------------------------------
    \21\ S. Rep. 99-483 (Sept. 26, 1986).
---------------------------------------------------------------------------

Aviation

    The bill places a constraint on commercial aviation to or 
from the MRA. It is not intended to prohibit non-commercial 
aviation activities, including such uses as resource management 
or law enforcement.

Visual quality

    Section 6(c)(3) provides that in the planning, use and 
development of the MRA by the Tribe, it shall consider the 
quality of the visual experience from the Shark River Valley 
visitors use area. The Shark River Valley visitor use area is 
one of the most important and strategic portions of the Park 
for visitors to experience the uniqueness of the area. The 
Everglades environment and its wildlife are interpreted in this 
area probably better than anywhere else in the Park. 
Development here has remained relatively simple and primitive.
    There is presently a 15 mile, 2 hour tram tour through the 
Everglades interior. National Park Rangers or experienced tram 
drivers interpret the Park, its wildlife, vegetation and unique 
ecology. Midway through the tour, the tram makes a rest stop at 
Shark Valley Tower, a 50 foot observation tower from which the 
visitor may view the vastness and grandeur of the wilderness. 
Forty percent of the visitors to Everglades National Park stop 
at the Shark Valley area. The tour and tower provide the 
elderly and disabled, in particular, an opportunity to 
experience the Park in a way not provided anywhere else.
    While this legislation anticipates additional tribal 
development in the MRA, it is the Committee's expectation that 
the Tribe will be respectful of, and preserve, the striking 
vistas of Shark Valley. The Tribe must be careful not to 
interfere with the visitor's experience as a result of the 
Tribe's development, especially with respect to billboards or 
other commercial advertisements in this area. Billboard and 
other commercial advertisements should not be visible from the 
Shark Valley visitor center, the tram, and to the greatest 
extent possible the observation tower.

Easements and ranger station

    The MRA is located in a critical environmental area for the 
Everglades National Park. The establishment of specified 
natural easements ensures that the Tribe's perpetual occupancy 
within the MRA does not place the entire MRA beyond the Park 
Service's capacity to preserve and restore the Everglades. 
Thus, the natural easements and the specified water control 
structures remain available for the Park Service to accomplish 
the hydrological or any other environmental objectives of the 
Park. This is generally addressed in section 8(e) of the bill.
    Consistent with these factors, if MRA lands (excluding the 
``natural easements'') are necessary for water quality 
objectives, the bill ensures that the lands within the MRA can 
be made available to the Department. The bill places 
constraints on the availability of this authority. (Section 
8(e)(2)) This authority is only to be utilized if alternative 
measures to achieve the same purposes are found to be 
impractical.
    The map referenced in section 4(3) of the bill depicts the 
natural easements established under section 6(d)(1), the ranger 
station referenced in section 6(d)(3), and the water control 
structures referenced in section 6(d)(4). With respect to the 
natural easements and water control structures, the tribe may 
not construct, develop, or improve in these areas. The extent 
of the Ranger Station is also limited as identified on the map.

Implementation process

    There is evidence to support the tribe's claim that its 
status as a permitee places it in an inherently subordinate 
position in its dealings with the Department of Interior. This 
is incompatible with the federal policy of fostering 
government-to-governmentrelationships between tribes and the 
federal government.
    The bill seeks to resolve the potential areas of 
disagreement that are known at this juncture. By eliminating 
the specter that the tribe's presence occurs at the sufferance 
of the Department, the Committee believes that it has 
established a better framework for the government-to-government 
resolution of any further disagreements that may occur. 
Although the Committee hopes that disagreements may be resolved 
through either reference to the explicit terms of this bill or 
through informal discussions, the Committee has found that 
explicit procedures for nonbinding dispute resolution may also 
be part of a framework for resolving the legitimate conflicts 
that arise between governments with overlapping jurisdictional 
authority. By providing for such a process, the Committee does 
not intend to prevent the tribe or the Department from seeking 
recourse to other dispute resolution processes.

Applicability of this bill

    The Committee notes that the bill is the product of a 
significant amount of effort by the Department, especially the 
Park Service. By approving this bill, the Committee does not 
imply that all conflicts between Indian tribes and federal land 
management agencies are amenable to such resolution. For that 
reason, the Committee does not intend that the terms of the 
bill will create any interest or privileges in any other 
situations.

Federal permits

    This provision ensures that the objectives of this bill are 
incorporated into the responsibilities of any federal agency 
considering a permit for construction or other activities on 
the MRA. This is particularly true of any Sec. 404 permit from 
the Army Corps of Engineers.

Parties held harmless

    This provision is included to ensure that Indian tribes and 
the United States do not become vicariously liable for each 
others actions or inactions as a result of this act. The 
exception with respect to the Indian Self-Determination and 
Education Assistance Act (ISDEA) is concerned with the policy 
of supplementing or displacing liability insurance with Federal 
Tort Claims Act coverage when a tribe contracts to provide 
services under the ISDEA. (See, e.g., P.L. 101-512, Title III, 
Sec. 314.) It is not the Committee's intent with this 
provision, or any other part of the bill, to place the tribe in 
a different position from any other tribe with respect to the 
ISDEA.

Enforcement

    The bill creates rights and interests in both the tribe and 
the United States with respect to the MRA. Although the bill 
provides mechanisms to resolve disputes between the United 
States and the tribe, it is possible that recourse to federal 
court will be necessary to vindicate either tribal or federal 
rights and interests established by this bill. Section 8(i)(2) 
does not provide an independent waiver of the Federal 
Government's existing sovereign immunity and the tribe would 
need to rely on some other statute for such a waiver. At a 
minimum, section 8(i) ensures that otherwise justifiable claims 
will not be dismissed for failure to state a claim upon which 
relief may be granted.
    Litigation between the tribe and the Park could arise as a 
result of a number of matters and in various postures. For 
example, the United States could sue to enforce provisions of 
the bill, the tribe could challenge a federal decision or 
agency ruling, or a case or controversy could involve a dispute 
over the interpretation of a provision. In reporting this 
measure, it is the Committee's expectation that the bill will 
reduce the number of areas where litigation may occur. With 
respect to matters addressed by the bill, the provisions were 
drafted to provide clear guidance to both the tribe and the 
United States, especially the Park Service, for how the tribal 
presence within the Park is to be accommodated with other 
concerns. The Committee expects that the well-founded rights 
defined by this bill and in other federal laws referenced 
herein will be an important consideration in the Department of 
Interior's administration of public resources. The Committee 
notes that this is consistent with long-recognized principles 
of federal Indian law. And the federal government's general 
trust obligation to tribal governments.

                              conclusions

    The Committee finds that the approach taken in the 
legislation is more consistent with federal policy than the 
permit approach. Within the constraints imposed by the bill and 
other federal laws, the tribe shall govern its own affairs 
within the MRA as if the land were a federal Indian 
reservation. The constraints imposed by the bill will preserve 
the Everglades ecosystem and the nature of the Park without 
interfering with the tribe's ability to govern itself, thereby 
accomplishing Congress' goal when it established Everglades 
National Park.

            committee recommendation and tabulation of vote

    In an open business session on July 28, 1998, the Committee 
on Indian Affairs, by voice vote, adopted an amendment in the 
nature of a substitute and ordered the bill, as amended, 
reported to the Senate, with the recommendation that the Senate 
pass S. 1419 as reported.

                      section-by-section analysis

Section 1. Short title

    Section 1 cites the short title of the bill as the 
``Miccosukee Reserved Area Act.''

Section 2. Findings

    Section 2 provides Congressional findings.

Section 3. Purposes

    Section 3 describes the bill's purposes.

Section 4. Definitions

    Definitions are provided for the following terms: 
``Everglades,'' ``Federal Agency,'' ``MiccosukeeReserved 
Area,'' ``Park,'' ``Permit,'' ``Secretary,'' ``South Florida 
Ecosystem,'' ``Special Use Permit Area,'' ``Tribe,'' ``Tribal,'' and 
``Tribal Chairman.''

Section 5. Tribal rights and authority on the Miccosukee Reserved Area

    Section 5(a) terminates the February 1, 1973 permit issued 
to the Miccosukee Indian tribe and any amendments to that 
permit and expands the lands treated as the Miccosukee Reserved 
Area (MRA), which will be treated as though it were a federal 
Indian reservation;
    (b) Establishes that the tribe shall have the right to 
perpetual use of the MRA;
    (c) The MRA shall be considered ``Indian country,'' as that 
term is employed at 18 U.S.C. Sec. 1151;
    (d) The bill does not effect exclusive federal legislative 
jurisdiction in the MRA; nor shall P.L. 280 apply to the MRA;
    (e) The bill does not affect other rights the tribe 
possesses.

Section 6. Protection of Everglades National Park

    (a)(1) Establishing that the MRA remains a part of the 
Park.
    (2) The tribe is responsible for complying with applicable 
laws.
    (3) The tribe is to prevent, abate, and not be the source 
of significant degradation of surface or groundwater, not be 
the source of the significant propagation of exotic plants and 
animals; not prohibit public access to non-MRA parts of the 
everglades; establish water quality standards as protective as 
those approved standards of the State of Florida; nor is the 
tribe to engage in activities within the natural easements.
    (b) The tribe may only construct structures above the 
height restrictions based upon explicit exceptions or a waiver 
granted by the Secretary.
    (c) The tribe may not engage in class II or III gaming (as 
those terms are defined in the Indian Gaming Regulatory Act, 25 
U.S.C. Sec. 2701 et seq.) or commercial aviation within the 
MRA. The tribe is to consider the impact on visitors to the 
Shark Valley visitor use area in developing the MRA.
    (d) Establishes natural easements that may be used for 
hydrological and other environmental objectives; and preserves 
the area presently used as the ranger station.

Section 7. Implementation process

    (a) Encouragement for the tribe and the Secretary to 
establish a process for implementing the act;
    (b) Authorizing the federal mediation and assessment 
service to assist in reaching agreements between the tribe and 
the Secretary;
    (c) Provides that such nonbinding dispute resolution is not 
to exceed 60 days unless the Secretary and the tribe agree to 
an extension;
    (d) Provides that participation in mediation does not 
prejudice either parties ability to access other means for 
resolving a dispute.

Section 8. Miscellaneous

    (a) This bill does not create any right or interest in any 
other circumstance concerning federal public lands;
    (b) Federal officers may access the MRA to ensure 
compliance with the bill and as if it were an Indian 
reservation;
    (c) Federal permits shall only be granted after 
consultation with the Secretary, and no permit shall be issued 
that would be inconsistent with the bill's provisions;
    (d) Volunteer programs involving the tribe may be 
established in cooperation with the tribe;
    (e) Federal authority to preserve and protect the South 
Florida ecosystem is preserved; and the MRA lands may be used, 
under specified circumstances, to achieve these objectives;
    (f) Holds the parties harmless with respect to liability;
    (g) Preserves authority to enter into cooperative 
agreements;
    (h) Holds parties harmless with respect to water rights;
    (i) Authorizes actions by either the tribe or the United 
States to enforce the provisions of the bill.

                    COST AND BUDGETARY CONSIDERATION

    The cost estimate for S. 1419, as amended, as calculated by 
the Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 20, 1998.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs, U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1419, the Miccosukee 
Reserved Area Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                              James L. Blum
                                   (For June E. O'Neill, Director).
    Enclosure.

S. 1419--Miccosukee Reserved Area Act

    S. 1419 would clarify the rights of the Miccosukee tribe of 
Indians to occupy and use land within the boundaries of the 
Everglades National Park. The bill would give the tribe the 
exclusive right to use and develop an area of the park to be 
known as the Miccosukee Reserved Area (MRA) and would terminate 
the special use permit that currently governs the tribe's use 
of this area. The tribe would be responsible for complying with 
environmental and other laws, certain development restrictions, 
commercial restrictions, such as a prohibition against gaming 
on MRA lands, and other conditions established by the bill.
    CBO estimates enacting S. 1419 would have no effect on the 
federal budget. The bill would restate an agreement between the 
federal government and the Miccosukee Indian Tribe. It also 
would provide for compensation to the Miccosukee for water 
restoration projects in the Florida Everglades. Because both 
the projects and compensation are authorized under existing 
law, the bill would have no budgetary impact. S. 1419 would not 
affect direct spending or receipts; therefore, pay-as-you-go 
procedures would not apply. The bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments.
    On August 17, 1998, CBO prepared a cost estimate for H.R. 
3055, the Miccosukee Reserved Area Act, as ordered reported by 
the House Committee on Resources on July 22, 1998. The House 
and Senate bills are similar, and the estimates are identical.
    The CBO staff contact is Deborah Reis. This estimate was 
approved by Paul N. Van de Water, Assistant Director for Budget 
Analysis.

                       REULATORY IMPACT STATEMENT

    Paragraph 11(b) of XXVI of the Standing Rules of the Senate 
requires that each report accompanying a bill to evaluate the 
regulatory paperwork impact that would be incurred in carrying 
out the bill. The Committee believes that S. 1419 will have 
minimal regulatory or paperwork impact.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no official communications from 
the Administration on the provisions of the bill.

                        CHANGES IN EXISTING LAW

    In compliance with subsection 12 of rule XXXVI of the 
Standing Rules of the Senate, the Committee notes that the bill 
will not make any changes in existing law.