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113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-590

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



 
                 GUN LAKE TRUST LAND REAFFIRMATION ACT

                                _______
                                

 September 15, 2014.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Hastings of Washington, from the Committee on Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1603]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (S. 1603) to reaffirm that certain land has been taken 
into trust for the benefit of the Match-E-Be-Nash-She-Wish Band 
of Pottawatami Indians, and for other purposes, having 
considered the same, report favorably thereon without amendment 
and recommend that the bill do pass.

                          PURPOSE OF THE BILL

    The purpose of S. 1603 is to reaffirm that certain land has 
been taken into trust for the benefit of the Match-E-Be-Nash-
She-Wish Band of Pottawatami Indians.

                  BACKGROUND AND NEED FOR LEGISLATION

    S. 1603 ratifies and confirms the trust status of a 147-
acre parcel of land known as the Bradley Property for the Gun 
Lake Tribe of Michigan (also called the Match-E-Be-Nash-She-
Wish Band of Pottawatomi Indians). The Secretary of the 
Interior acquired the land in 2001 in trust for benefit of the 
Gun Lake Tribe using the authority of Section 5 of the Indian 
Reorganization Act of 1934 (IRA, 25 U.S.C. 465). The Bradley 
Property, located in Wayland, Michigan, 24 miles south of Grand 
Rapids, is the location for a casino operated by the tribe 
pursuant to the Indian Gaming Regulatory Act of 1988 (IGRA, 25 
U.S.C. 2701 et seq.). IGRA requires an Indian casino to operate 
on a reservation or trust land. If S. 1603 fails to be enacted, 
the continued operation of the Gun Lake Tribe casino will be 
placed in jeopardy.
    The need for S. 1603 stems from what is now understood to 
be a likely unlawful acquisition of land by the Secretary for 
the Gun Lake Tribe in 2001. In 2009, the Supreme Court 
clarified that Section 5 of IRA does not authorize the 
acquisition of land in trust for a tribe, such as Gun Lake, 
whose members were not recognized and under federal 
jurisdiction on the date of enactment of IRA, or June 18, 1934. 
Carcieri v. Salazar (555 U.S. 379 (2009)).
    The legislative history surrounding the development of IRA 
demonstrates the intent of Congress in Section 5 was to rebuild 
the decimated land base of Indian reservations subjected to the 
operation of the General Allotment Act (Dawes Act) of February 
8, 1887, and related allotment laws enacted in that era of 
federal Indian policy. The allotment-era reservations are well-
known and long-established; they are typically west of the 
Mississippi River in large reservations established under Act, 
treaty, or Executive Order, and characterized by checker-
boarded land ownership stemming from the allotment process 
(distributing 80 or 160-acre allotments to individual Indians 
on the reservation) and the opening of surplus reservation 
lands to non-Indian homesteading.
    Information provided to the Committee by the Department of 
the Interior does not conclusively show that Gun Lake is a 
tribe that was recognized and under federal jurisdiction when 
the IRA was enacted in 1934. Rather, the Department has 
provided scant information to the Committee regarding the 
status of any tribe in 1934 except for legal memoranda and 
various other records of questionable relevancy and accuracy.
    Accordingly, S. 1603 is necessary for the Secretary to 
lawfully hold the Bradley Property in trust. Fortunately, the 
Secretary, agreeing with the need for the bill, supports S. 
1603.
    In addition to declaring the Bradley Property to be held in 
trust, S. 1603 would void a pending lawsuit challenging the 
lawfulness of the Secretary's original action to acquire the 
Bradley Property. The lawsuit, filed by a neighboring private 
landowner named David Patchak, has been dormant for most of the 
last two years since the U.S. Supreme Court upheld Patchak's 
standing to pursue the action. The legislation also forecloses, 
notwithstanding any other provision of law, ``any action . . . 
relating to the land . . .'' (Sec. 2(b)). While this is an 
unusually broad grant of immunity from lawsuits pertaining to 
the Bradley Property, no one has brought any concerns with the 
language to the attention of the Committee.
    Approval of S. 1603 is not intended to validate, or set a 
precedent for validating or ratifying, unauthorized actions 
undertaken by the Secretary, including continuing actions by 
the Secretary which are inconsistent with Carcieri v. Salazar 
(555 U.S. 379 (2009)). The bill does not change general Indian 
law or policy. Rather, it ratifies the trust status of a 
discrete parcel of land. Section 2(c) of S. 1603 expressly 
provides that nothing alters the effect of Carcieri for any 
other action undertaken by the Secretary in the past, present, 
or future.
    S. 1603 is necessary because there is no consensus in 
Congress on how to address Carcieri. Moreover, the Department 
of the Interior's views regarding the need for addressing 
Carcieri are inconsistent. On the one hand, the Department has 
submitted testimony to the committees of jurisdiction declaring 
strongly support for a full reversal of the Supreme Court 
ruling. On the other hand, in 2013 ``the Bureau of Indian 
Affairs [announced that it] approved the 1,200th individual 
application since 2009 for taking land into trust for tribal 
governments, bringing the total to more than 208,000 acres.'' 
(Interior press release, June 27, 2013). This amounts to more 
land taken into trust than by the previous Administration 
during the same time period. The Department cannot say it needs 
a reversal of Carcieri at the same time it is acquiring 
hundreds of thousands of acres of land in trust for tribes 
using the authority of the IRA. Until the conflict between the 
Department's words and actions are reconciled, consideration of 
bills to take specific lands in trust, as long as they have the 
support of the elected representatives for the affected lands, 
tribes, and communities, is the appropriate means of resolving 
trust land matters.

                            COMMITTEE ACTION

    S. 1603 was introduced on October 29, 2013, by Senator 
Debbie Stabenow (D-MI). On June 19, 2014, the bill passed the 
Senate by unanimous consent without amendment. The bill was 
then referred to the Committee on Natural Resources, and within 
the Committee to the Subcommittee on Indian and Alaska Native 
Affairs. On July 15, 2014, the Subcommittee held a hearing on 
the bill. On July 30, 2014, the Natural Resources Committee met 
to consider S. 1603. The Subcommittee on Indian and Alaska 
Native Affairs was discharged by unanimous consent. Congressman 
Paul A. Gosar (R-AZ) offered an amendment designated .184 to 
the bill; the amendment was withdrawn. No further amendments 
were offered and the bill was adopted and ordered favorably 
reported to the House of Representatives by voice vote.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(2)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
403 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for this bill from the 
Director of the Congressional Budget Office:

S. 1603--Gun Lake Trust Land Reaffirmation Act

    S. 1603 would reaffirm the status of lands taken into trust 
by the Department of the Interior (DOI) for the benefit of the 
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians in the 
state of Michigan. The legislation also would prohibit any 
lawsuits related to the trust land. In 2012, the Supreme Court 
ruled that DOI lacked the authority to take nearly 150 acres 
into trust.
    Based on information provided by DOI, CBO estimates that 
implementing the legislation would have no significant effect 
on the federal budget. The legislation would not significantly 
increase the cost of managing tribal trust lands. Enacting S. 
1603 would not affect direct spending or revenues; therefore, 
pay-as-you-go procedures do not apply.
    S. 1603 contains an intergovernmental and private-sector 
mandate as defined in the Unfunded Mandates Reform Act (UMRA) 
because it would end rights of action for public and private 
entities that are currently able to pursue legal actions 
related to the land held in trust for the Match-E-Be-Nash-She-
Wish Band of Pottawatomi Indians. The act would prohibit any 
action relating to the trust land from being brought or 
maintained in a federal court. The cost of the mandate would be 
any forgone compensation that would have been awarded through 
legal actions.
    The state of Michigan and several local governments have 
entered into an agreement with the tribe related to the use of 
the land, and CBO believes it is unlikely that, absent 
enactment of S. 1603, any other public entity would bring an 
action that would result in significant compensation. 
Therefore, CBO estimates the cost of the intergovernmental 
mandate would not exceed the annual threshold established in 
UMRA for such mandates ($76 million, in 2014, adjusted annually 
for inflation).
    Private entities, however, have no such agreement, and S. 
1603 would extinguish all rights to legal actions relating to 
the trust lands. Awards in such claims are in many cases 
limited to the value of the land. Because of the commercial 
properties located on the trust land, the value of awards 
related to those lands could be significant. However, because 
both the number of claims that could be barred or terminated 
and the value of forgone compensation stemming from those 
claims are uncertain, CBO has no basis for estimating the cost 
of the mandate. Therefore, CBO cannot determine whether the 
cost of the private-sector mandate would exceed the annual 
threshold established in UMRA for such mandates ($152 million, 
in 2014, adjusted annually for inflation).
    On June 17, 2014, CBO transmitted a cost estimate for S. 
1603 as ordered reported by the Senate Committee on Indian 
Affairs on May 21, 2014. The versions of the legislation are 
similar, and the CBO cost estimates are the same.
    The CBO staff contacts for this estimate are Martin von 
Gnechten (for federal costs), Melissa Merrell (for the state 
and local impact), and Mann Burnett (for the private-sector 
impact). The estimate was approved by Peter H. Fontaine, 
Assistant Director for Budget Analysis.
    2. Section 308(a) of Congressional Budget Act. As required 
by clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives and section 308(a) of the Congressional Budget 
Act of 1974, this bill does not contain any new budget 
authority, spending authority, credit authority, or an increase 
or decrease in revenues or tax expenditures. Based on 
information provided by the Department of the Interior, CBO 
estimates that implementing the legislation would have no 
significant effect on the federal budget.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to reaffirm that certain land has 
been taken into trust for the benefit of the Match-E-Be-Nash-
She-Wish Band of Pottawatami Indians.

                           EARMARK STATEMENT

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no intergovernmental unfunded mandates. 
The Congressional Budget Office was unable to determine if the 
legislation contained a private-sector mandate as defined under 
Public Law 104-4.

                       COMPLIANCE WITH H. RES. 5

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

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.