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                                                       Calendar No. 249
115th Congress       }                        {              Report
                                 SENATE
 1st Session         }                        {               115-175
======================================================================

 
  TO ALLOW THE CONFEDERATED TRIBES OF COOS, LOWER UMPQUA, AND SIUSLAW 
   INDIANS, THE CONFEDERATED TRIBES OF THE GRAND RONDE COMMUNITY OF 
   OREGON, THE CONFEDERATED TRIBES OF SILETZ INDIANS OF OREGON, THE 
 CONFEDERATED TRIBES OF WARM SPRINGS, AND THE COW CREEK BAND OF UMPQUA 
          TRIBE OF INDIANS TO LEASE OR TRANSFER CERTAIN LANDS

                                _______
                                

                October 17, 2017.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 1285]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1285) to allow the Confederated Tribes of Coos, Lower 
Umpqua, and Siuslaw Indians, the Confederated Tribes of the 
Grand Ronde Community of Oregon, the Confederated Tribes of 
Siletz Indians of Oregon, the Confederated Tribes of Warm 
Springs, and the Cow Creek Band of Umpqua Tribe of Indians to 
lease or transfer certain lands, having considered the same, 
reports favorably thereon with amendments and an amendment to 
the title and recommends the bill, as amended, do pass.

                                PURPOSE

    The bill, S. 1285, would, as amended, allow seven Indian 
tribes in Oregon to purchase, sell, lease, or otherwise convey 
their interests in non-trust real property without approval 
from the federal government. The bill does not apply to the 
tribes' interests in real property that the federal government 
holds in trust. The bill, as amended, applies to the 
Confederated Tribes of the Grand Ronde Community of Oregon, the 
Confederated Tribes of Siletz Indians of Oregon, the 
Confederated Tribes of Warm Springs, the Cow Creek Band of 
Umpqua Tribe of Indians, the Confederated Tribes of Coos, Lower 
Umpqua, and Siuslaw Indians, the Klamath Tribes, and the Burns 
Paiute Tribes.

                               BACKGROUND

    Congress enacted a series of laws from 1790 to 1834,\1\ 
collectively known as the Indian Non-Intercourse Act, to 
regulate trade and commerce with Indian tribes. The Indian Non-
Intercourse Act provides, in pertinent part, that no purchase, 
grant, lease, or other conveyance of lands from any Indian 
nation or tribe of Indians will be valid unless made by treaty 
or convention entered into pursuant to the Constitution.\2\
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    \1\Indian Trade and Intercourse Act of 1790, Pub. L. No. 1-33, 
Sec. 4, 1 Stat. 137, 138 (July 22, 1790); Act of March 1, 1793, Pub. L. 
No. 2-19, Sec. 8, 1 Stat. 329, 330; Act of May 19, 1796, Pub. L. No. 4-
30, Sec. 12, 1 Stat. 469, 472; Act of March 3, 1799, Pub. L. No. 5-46, 
Sec. 12, 1 Stat. 743, 746; Act of March 30, 1802, Pub. L. No. 7-13, 
Sec. 12, 2 Stat. 139, 143; Act of June 30, 1834, Pub. L. No. 23-161, 
Sec. 12, 4 Stat. 729, 730 (codified as amended at 25 U.S.C. Sec. 177 
(2006)). In short, according to the ``right of discovery'' of European 
settlers, Indians were granted the ``right of occupancy'' to their 
lands. Although Indians remained upon their lands, the federal 
government restricted their ability to alienate, or dispose of, those 
lands. See Mohegan Tribe v. State of Connecticut, 638 F.2d 612, 616-17 
(2d Cir. 1980). While the principles of the trust responsibility and 
tribal self-governance now govern Indian land jurisprudence, the 
federal government's to the Non-Intercourse Acts is still a 
consideration in Indian land transactions.
    \2\Id.
---------------------------------------------------------------------------
    The original purpose of the Indian Non-Intercourse Act was 
to ``prevent unfair, improvident, or improper disposition by 
Indians of lands owned or possessed by them to other 
parties.''\3\ Although the purpose of the Indian Non-
Intercourse Act is viewed by some as outdated, the U.S. Supreme 
Court in 2005 noted that the Act ``remain[s] substantially in 
force today . . . [and] bars sales of tribal land without the 
acquiescence of the Federal Government.''\4\ Thus, by virtue of 
the Act, the federal government or a court may vacate the 
disposition of Indian lands made without a federal statute or 
treaty that authorizes the challenged conveyance.\5\
---------------------------------------------------------------------------
    \3\Fed. Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 119 
(1960); see also 73 A.L.R. Fed. 2d 221 (Originally published in 2013).
    \4\City of Sherill v. Oneida Indian Nation of New York, 544 U.S. 
197, 204 (2005).
    \5\See, e.g., Shoshone Indian Tribe of Wind River Reservation, Wyo. 
v. U.S., 672 F.3d 1021 (Fed. Cir. 2012) (invalidating an unauthorized 
lease to a third party for oil and gas production).
---------------------------------------------------------------------------
    This bill, S. 1285, as amended, would allow seven tribes in 
Oregon to sell, lease, transfer, or otherwise convey their 
interests in non-trust real property without federal oversight 
or interference. By eliminating the Indian Non-Intercourse 
Act's requirement that the United States ratify or otherwise 
authorize a conveyance, S. 1285 will eliminate some of the 
difficulties that the Indian Non-Intercourse Act imposes on 
tribes who seek to convey their interests in non-trust real 
property. In recent years, Congress has passed legislation 
exempting certain tribal lands from the proscriptions of the 
Non Intercourse Act.\6\
---------------------------------------------------------------------------
    \6\An Act to allow the Miami Tribe of Oklahoma to lease or transfer 
certain lands, Pub. L. No. 114-27, 130 Stat. 286 (2016); An Act to 
allow the Fond du Lac Band of Lake Superior Chippewa in the State of 
Minnesota to lease or transfer certain land, Pub. L. No. 113-88, 128 
Stat. 1019 (2014); An Act to authorize the Coquille Indian Tribe of the 
State of Oregon to convey land and interests in land owned by the 
Tribe, Pub. L. No. 110-75, 121 Stat. 724 (2007); An Act to authorize 
the Saginaw Chippewa Tribe of Indians of the State of Michigan to 
convey land and interests in land owned by the Tribe, Pub. L. No. 110-
76, 121 Stat. 725 (2007); An Act to provide that land which is owned by 
the Lower Sioux Indian Community in the State of Minnesota but which is 
not held in trust by the United States for the Community may be leased 
or transferred by the Community without further approval by the United 
States, Pub. L. No. 106-217, 114 Stat. 344 (2000).
---------------------------------------------------------------------------

                          NEED FOR LEGISLATION

    This legislation, S. 1285, would allow the aforementioned 
tribes in Oregon greater control over transactions involving 
some of their real property. The legislation is intended to 
remove the uncertainties created by the Indian Non-Intercourse 
Act over Indian land transactions involving non-trust real 
property. Without such clarity, these tribes have difficulty 
securing financing or demonstrating clear title, both of which 
are crucial to successfully executing real estate transactions. 
This bill is intended to facilitate the tribes' ability to 
purchase sell, lease, transfer, or otherwise convey their 
interests in non-trust real property.

                          LEGISLATIVE HISTORY

    On May 25, 2017, Senator Merkley introduced S. 1285, The 
Oregon Tribal Economic Development Act, and the bill was 
referred to the Committee. Senator Wyden is an original co-
sponsor. Representative Peter A. DeFazio (OR-04) introduced an 
identical House companion bill on July 13, 2017, which has been 
referred to the House Committee on Natural Resources 
Subcommittee on Indian, Insular, and Alaska Native Affairs, 
where it awaits further consideration.
    The Committee received testimony from Tony Dearman, the 
Director of the Bureau of Indian Education, at a legislative 
hearing held on July 12, 2017. In his testimony, Mr. Dearman, 
on behalf of the U.S. Department of the Interior, expressed 
support for the legislation.\7\
---------------------------------------------------------------------------
    \7\Legislative Hearing, to receive testimony on the following 
bills: S. 943, S. 1223, and S. 1285. Before the S. Comm. on Indian 
Affairs, 115th Cong. (2017) (testimony submitted by Tony Dearman, 
Director, Bureau of Indian Education--U.S. Department of the Interior).
---------------------------------------------------------------------------
    The Committee considered S. 1285 at a business meeting on 
September 13, 2017. Senator Merkley filed one amendment to the 
bill. The amendment, timely filed and duly considered by the 
Committee, AEG17479, would allow two additional tribes in 
Oregon--the Klamath Tribes and the Burns Paiute Tribes--to 
lease, sell, transfer, or otherwise convey their interests in 
non-trust real property without federal approval. The Committee 
passed S. 1285, as amended, by voice vote and ordered the bill 
to be reported favorably.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 sets forth the short title of this bill as the 
``Oregon Tribal Economic Development Act.''

Section 2. Approval not required to validate land transactions

    Section 2 specifies that the seven tribes included in the 
bill will not be required to obtain federal approval, 
authorization, or ratification should any wish to lease, sell, 
convey, warrant, or transfer any interest in real property.
    Section 2 also provides that nothing in the bill applies to 
land held in trust by the United States for the benefit of any 
of the five tribes identified therein.

                   COST AND BUDGETARY CONSIDERATIONS

    The following cost estimate, as provided by the 
Congressional Budget Office, dated September 25, 2017, was 
prepared for S. 1285:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 25, 2017.
Hon. John Hoeven,
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. 1285, the Oregon 
Tribal Economic Development Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Robert Reese.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 1285--Oregon Tribal Economic Development Act

    S. 1285 would authorize seven Indian tribes located in 
Oregon to lease, sell, or otherwise transfer any real property 
owned by those tribes that is not held in trust by the United 
States for the benefit of those tribes. Under current law, 
those tribes are prohibited from leasing, selling, or otherwise 
transferring any land, whether or not the government holds it 
in trust for their benefit, without specific Congressional 
approval.
    Because S. 1285 would not affect land that has any costs or 
benefits to the federal government, CBO estimates that enacting 
the bill would have no effect on the federal budget.
    Enacting S. 1285 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. CBO 
estimates that enacting S. 1285 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    S. 1285 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act. The 
bill would benefit the Confederated Tribes of Coos, Lower 
Umpqua, and Siuslaw Indians, the Confederated Tribes of the 
Grand Ronde Community of Oregon, the Confederated Tribes of 
Siletz Indians of Oregon, the Confederated Tribes of Warm 
Springs, the Cow Creek Band of Umpqua Tribe of Indians, the 
Klameth Tribes, and the Burns Paiute Tribes by allowing the 
tribes to lease or transfer some land.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 1285 will 
have minimal impact on regulatory or paperwork requirements.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding S. 1285.

                        CHANGES IN EXISTING LAW

    In accordance with Committee Rules, subsection 12 of rule 
XXVI of the Standing Rules of the Senate is waived.

                                  [all]