**TESTIMONY**

**OF**

**[Jerry Gidner]{.smallcaps}**

**[Director, Bureau of Indian Affairs]{.smallcaps}**

**BEFORE THE**

**COMMITTEE ON NATURAL RESOURCES**

**U.S. HOUSE OF REPRESENTATIVES**

**ON**

**H.R. 3522, H.R. 3490, S. 2457, and H.R. 5680**

**April 9, 2008**

Mr. Chairman and Members of the Committee, my name is Jerry Gidner. I am
the Director for the Bureau of Indian Affairs at the Department of the
Interior (Department). I am here today to provide the Department's
testimony on H.R. 3522, a bill to ratify a conveyance of a portion of
the Jicarilla Apache Reservation to Rio Arriba County, State of New
Mexico, pursuant to the settlement of litigation between the Jicarilla
Apache Nation and Rio Arriba County, State of New Mexico, to authorize
issuance of a patent for said lands, and to change the exterior boundary
of the Jicarilla Apache Reservation accordingly, and for other purposes;
H.R. 3490 the Tuolumne Me-Wuk Land Transfer Act of 2007; S. 2457, a bill
to provide for extensions of leases of certain lands by the Mashantucket
Pequot (Western) Tribe; and H.R. 5680, a bill to amend certain laws
relating to Native Americans, and for other purposes.

**[H.R. 3522, a bill to ratify a conveyance of a portion of the
Jicarilla Apache Reservation to Rio Arriba County, State of New Mexico,
pursuant to the settlement of litigation between the Jicarilla Apache
Nation and Rio Arriba County, State of New Mexico, to authorize issuance
of a patent for said lands, and to change the exterior boundary of the
Jicarilla Apache Reservation accordingly, and for other
purposes.]{.underline}**

H.R. 3522 would provide Congressional ratification of a settlement to a
long-standing dispute and court case between the Jicarilla Apache Nation
(Tribe) and Rio Arriba County, New Mexico (County). The settlement
reached by the parties requires Congressional action. The Department
supports this legislation.

This legislation centers around a dispute between the Tribe and County
regarding the ownership status of a road on a parcel of land in Rio
Arriba County, known as the Theis Ranch. The Jicarilla Apache Nation
acquired title to the Ranch in 1985. The United States acquired the
property in trust for the benefit of the Tribe in March 1988 and
proclaimed it part of the Tribe's reservation in September 1988. In
October 1987, the County filed a lawsuit in District Court for the State
of New Mexico, asking the court to determine which entity owned the
road. On December 10, 2001, the District Court determined that the
Jicarilla Apache Nation was the proper owner of the portions of the road
traversing the Tribe's reservation. The County appealed this decision
and the matter is currently pending before the Court of Appeal of the
State of New Mexico, although it has been stayed pending outcome of a
Settlement Agreement reached by the parties during mediation.

The Settlement Agreement was executed by the Tribe and County on May 3
and 15, 2003, respectively, and approved by the Department on June 18,
2003. It would settle all claims in the appeal by removing certain lands
within the Theis Ranch from trust and reservation status and conveying
them to the County. The transferred lands would be subject to
restrictive covenants limiting their use to governmental purposes and
prohibiting their use for prison, jail or incarceration facility.

In order for the Tribe and County's jurisdictional plan to work, the
parcels at issue would be removed from trust and reservation status.
Land can only come out of trust status through Congressional action.
Congressional action would remove the lands from trust status and
realign the Tribe's reservation boundaries, thereby resolving which
entity has jurisdiction over the road. Both the County and Tribe have
performed their respective duties under the Settlement Agreement and it
is ready for Congressional action to remove the subject lands from trust
and reservation status.

The Department supports this bill because it encourages cooperation and
proactive solutions to resolve jurisdictional and land conflicts between
Indian tribes and their neighbors. While the Department does not believe
that removal of land from trust status or diminishment of reservation
boundaries may be an appropriate solution in all future cases, the
Department applauds the work of the parties in reaching this settlement
and supports enactment.

**[H.R. 3490, the Tuolumne Me-Wuk Land Transfer Act of
2007.]{.underline}**

H.R. 3490, the "Tuolumne Me-Wuk Land Transfer Act of 2007" transfers to
the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria lands
currently administered by the Bureau of Land Management (BLM) to be held
in trust by the United States for the benefit of the Tribe. The
Department supports the bill with an amendment.

The Tuolumne Me-Wuk Land Transfer Act represents years of cooperative
effort between the Tuolumne Band of Me-Wuk Indians of the Tuolumne
Rancheria (Tribe) and the BLM.

This bill would transfer three parcels of BLM land to the Tribe. The
Tribe seeks the first tract, an approximately 50-acre parcel, to
establish a cultural center. The second tract, of approximately 15.35
acres, would help meet the Tribe's agricultural, housing, and open space
needs. The third tract, of approximately 0.4 acres, contains a cemetery
where tribal members and other Indians are buried. These scattered
tracts of public lands are adjacent to the current Tuolumne Indian
Rancheria, located just north of the small community of Tuolumne, in
rural northwest Tuolumne County.

The land in question has been managed by the BLM pursuant to a 1983
Management Framework Plan (MFP) for the Tuolumne River Management Area.
The MFP was replaced by the Sierra Resource Management Plan (SRMP)
through a Record of Decision on February 15, 2008. The SRMP clearly
identifies these scattered tract parcels as potentially available for
disposal based on current land uses. Transfer of the three parcels to
the Tribe would therefore conform to the SRMP.

The Department is pleased that H.R. 3490 addresses valid and existing
rights and gaming. However, we are concerned with the 180-day timeline
to complete the survey of the three tracts to determine it they are
ready for transfer. This time period is not sufficient to allow
completion of survey fieldwork. We suggest the language be changed to
"as soon as practicable" or, if a date is determined necessary, perhaps
"90 days following completion of the required fieldwork" since such
fieldwork is not currently scheduled. The timing of completion will
depend on funding availability.

In summary, the Department has had a cooperative working relationship
with the Tuolumne Band of Me-Wuk Indians on this requested land transfer
and supports H.R. 3490 with the above amendment.

**[S. 2457, a bill to provide for extensions of leases of certain land
by the Mashantucket Pequot (Western) Tribe.]{.underline}**

S. 2457 would allow the Mashantucket Pequot Tribe or a Tribal
corporation chartered pursuant to 25 U.S.C. § 477 to lease the Tribe's
restricted fee land with options for extensions of the lease term of
more than the time period currently set forth by statute at 25 U.S.C. §
477.

Section 477 allows certain tribal corporations to lease tribal land for
a term of 25 years. This legislation would allow the Mashantucket Pequot
Tribe to enter into leases for a 25-year term with options to extend the
lease for not more than two additional terms of up to 25 years each.
Approval of the lease extensions would not be subject to Secretarial
approval and would only require approval of the Mashantucket Pequot
Tribal Council. The Department would not be liable for any losses
resulting from the lease renewals. Gaming would also not occur on any
land leased with an option to renew pursuant to this legislation.

There is precedent for this bill's attempt to lengthen the lease period
as several tribes have already received specific exemptions from similar
lease limitations in Section 415(a); those tribes may enter into leases
with 99-year terms with the Secretary's approval. The Mashantucket
Pequot Tribe seeks lease terms that may, with optional extensions, reach
75 years and has demonstrated sound business judgment in its economic
ventures. The Department therefore, supports this legislation.

**[H.R. 5680, a bill to amend certain laws relating to Native Americans,
and for other purposes.]{.underline}**

The Department has concerns with many of the provisions in H.R. 5680 as
currently drafted.

**Annual disbursement to the Colorado River Indian Tribes (CRIT)**

Section 2 of H.R. 5680 provides the Secretary of the Interior discretion
to make an annual disbursement to the Colorado River Indian Tribes
(CRIT) from revenues deposited into the Treasury pursuant to 25 U.S.C.
385c from power operations on the CRIT reservation. The Department of
the Interior opposes this section. Section 2 could divert appropriated
funds intended for the Bureau of Indian Affairs' (BIA) Colorado River
Agency to the CRIT. Such a diversion would be inappropriate because the
funds are not held in trust by the United States and are necessary to
maintain and operate the BIA's power system. In addition, the funds are
the subject of pending litigation recently initiated by CRIT in federal
district court.

The BIA's Colorado River Agency owns and operates irrigation facilities
and a power system along the Colorado River which serves the CRIT
reservation and also provides power to users off the reservation.
Headgate Rock Dam is the centerpiece of this irrigation and power
system. The BIA sells electricity generated by the dam's powerhouse to
users of the power system and sends the revenue it collects to the
United States Treasury. These funds may then be appropriated to BIA for
use on the power system, or other purposes, as authorized by 25 U.S.C.
385c.

It would be inappropriate to disburse these power funds to CRIT, or any
other Indian tribe, because the funds are not a trust asset and neither
CRIT, nor any other tribe, has a beneficial interest in them. Funds
appropriated to the BIA for the Colorado River Agency power system by 25
U.S.C. 385c should not be decreased because they allow BIA to operate
and maintain its power system. Further, section 385c identifies certain
general purposes for which power revenues may be expended, none of which
involve disbursement to a tribe. CRIT has also filed a lawsuit against
BIA in federal court. Section 2 could deplete the power fund contrary to
CRIT's claims in court. For these reasons, the Department opposes
section 2 of H.R. 5680.

**Construction Contracts inclusion to 25 USC 415f, Gila River Indian
Community**

Section 3 of H.R. 5680 inserts new language "or construction contract"
into 25 U.S.C. 415f, where any contract affecting land within the Gila
River Indian Community Reservation may contain a provision for the
binding arbitration of disputes arising out of such contracts. This new
language identifies that "construction contracts" are included within
the meaning of 25 U.S.C. 415f. The Department raises no objection to
this amendment to 25 U.S.C. 415f.

**Sault Ste. Marie Tribe of Chippewa Indians of Michigan and**

**Lac Du Flambeau Band of Lake Superior Chippewa**

**Indians of Wisconsin**

Sections 4 and 5 of H.R. 5680 would allow the Sault Ste. Marie Tribe of
Chippewa Indians of Michigan and the Lac Du Flambeau Band of Lake
Superior Chippewa Indians of Wisconsin, respectively, to transfer,
lease, encumber, or otherwise convey, without further authorization or
approval, all or any part of each Tribe's interest in any real property
that is not held in trust by the United States for the benefit of the
Tribe.

The Non-Intercourse Act, based on a 1763 proclamation of King George III
and originally passed in 1793 by Congress, prohibits the conveyance of
an interest in Indian land from any Indian tribe without the approval of
the United States. There is some dispute whether fee land owned by a
tribe would fall under this prohibition. We urge Congress to clarify
this issue. Clarification will remove obstacles to economic development
opportunities and it will enhance tribal sovereignty.

While we believe each Tribe identified in sections 4 and 5 has the
authority to lease and convey its fee property as anyone else does who
owns land within the United States, sections 4 and 5 of H.R. 5680, as
they speak to the Sault Ste. Marie Tribe of Chippewa Indians of Michigan
and to the Lac Du Flambeau Band of Lake Superior Chippewa Indians of
Wisconsin, would provide important clarification. We do however, express
concern with section 4, subsection (d), which makes the effective date
of the section January 1, 2005 without reason or purpose or other
background information.

**Morongo Tribe Lease Extension**

Section 6 of H.R. 5680 would amend 25 U.S.C. § 415(a) to allow the
Morongo Band of Mission Indians to enter into non-agricultural leases
for the Tribe's restricted fee land with lease terms of not more than 50
years. As noted above, Section 415(a) requires the Secretary of the
Interior to approve leases of restricted land for public, religious,
educational, recreational, residential, business and farming purposes.
Leases of restricted land for non-agricultural purposes are generally
required to contain a lease term of not more than 25 years with the
possibility of an extension for an additional 25 years.

This legislation would insert a provision into Section 415(a) through
which the Morongo Band would be able to enter into leases with an
initial term of up to 50 years upon the Secretary's approval. Several
tribes have already received specific exemptions from these lease
limitations in Section 415(a); those tribes may enter into leases with
99 year terms with the Secretary's approval. The Department supports
this section.

**Cow Creek Band Leasing Authority**

Section 7 of H.R. 5680 would amend 25 U.S.C. § 415(a) to include the Cow
Creek Band of Umpqua Indians in the list of tribes that may enter into
leases of their restricted fee land for terms of up to 99 years subject
to the Secretary's approval. There are already several tribes that are
authorized to enter into leases with such a term in Section 415(a), and
the Department supports the inclusion of the Cow Creek Band into this
group. The Department supports this section of the legislation if
amended to remedy a typographical error in the name of the Tribe.

**New Settlement Common Stock Issued**

Section 8 of H.R. 5680 provides for specific new language that
eliminates existing language that allowed, as an exception, 'the
issuance of such Settle Common Stock by a majority of the class of
existing holders of Settlement Common Stock carrying such rights
separately approve\[d\] the granting of such rights. Further, the new
language would eliminate current language that speaks to 'the articles
of incorporation of the Regional Corporation,' which 'shall be deemed to
be amended to authorize such class vote' consistent with the preceding
granting of such rights, which is provided in the current chapter in the
Alaska Native Claims Settlement Act (ANCSA) 43 U.S.C. Section
1606(g)(1)(B)(iii).

Additionally, the specific new language would eliminate the authority of
transferring Settlement Common Stock as a gift "to a Native or a
descendant of a Native (iii) as an inter vivos gift from a holder to his
or her child, grandchild, great-grandchild, niece, nephew, or ...brother
or sister," which is currently allowed in 43 U.S.C. 1606(h)(1)(C)(iii).

[]{.mark}

The Department expresses concern with Section 8 of H.R. 5680 and seeks
clarification. Section 8 proposes elimination of certain rights of a
"class," as defined in 43 U.S.C. Section 1606(g)(1)(B)(iii), and its
proposed elimination of a gift transfer currently authorized for
Settlement Common Stock under 43 U.S.C. 1606(h)(1)(C)(iii), without
reason or purpose or other background information. In addition, we are
concerned with the potential effect of this section on ANCSA
corporations as business corporations under state law.

**Columbia River Treaty Fishing Access Sites**

Section 9 of H.R. 5680 lifts a restriction that requires funds to be
invested in low earning federally-backed instruments. These investments
tend to yield a lower percentage of earnings, which may be inadequate
for the Tribe's annual Operation and Maintenance needs. This legislation
would allow investment of operation and maintenance funds for the
Columbia River treaty fishing access sites using the prudent investment
standard. Under this provision, the funds might be invested in stocks
that could yield a higher rate of return or that could cause the funds
to lose a significant part of their value. On November 8, 2007, the
Department testified before this Committee on H.R. 3994, the "Department
of the Interior Tribal Self-Governance Act of 2007". In that statement,
the Department testified in opposition to use of the prudent investment
standard. We expressed our concern that if there is a loss to an
investment, services may cease and the federal government may need to
provide more funding and, in essence, pay twice for the program or
project. Current law requires that these funds be invested in
obligations or securities of the United States or securities that are
guaranteed or insured by the United States. The Department has been
working with the Committee staff on this issue and looks forward to
continuing discussions with the Committee.

**Miccosukee Tribe of Indians of Florida**

Section 10 of H.R. 5680 provides that the Secretary shall take certain
lands into trust for the benefit of the Miccosukee Tribe of Indians of
Florida (Tribe) and include it as part of the Tribe's reservation. The
land is described as Tracts A and B of the Kendale Lakes North Section
One, consisting of 229.3 acres in Miami-Dade County, Florida. The land
is currently under consideration as an off-reservation trust land
acquisition by the Eastern Regional Office in accordance with 25 CFR
151, Land Acquisitions. The proposed acquisition is a discretionary
trust land acquisition authorized by Section 5 of the Act of June 18,
1934 (48 Stat. 984, 25 USC 465), as amended.

The Department recognizes Congress' authority to legislatively act on
taking land into trust for the benefit of an Indian tribe. However, the
Department prefers the administrative process for taking land into trust
authorized by Section 5 of the Indian Reorganization Act of 1934 (IRA),
which authorizes the Secretary to acquire land in trust for Indians
"within or without existing reservations." Under these authorities, the
Secretary applies his discretion after consideration of the criteria for
trust acquisitions in our "151" regulations (25 CFR Part 151), unless,
of course, the acquisition is legislatively mandated.

This concludes my prepared testimony. I am happy to answer any questions
the Committee may have.