U.S. GOVERNMENT PUBLISHING OFFICE

35–971 PDF WASHINGTON : 2019

H.R. 312, ‘‘MASHPEE WAMPANOAG TRIBE 

RESERVATION REAFFIRMATION ACT’’; 

H.R. 375, TO AMEND THE ACT OF JUNE 18, 

1934, TO REAFFIRM THE AUTHORITY OF 

THE SECRETARY OF THE INTERIOR TO 

TAKE LAND INTO TRUST FOR INDIAN 

TRIBES, AND FOR OTHER PURPOSES; 

AND DISCUSSION DRAFT OF H.R. ____, 

‘‘RESPECT ACT’’ 

LEGISLATIVE HEARING 

BEFORE THE

SUBCOMMITTEE ON INDIGENOUS PEOPLES OF THE 

UNITED STATES 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED SIXTEENTH CONGRESS 

FIRST SESSION 

Wednesday, April 3, 2019 

Serial No. 116–11 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.govinfo.gov 

or 

Committee address: http://naturalresources.house.gov 
(II) 

COMMITTEE ON NATURAL RESOURCES 

RAU ́ L M. GRIJALVA, AZ, Chair 

DEBRA A. HAALAND, NM, Vice Chair 

GREGORIO KILILI CAMACHO SABLAN, CNMI, Vice Chair, Insular Affairs 

ROB BISHOP, UT, Ranking Republican Member 

Grace F. Napolitano, CA 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Jared Huffman, CA 

Alan S. Lowenthal, CA 

Ruben Gallego, AZ 

TJ Cox, CA 

Joe Neguse, CO 

Mike Levin, CA 

Debra A. Haaland, NM 

Jefferson Van Drew, NJ 

Joe Cunningham, SC 

Nydia M. Vela ́zquez, NY 

Diana DeGette, CO 

Wm. Lacy Clay, MO 

Debbie Dingell, MI 

Anthony G. Brown, MD 

A. Donald McEachin, VA 

Darren Soto, FL 

Ed Case, HI 

Steven Horsford, NV 

Michael F. Q. San Nicolas, GU 

Matt Cartwright, PA 

Paul Tonko, NY 

Vacancy 

Don Young, AK 

Louie Gohmert, TX 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Tom McClintock, CA 

Paul A. Gosar, AZ 

Paul Cook, CA 

Bruce Westerman, AR 

Garret Graves, LA 

Jody B. Hice, GA 

Aumua Amata Coleman Radewagen, AS 

Daniel Webster, FL 

Liz Cheney, WY 

Mike Johnson, LA 

Jenniffer Gonza ́lez-Colo ́n, PR 

John R. Curtis, UT 

Kevin Hern, OK 

Russ Fulcher, ID 

David Watkins, Chief of Staff 

Sarah Lim, Chief Counsel 

Parish Braden, Republican Staff Director 

http://naturalresources.house.gov 

SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES 

RUBEN GALLEGO, AZ, Chair 

PAUL COOK, CA, Ranking Republican Member 

Darren Soto, FL 

Michael F. Q. San Nicolas, GU 

Debra A. Haaland, NM 

Ed Case, HI 

Matt Cartwright, PA 

Vacancy 

Vacancy 

Rau ́l M. Grijalva, AZ, ex officio 

Don Young, AK 

Aumua Amata Coleman Radewagen, AS 

John R. Curtis, UT 

Kevin Hern, OK 

Vacancy 

Rob Bishop, UT, ex officio 
(III) 

CONTENTS 

Page 

Hearing held on Wednesday, April 3, 2019 ........................................................... 1 

Statement of Members: 

Cole, Hon. Tom, a Representative in Congress from the State of 

Oklahoma ...................................................................................................... 6 

Cook, Hon. Paul, a Representative in Congress from the State of 

California ....................................................................................................... 5 

Gallego, Hon. Ruben, a Representative in Congress from the State of 

Arizona ........................................................................................................... 2 

Prepared statement of ............................................................................... 3 

Grijalva, Hon. Rau ́l M., a Representative in Congress from the State 

of Arizona ...................................................................................................... 9 

Prepared statement of ............................................................................... 10 

Keating, Hon. William R., a Representative in Congress from the 

Commonwealth of Massachusetts ................................................................ 7 

Statement of Witnesses: 

Baird, Hon. Jessie Little Doe, Vice Chairwoman, Mashpee Wampanoag 

Tribe, Mashpee, Massachusetts ................................................................... 11 

Prepared statement of ............................................................................... 13 

Fletcher, Matthew, Professor of Law and Director of the Indigenous Law 

& Policy Center, Michigan State University College of Law, East 

Lansing, Michigan ........................................................................................ 56 

Prepared statement of ............................................................................... 58 

Ray-Hodge, Vanessa L., Partner, Sonosky, Chambers, Sachse, Mielke & 

Brownell, LLP, Albuquerque, New Mexico ................................................. 52 

Prepared statement of ............................................................................... 54 

Richards, Claire, Executive Counsel to the Governor, State of Rhode 

Island, Providence, Rhode Island ................................................................ 41 

Prepared statement of ............................................................................... 43 

Routel, Colette, Professor of Law, Mitchell Hamline School of Law, 

St. Paul, Minnesota ...................................................................................... 24 

Prepared statement of ............................................................................... 25 

Questions submitted for the record ......................................................... 33 

Washburn, Kevin, Professor of Law, University of Iowa College of Law, 

Iowa City, Iowa ............................................................................................. 16 

Prepared statement of ............................................................................... 18 

Questions submitted for the record ......................................................... 23 

Additional Materials Submitted for the Record: 

List of documents submitted for the record retained in the Committee’s 

official files .................................................................................................... 139 

Cicilline, David and Langevin, James, Representatives from the State 

of Massachusetts, Testimony for the Record in Opposition ...................... 78 

Mashpee Chamber of Commerce, Support Letter .......................................... 72 

Mashpee Office of Town Manager, Support Letter ........................................ 73 

Town of Mashpee, Support Letter ................................................................... 74 

City of Taunton, Office of the Mayor, Support Letter ................................... 75 

City of Taunton, Mayor Thomas Hoye, Testimony in Support ..................... 76 

Taunton Area Chamber of Commerce, Support Letter ................................. 77 

Submissions for the Record by Rep. Keating 

Akiak Native Community, Support Letter .............................................. 79 

Apache Alliance, Support Letter .............................................................. 80 

ATNI—Affiliated Tribes of Northwest Indians, Support Letter ............ 81 

Big Valley Band of Pomo Indians, Support Letter ................................. 82 
Page

IV 

Submissions for the Record by Rep. Keating—Continued 

Cheyenne River Sioux Tribe, Support Letter .......................................... 83 

Chippewa Cree Tribe of the Rocky Boy’s Reservation, Support Letter 84 

Ft. Sill—Chiricahua—Warm Springs Apache Tribe, Support Letter .... 85 

Grand Traverse Ottawa and Chippewa Indians, Support Letter .......... 86 

Guidiville Indian Rancheria, Support Letter .......................................... 87 

Hualapai Tribe, Support Letter ............................................................... 88 

Jena Band of Choctaw Indians, Support Letter ..................................... 89 

Lac Vieux Desert Band of Lake Superior Chippewa, Support Letter ... 90 

Lower Brule Sioux Tribe, Support Letter ............................................... 91 

Mashantucket Pequot Tribe, Support Letter .......................................... 92 

Massachusetts Congressional Delegation, Support Letter .................... 93 

Massachusetts Senate, Nick Collins, Support Letter ............................. 95 

Massachusetts Senate, Minority Leader, Bruce Tarr, Support Letter . 96 

Massachusetts State Rep. Bradley Jones, Support Letter ..................... 97 

Massachusetts State Rep. Shaunna O’Connell, Support Letter ............ 98 

Massachusetts State Rep. David Vieira, Support Letter ....................... 99 

Mayflower Descendants, Society of, Support Letter ............................... 100 

Mechoopda Indian Tribe, Support Letter ................................................ 101 

Midwest Alliance of Sovereign Tribes, Support Letter .......................... 102 

Mohegan Tribe, Support Letter ................................................................ 103 

NAFOA, Support Letter ............................................................................ 104 

Narragansett Indian Tribe, Support Letter ............................................ 105 

Narragansett Indian Tribe, Chief Stanton, Testimony in Support ....... 106 

National Congress of American Indians, Support Letter ....................... 111 

National Congress of American Indians, Testimony in Support ........... 112 

National Indian Gaming Association, Support Resolution .................... 115 

Native American Rights Fund, Support Letter ...................................... 116 

New England Residents, Support Petition .............................................. 117 

Nez Perce Tribe, Support Letter .............................................................. 118 

Oneida Nation, Support Letter ................................................................ 119 

Otoe Missouria Tribe of Indians, Support Letter ................................... 120 

Pascua Yaqui Tribe, Support Letter ........................................................ 121 

Prairie Island Indian Community, Support Letter ................................. 122 

Pyramid Lake Paiute Tribe, Support Letter ........................................... 123 

Rocky Mountain Tribal Leaders Council, Support Resolution .............. 124 

San Carlos Apache Tribe, Support Letter ............................................... 125 

Shinnecock Indian Nation, Support Letter ............................................. 126 

Spirit Lake Tribe, Support Letter ............................................................ 127 

St. Croix Chippewa Indians of Wisconsin, Support Letter .................... 128 

Stockbridge-Munsee Community, Support Letter .................................. 129 

Suquamish Tribe, Support Resolution ..................................................... 130 

Sycuan Band of Indians, Support Letter ................................................. 131 

Tohono O’odham Nation, Legislative Council, Support Resolution ...... 132 

Tonto Apache Tribe, Support Letter ........................................................ 133 

USET—United South and Eastern Tribes, Support Letter ................... 134 

USET—United South and Eastern Tribes, Testimony in Support ....... 135 

Ute Indian Tribe, Support Letter ............................................................ 137 

Waccamaw Indian Tribe, Support Letter ................................................ 138 

Yankton Sioux Tribe, Support Letter ...................................................... 139 
(1) 

LEGISLATIVE HEARING ON H.R. 312, TO REAFFIRM THE MASHPEE WAMPANOAG TRIBE 

RESERVATION, AND FOR OTHER PURPOSES, 

‘‘MASHPEE WAMPANOAG TRIBE RESERVATION REAFFIRMATION ACT’’; H.R. 375, TO 

AMEND THE ACT OF JUNE 18, 1934, TO REAFFIRM THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO TAKE LAND 

INTO TRUST FOR INDIAN TRIBES, AND FOR 

OTHER PURPOSES; AND DISCUSSION DRAFT 

OF H.R. ____, TO PRESCRIBE PROCEDURES 

FOR EFFECTIVE CONSULTATION AND COORDINATION BY FEDERAL AGENCIES WITH 

FEDERALLY RECOGNIZED INDIAN TRIBES 

REGARDING FEDERAL GOVERNMENT ACTIVITIES THAT IMPACT TRIBAL LANDS AND 

INTERESTS TO ENSURE THAT MEANINGFUL 

TRIBAL INPUT IS AN INTEGRAL PART OF 

THE FEDERAL DECISION-MAKING PROCESS, 

‘‘RESPECT ACT’’ 

Wednesday, April 3, 2019 

U.S. House of Representatives 

Subcommittee on Indigenous Peoples of the United States 

Committee on Natural Resources 

Washington, DC 

The Subcommittee met, pursuant to notice, at 2:31 p.m., in room 

1324, Longworth House Office Building, Hon. Ruben Gallego 

[Chairman of the Subcommittee] presiding. 

Present: Representatives Gallego, San Nicolas, Haaland, 

Grijalva; Cook, Young, and Gosar. 

Also present: Representatives Cole and Keating. 

Mr. GALLEGO. Thank you everybody. The legislative hearing by 

the Subcommittee for Indigenous Peoples will come to order. The 

Subcommittee is meeting today to hear testimony on three bills: 

H.R. 312, H.R. 375, and discussion draft of the RESPECT Act. H.R. 

312, sponsored by Representative Bill Keating, the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act reaffirms the 

trust status of the lands of the Mashpee Wampanoag Tribe in 

Massachusetts. 

H.R. 375, sponsored by Representative Tom Cole, would amend 

the Indian Reorganization Act of 1934 to give the Secretary of the 
2 

Interior the power to take land into trust for all tribes regardless 

of the date of the tribe’s recognition. This is known as the Clean 

Carcieri Fix. 

The discussion draft of the RESPECT Act, sponsored by 

Chairman Rau ́l Grijalva codifies tribal consultation procedures for 

all Federal agencies to follow. It establishes standards, guarantees 

that meaningful and effective tribal consultation occurs when 

Federal agencies are planning activities that impact tribes, and 

provides judicial recourse for tribes when agencies violate their 

consultation obligation. 

Under Committee Rule 4(f), any oral opening statements at hearings are limited to the Chairman and the Ranking Minority 

Member, therefore I ask unanimous consent that all other Members’ opening statements be made part of the hearing record if they 

are submitted to the Subcommittee Clerk by 5 p.m. today, or the 

close of the hearing, whichever comes first. Hearing no objections, 

so ordered. 

I now ask unanimous consent that Representative Cole, 

Representative Keating, and Representative Gosar, who is not here 

but will be joining us, have permission to sit on the dais and 

participate in the hearing if they wish. So ordered. 

HON. RUBEN GALLEGO, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF ARIZONA 

Mr. GALLEGO. Good morning to you all, and a warm welcome to 

all of our witnesses here today. Today, we are examining legislation that addresses two issues at the heart of tribal sovereignty 

and self-governance: tribes’ ability to take land into trust and tribal 

consultation. The acquisition of trust land for the benefit of Indian 

tribes is essential to tribal self-determination, economic development, and the protection of tribal lands for generations to come. 

This is why the Carcieri Supreme Court decision has been so 

disturbing to Indian Country. 

For over eight decades, the Department of the Interior, under 

both Republican and Democratic administrations, had consistently 

construed the Indian Reorganization Act to authorize the placement of land into trust for any tribe, so long as that tribe is 

federally recognized at the time of the trust application. 

However, in 2009, the Supreme Court held in Carcieri v. Salazar 

that only tribes that were under Federal jurisdiction in 1934 were 

eligible to place land into trust, effectively creating a two-tiered 

system for trust land acquisition. 

The uncertainty caused by this decision continues to threaten 

tribal sovereignty to this day. A legislative fix is necessary to 

ensure that we are fulfilling one of our country’s most important 

obligations to Indigenous communities. 

H.R. 375 is that fix. I want to thank the sponsor of the legislation, our colleague from Oklahoma, Mr. Cole, for introducing this 

bill and for testifying here today. Enacting H.R. 375 would restore 

clarity and stability for all federally recognized tribes, regardless of 

their date of recognition. 

One Carcieri consequence that many tribes have faced in the 

aftermath of the decision is frivolous lawsuits on land that they 
3 

have had in trust for years. One such tribe is the Mashpee 

Wampanoag of Massachusetts. 

Like many tribes, for centuries after Europeans came to this continent, the Mashpee were intentionally and systematically rendered 

landless by state and Federal Governments. They have fought long 

and hard since that time to re-establish that which was taken from 

them—a homeland. They did that just in 2015 when the Interior 

Department approved their application to take 320 acres into trust 

for the tribe. 

In 2016, however, a suit was filed in Federal court that challenged Interior’s action based on the Carcieri decision. Although 

the Obama Department of Justice initially sought to defend 

Mashpee land in an appeal, in May 2017, the Trump DOJ 

inexplicably withdrew that appeal. Then on September 7, 2018, 

Interior issued its first Carcieri decision, stripping the tribe of its 

reservation, resulting in the removal of the 2015 trust land from 

the Mashpee territory. 

The legal limbo imposed by this decision has left the Mashpee on 

the brink of disillusion. The Mashpee’s relationship with the 

Federal Government is one of the oldest in the United States, 

dating back to when the Pilgrims landed at Plymouth Rock. I think 

it is a particularly sad statement that 400 years later they still 

have to defend against the attack on their lands. 

H.R. 312 would reaffirm the trust status of the Mashpee lands 

and ensure that these types of attacks on their homeland do not 

continue. I want to thank the sponsor of this legislation, the gentleman from Massachusetts, Mr. Keating, for being here to testify. 

Finally, we come to the issue of tribal consultation. All of us here 

understand the importance of ensuring effective, meaningful consultation with tribal governments before the Federal Government 

takes actions impacting tribal communities. However, time and 

time again, we have heard from tribes about the problems with the 

current consultation framework—namely, that there really isn’t 

one. 

Consultation processes and procedures differ wildly from agency 

to agency and sometimes from region to region within the same 

agency. The result is a myriad of consultation procedures of varying effectiveness, and sometimes no meaningful consultation at all. 

Consultation requirements should be clear and should have the 

force of the law. 

The RESPECT Act would codify a process for government-togovernment tribal consultation and give tribes legal recourse when 

they are denied access to this process. I want to thank Chairman 

Grijalva for his tireless work on this issue and I look forward to 

discussing the proposed legislation with him and our witnesses. 

[The prepared statement of Mr. Gallego follows:] 

PREPARED STATEMENT OF THE HON. RUBEN GALLEGO, CHAIR, SUBCOMMITTEE FOR

INDIGENOUS PEOPLES OF THE UNITED STATES

Good morning to you all, and a warm welcome to all our witnesses here today. 

Today, we are examining legislation that addresses two issues at the heart of tribal 

sovereignty and self-governance: tribes’ ability to take land into trust and tribal consultation. The acquisition of trust land for the benefit of Indian tribes is essential 

to tribal self-determination, economic development, and the protection of tribal 
4 

lands for generations to come. This is why the Carcieri Supreme Court decision has 

been so disturbing to Indian Country. 

For over eight decades, the Department of the Interior, under both Republican 

and Democratic administrations, had consistently construed the Indian Reorganization Act to authorize the placement of land into trust for any tribe, so long as the 

tribe is federally recognized at the time of the trust application. 

However, in 2009, the Supreme Court held in Carcieri v. Salazar that only tribes 

that were ‘‘under federal jurisdiction’’ in 1934 were eligible to place land into trust— 

effectively creating a two-tiered system for trust land acquisition. 

The uncertainty caused by Carcieri continues to threaten tribal sovereignty to this 

day. A legislative fix is necessary to ensure that we are fulfilling one of our 

country’s most important obligations to Indigenous communities. 

H.R. 375 is that fix. I want to thank the sponsor of the legislation, our colleague 

from Oklahoma, Mr. Cole, for introducing this bill and for testifying here today. 

Enacting H.R. 375 would restore clarity and stability for all federally recognized 

tribes, regardless of their date of recognition. 

One Carcieri consequence that many tribes have faced in the aftermath of the decision is frivolous lawsuits on land that they have had in trust for years. One such 

tribe is the Mashpee Wampanoag of Massachusetts. 

Like many tribes, for centuries after Europeans came to this continent, the 

Mashpee were intentionally and systemically rendered landless by state and Federal 

Governments. They have fought long and hard since that time to re-establish that 

which was taken from them: a homeland. They did just that in 2015, when the 

Interior Department approved their application to take 320 acres into trust for the 

Tribe. 

In 2016, however, a suit was filed in Federal court that challenged Interior’s 

action based on the Carcieri decision. Although the Obama Department of Justice 

initially sought to defend Mashpee’s land in an appeal, in May 2017, the Trump 

DOJ inexplicably withdrew the appeal. 

Then, on September 7, 2018, Interior issued its first Carcieri decision stripping 

a tribe of its reservation, resulting in the removal of the 2015 trust land from 

Mashpee territory. 

The legal limbo imposed by this decision has left the Mashpee on the brink of dissolution. The Mashpee’s relationship with the Federal Government is one of the oldest in the United States, dating back to when the Pilgrims landed at Plymouth 

Rock. I think it’s a particularly sad statement that 400 years later they still have 

to defend against attacks on their lands. 

H.R. 312 would reaffirm the trust status of Mashpee lands and ensure that these 

types of attacks on their homeland do not continue. I want to thank the sponsor 

of the legislation, the gentlemen from Massachusetts, Mr. Keating, for being here 

today to testify. 

Finally, we come to the issue of tribal consultation. All of us here understand the 

importance of ensuring effective, meaningful consultation with tribal governments 

before the Federal Government takes actions impacting tribal communities. 

However, time and time again, we have heard from tribes about the problems with 

the current consultation framework—namely, that there really isn’t one. 

Consultation processes and procedures differ widely from agency to agency, and 

sometimes from region to region within an agency. The result is a myriad of 

consultation procedures of varying effectiveness—and sometimes no meaningful consultation at all. Consultation requirements should be clear and should have the 

force of law. 

The RESPECT Act would codify a process for government-to-government tribal 

consultation and give tribes legal recourse when they are denied access to this important process. I want to thank Chairman Grijalva for his tireless work on this 

issue, and I look forward to discussing the proposed legislation with him and our 

witnesses. 

I would now like to recognize the Ranking Member, Mr. Cook, for his opening 

statement. 

Mr. GALLEGO. I would now like to recognize the Ranking 

Member, Mr. Cook, for his opening statement. 
5 

STATEMENT OF HON. PAUL COOK, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. COOK. Thank you, Mr. Chairman. I want to apologize for 

being late. I was on the way over and I got run down in a crosswalk by some guy with Alaskan plates. 

[Laughter.] 

Mr. COOK. So, I continued my journey, hobbled up here and so 

once again, I am always certainly cognizant of the time constraints. 

As you mentioned, the Subcommittee will receive testimony 

today on two bills and a draft bill. And from the outset, I want to 

express my support for H.R. 375 and H.R. 312 because they bring 

all tribes, including the Mashpee Tribe, onto an even footing with 

all the other tribes for having land acquired in trust under the 

Indian Reorganization Act of 1934. 

Section 5 of the Indian Reorganization Act—and I have in here 

the IRA, I am sorry, the Irish in me, I think that is a very dangerous phrase, but I will go with the flow—it authorizes the 

Secretary of the Interior to acquire any interest in land or water 

to be held in trust for an Indian tribe now under Federal jurisdiction. In 2009, the Supreme Court resolved the lawsuit, resolved by 

Rhode Island Governor Carcieri, holding that the tribe now under 

Federal jurisdiction refers only to those tribes that were under the 

Federal jurisdiction of the United States when the Indian 

Reorganization Act was enacted in 1934. 

H.R. 375, sponsored by Mr. Cole, would reverse the Supreme 

Court ruling through an amendment to the Indian Reorganization 

Act. This bill would provide that any federally recognized Indian 

tribe, regardless of its status when the IRA was enacted in 1934, 

may have lands taken in trust under the authority of the subject 

Act. This bill creates certainty for tribal government that wish to 

use their lands for economic development and other tribal 

purposes. 

The second bill, H.R. 312, sponsored by our colleague from 

Massachusetts—and he is still gloating over the two wins that they 

had in baseball and football, but we won’t mention that—Mr. 

Keating, looks to ratify and confirm previous actions, made by the 

Secretary of the Interior during the Obama administration, to acquire land in trust for the Mashpee Tribe, just as Mr. Cole’s bill 

aims to do for all tribes. 

The Mashpee Tribe, one of the two federally recognized tribes in 

Massachusetts, was granted Federal recognition by the Department 

of the Interior in 2007, but its status has since been challenged due 

to the ruling. These two bills, H.R. 375 and H.R. 312, would put 

many tribes on the pathway to better health, better education and 

great self-reliance, a goal shared by tribes, by the Federal Government, and I hope by everyone in this room. 

The Federal Government has charged itself with moral obligations of the highest responsibility and trust toward tribes. It has 

quoted in the Seminole Nation v. United States 1942—and 

Congressman Young, I was not born then, I was born much later 

and I won’t share that information with you—by allowing the impacts of the Carcieri decision to stand without remedy. For a 

decade, Congress has abandoned the trust responsibility for many 
6 

tribes by allowing the impacts of that decision to stand without 

remedy for a decade. 

Congress, both Republicans and Democrats, have abandoned that 

trust responsibility for many tribes. The solution here demands 

more than grandstanding. It is a complex issue—boy, I could 

underscore that—that demands our attention and diligence to get 

it right. Taking land into trust is perhaps the most important tool 

for tribes to improve the lives of their members, provides to them 

the modicum of the resources that the United States took from 

them through the deliberate policies of discrimination, forced relocation and other humiliations during the darkest periods of 

American history in tribal relations. 

The final bill is one that is sponsored by the Chair and this 

would prescribe procedures between Federal agencies—and I’m 

being gaveled down I guess—thank you, Mr. Chairman for my 

abbreviated remarks. 

Mr. GALLEGO. I apologize, Ranking Member Cook, that was just 

in jest. 

Mr. COOK. I was just going to praise the Chair. 

Mr. GALLEGO. Well, we don’t need that. I thank you, Ranking 

Member Cook. 

Now I would like to welcome distinguished Members of Congress 

who wish to testify on the bills they have sponsored. 

First, I welcome our colleague from the great state of Oklahoma, 

Representative Cole, to speak on his bill, the Clean Carcieri Fix, 

H.R. 375. 

Next, we have the honorable gentleman from the Commonwealth 

of Massachusetts, Representative Keating, to testify on behalf of 

his legislation, H.R. 312, which would reaffirm to protect the 

Mashpee Tribal Reservation. 

And last, by no means least, the Chairman of the Natural 

Resources Committee, Representative Grijalva from Arizona, who 

will speak to his proposed tribal consultation legislation, the 

RESPECT Act. 

Thank you, sirs, for your testimony. Mr. Cole and Mr. Keating, 

you are welcome to join us on this dais and ask questions of the 

witnesses, but I know you have a very busy schedule so we understand if you must leave us. 

I would now like to recognize Representative Cole for 5 minutes. 

STATEMENT OF HON. TOM COLE, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF OKLAHOMA 

Mr. COLE. Chairman Gallego, Ranking Member Cook, and members of the Committee, thank you for giving me the opportunity to 

testify. I appreciate you holding today’s hearing on H.R. 375, legislation that would amend the Indian Reorganization Act of 1934, 

and reaffirm the authority of the Secretary of the Interior to take 

land into trust for Indian tribes. 

Between the passage of the Dawes Act in 1887 and the passage 

of the Indian Reorganization Act in 1934, the Indian land mass in 

the United States shrank by 86 million acres. Since the enactment 

of that law, the Department of the Interior has taken back only approximately 9 million acres of land into trust status. Tribes have 

used their trust lands to build community facilities such as schools, 
7 

health centers and housing that served their tribal members. This 

land is also used for tribal enterprises and promotes economic development in communities that are often underserved and poverty 

stricken. 

In 2009, the Supreme Court of the United States overturned 

long-existing precedent in its decision on Carcieri v. Salazar. The 

Supreme Court rules specifically that the Secretary’s authority to 

hold land in trust for tribal governments under the Indian 

Reorganization Act was limited only to recognized tribes ‘‘now 

under Federal jurisdiction’’ with the word ‘‘now’’ meaning June 18, 

1934, the date of the enactment of the Indian Reorganization Act. 

Previously, lower courts viewed the word ‘‘now’’ as the instant 

when the Secretary invoked their trust acquisition authority. However, the Supreme Court reversed lower courts’ ruling on how the 

term ‘‘now,’’ ‘‘now under Federal jurisdiction,’’ Section 19 of the 

Indian Reorganization Act, was to be interpreted. It found that the 

phrase refers only to those tribes that were under the Federal 

jurisdiction of the United States when the Indian Reorganization 

Act was enacted in 1934. As a result of the Carcieri decision, the 

Secretary of the Interior may no longer use the Indian Reorganization Act to acquire trust land for any post-1934 tribe without 

specific authorization from Congress. 

Because the Secretaries acquired lands in trust for dozens of 

tribes recognized after 1934, the Carcieri ruling calls into question 

the validity of the trust status of such lands and jeopardizes their 

immunity from state and local taxation and regulatory jurisdiction. 

Many tribes have been forced into court to defend the status of 

their trust land, costing them millions of dollars and compromising 

their investments and jurisdiction. 

H.R. 375 would amend the Indian Reorganization Act and clarify 

the language of the Supreme Court ruled upon by striking the term 

I previously referenced and inserting the words ‘‘effective beginning 

on June 18, 1934.’’ It would also amend the statute language from 

‘‘any recognized tribe now under Federal jurisdiction’’ to ‘‘any 

federally recognized Indian tribe.’’ The modest changes clarify that 

the Secretary does have the authority to take land into trust for 

any tribe that the Federal Government has recognized. 

As a member of the Chickasaw Nation and co-chair of the 

congressional Native Caucus with my good friend, your fellow 

Committee Member, Representative Haaland, I commend the 

Subcommittee for moving forward with this legislation and 

certainly its willingness to address this important issue. 

Thank you very much, Mr. Chairman, and I am prepared to 

answer any questions at the appropriate time. 

Mr. GALLEGO. Thank you, Representative Cole. Now we will have 

Representative Keating from Massachusetts for 5 minutes. 

STATEMENT OF HON. WILLIAM R. KEATING, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF 

MASSACHUSETTS 

Mr. KEATING. Thank you, Mr. Chairman. And in terms of your 

opening remarks, Ranking Member Cook, don’t be sorry for the 

Irish in you. It is a badge of honor. 
8 

Thank you, Chairman Gallego, Ranking Member Cook, the distinguished members of the Committee for inviting me to speak 

today about H.R. 312, the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act. 

As you know, this bipartisan legislation would direct the Department of the Interior to keep 320 acres of Mashpee Wampanoag 

land in southeastern Massachusetts in trust as federally recognized 

reservation land. The Mashpee Wampanoag Tribe has called southern New England their home for more than 12,000 years. Many of 

us know them as the tribe that welcomed the Pilgrims to 

Plymouth, Massachusetts for the first Thanksgiving. Sadly, like so 

many Native Americans, the Mashpee Wampanoags have experienced a long, tragic history of injustices, injustices that continue to 

this day. 

After a decade’s long legal battle, the Mashpee Wampanoag Tribe 

finally won Federal recognition from the Department of the Interior 

in 2007. This distinction granted long overdue access to important 

Federal resources that are now vital to the tribe’s existence. The 

tribe leverages its Federal support to provide adequate housing, 

offer employment opportunities and operate numerous essential 

services including law enforcement, native language learning, preK education, health care, counseling and many other things. 

In further recognition of their important place in our history, in 

September 2015, the Department of the Interior supported the 

Mashpee Wampanoag’s Tribe in their plan to acquire land in 

Taunton, Massachusetts with the goal of placing into a Federal 

trust. However, as this Committee understands better than most, 

the Supreme Court’s interpretation of the Indian Reorganization 

Act of 1934 in Carcieri v. Salazar resulted in great uncertainty for 

Native American tribes around the country. Like many others, the 

Mashpee Wampanoag Tribe’s Federal recognition was placed at 

grave risk. 

Additionally, in September 2018, the Department of the Interior 

decided to reverse course and end its support for the Mashpee 

Wampanoag Tribe in an ongoing legal challenge to the status of its 

Taunton Reservation. This reversal has exposed the tribe to the unprecedented fate of having their land taken out of Federal trust. To 

this day, they remain the only federally recognized tribe in New 

England for which Congress has not acted to create and protect a 

reservation. 

It is for these reasons that H.R. 312 is so important. This legislation draws on precedents set by this House in both the 113th and 

115th Congresses to lift the Carcieri cloud over Mashpee 

Wampanoag’s Tribe’s existence and direct the Department of the 

Interior to consider them fully recognized for the purposes of the 

Indian Reorganization Act. This would ensure the Department can 

retain the Mashpee land in trust without issue or challenge providing safety and security at a time when the tribe finds itself on 

the brink of extinction. 

Under normal circumstances, legislation like H.R. 312 would 

pass the House without a hint of opposition. In the 113th Congress, 

the Gun Lake Trust Land Reaffirmation Act received overwhelming support by both parties. In the 115th Congress, the 

Thomasina E. Jordan Tribes of Virginia Federal Recognition Act 
9 

passed unanimously by voice vote. Both of these Acts became law, 

each under a different president’s administration. 

Unfortunately, due to economic factors outside the tribe’s control, 

the Mashpee Wampanoag’s status has become needlessly contentious. Put simply, the state of Rhode Island has decided that 

protection of their casino revenue is more important than the longterm existence of the Mashpee Wampanoag Tribe. 

The opposition to H.R. 312 is grounded in the belief that Rhode 

Island’s decision to build near the Massachusetts State line should 

grant them territorial rights that extend over that border and into 

the Commonwealth of Massachusetts. Nothing in legislation grants 

a tribe any special permissions pertaining to the construction of the 

casino. H.R. 312 would not grant the Mashpee Wampanoag any 

new or special rights. It merely ensures that the Mashpee 

Wampanoag Tribe is treated equally alongside other Native 

American tribes and is no longer vulnerable to having its land 

taken out of trust. 

It is important to note that the Massachusetts State Government 

has already approved a casino development in the region regardless 

of whether the tribe operates it or not. Rhode Island knows full 

well that a private developer has bid for a separate project just up 

the road from the tribe’s reservation. A casino is coming to southeastern Massachusetts no matter what, so why deal a death blow 

to this tribe? 

Mr. Chairman, Mr. Ranking Member, thank you for this timely 

hearing. As you know, the Mashpee Wampanoag Tribe finds themselves in an extremely dire and uncertain situation as the Federal 

recognition sits in limbo. Time is of the essence. 

Also, I ask for unanimous consent to introduce into the record 54 

documents in support of H.R. 312, including a letter from the entire Massachusetts House Delegation urging support for an issue 

entirely within Massachusetts borders. These materials also 

include support from individual tribes from around the entire country, tribal coalitions, local government, local business organizations, and members of the Massachusetts State Legislature. 

To paraphrase one of the letters in these materials I place before 

you, our country would not be what it is without the help of the 

Mashpee Wampanoag Tribe providing the Mayflower passengers 

help nearly 400 years ago. Today, we must do our part to honor 

the Mashpee Wampanoag legacy and take one small step toward 

returning the favor. 

I thank the Committee and I yield back. 

Mr. GALLEGO. Thank you, Representative Keating. And now we 

will have Chairman Rau ́l Grijalva. 

STATEMENT OF HON. RAU ́ L M. GRIJALVA, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. GRIJALVA. Thank you, Mr. Chairman. The goals of the legislation are simple and straightforward: effective, meaningful tribal 

consultation as a matter of law. This has been a top priority since 

I came to Congress. 

This bill originally came out of the frustration and obstacles that 

tribes have faced when it comes to agency actions that affect tribes. 

It came out of conversations and meetings I had with tribal leaders 
10 

over the years, where I heard of the issues that arise between 

tribes and the Federal Government when tribes are not respected 

as the sovereign nations that they are. 

Congress has never established standards for the Federal 

Government to follow when it takes actions that affect tribal 

communities, despite the fact that this is part of our trust responsibility. As the Chairman stated, the current lack of a unified framework has a myriad of consultation procedures, each different from 

agency to agency, and the process is even more cumbersome when 

multiple agencies are involved. And much too often, Federal agencies have already decided on a course of action and then consult 

with tribes by simply notifying them of that agency decision. 

Much of the confusion and conflict between the Federal Government and Indian tribes can be traced back to a lack of clear guidelines for meaningful consultation. The legislation sets forth detailed 

procedures for the timing, format, implementation, and documentation of executive agency consultation with tribes. 

It also protects sensitive tribal information, such as the location 

of sacred sites and other details of cultural and religious practices, 

and instructs agencies to recognize tribal sovereignty and minimize 

agency involvement in tribal affairs. 

Finally, it provides judicial recourse for tribes when Federal 

agencies fail to fulfill their consultation obligation. Promoting 

meaningful government-to-government consultation will create 

long-lasting efficiencies, reduce project delays, help avoid legal 

battles, and help fulfill the legal obligations of the Federal Government by ensuring tribal nations have a voice at the table. 

There is a reason this is a discussion draft at this time. I want 

to hear from the experts on the issue and Indian Country on the 

best way to implement this proposal. As I have said before, the 

ideas for Indian Country come from Indian Country, and as such, 

I look forward to a good discussion on the legislation, to hear the 

thoughts and ideas from our witnesses and others. 

I want to thank you, Mr. Chairman, for bringing this item up, 

and I yield back the remainder of my time. 

[The prepared statement of Mr. Grijalva follows:] 

PREPARED STATEMENT OF THE HON. RAU ́ L M. GRIJALVA, CHAIR, COMMITTEE ON

NATURAL RESOURCES

Thank you, Mr. Chairman. 

The goals of my bill are simple and straightforward—effective, meaningful tribal 

consultation as a matter of law. This has been one of my top priorities since I came 

to Congress. 

This bill originally came out of the frustration and obstacles that tribes have faced 

when it comes to agency actions that affect tribes. It came out of the conversations 

I had with tribal leaders over the years, where I heard of the issues that arise between tribes and the Federal Government when tribes are not respected as the 

sovereign nations they are. 

Congress has never established standards for the Federal Government to follow 

when it takes actions that affect tribal communities, despite the fact this is part of 

our trust responsibility. 

As the Chairman stated, the current lack of a unified framework has in a myriad 

of consultation procedures—each different from agency to agency, and the process 

is even more cumbersome when multiple agencies are involved. And much too often, 

Federal agencies have already decided on a course of action and then ‘‘consult’’ with 

tribes by simply notifying them of the agency decision. 

Much of the confusion and conflict between the Federal Government and Indian 

tribes can be traced back to a lack of clear guidelines for meaningful consultation. 
11 

The legislation sets forth detailed procedures for the timing, format, implementation, and documentation of executive agency consultation with tribes. 

It also protects sensitive tribal information, such as the location of sacred sites 

and other details of cultural and religious practices, and instructs agencies to recognize tribal sovereignty and minimize agency involvement in tribal affairs. 

Finally, it provides judicial recourse for tribes when Federal agencies fail to fulfill 

their consultation obligation. Promoting meaningful government-to-government consultation will create long-lasting efficiencies, reduce project delays, help avoid legal 

battles, and help fulfill the legal obligations of the Federal Government by ensuring 

tribal nations have a voice at the table. 

There is a reason this is a discussion draft at this time. I want to hear from 

experts on the issue and in Indian Country on the best way to implement this proposal. As I have said before—the best ideas for Indian Country come from Indian 

Country. As such, I look forward to a robust discussion on the bill and to hear the 

thoughts and ideas from our witnesses. 

Thank you, Mr. Chairman, and I yield back. 

Mr. GALLEGO. Thank you, Mr. Chairman. Thank you, gentlemen, 

for your testimony. Mr. Cole, Mr. Keating, you are welcome to join 

us on the dais and ask questions of the witnesses, but I know you 

have a busy schedule, so we understand if you must leave us. 

Will the next panel please take your seats? Our first witness for 

this panel is the Honorable Jessie Little Doe Baird, ViceChairwoman of the Mashpee Wampanoag Tribe. Next is Mr. Kevin 

Washburn, Dean and Professor of Law at the University of Iowa 

and former Assistant Secretary for Indian Affairs at the U.S. 

Department of the Interior for the Obama administration. Then we 

have Ms. Colette Routel, Director of the Indian Law Program and 

Professor of Law at the Mitchell Hamline School of Law. And finally, we have Ms. Claire Richards, Executive Counsel to the 

Governor of Rhode Island. 

Let me remind the witnesses that under our Committee Rules, 

they must limit their oral statements to 5 minutes, that their entire statement will appear in the hearing record. When you begin, 

the lights on the witness table will turn green. After 4 minutes, the 

yellow light will come on. Your time will have expired when the red 

light comes on, and I will ask you to please complete your statement. I will also allow the entire panel to testify before we start 

questioning the witnesses. 

The Chair now recognizes the Honorable Jessie Little Doe Baird 

to testify. 

STATEMENT OF HON. JESSIE LITTLE DOE BAIRD, VICE CHAIRWOMAN, MASHPEE WAMPANOAG TRIBE, MASHPEE, 

MASSACHUSETTS 

Ms. BAIRD. Good afternoon, Chairman Gallego, Ranking Member 

Cook, and distinguished members of the Subcommittee. Greetings 

and thanks also to our great champions, Representatives Bill 

Keating and Joe Kennedy. 

[Speaking native language.] My name is Jessie Little Doe Baird. 

I am from the Mashpee Wampanoag Nation and I am the Vice 

Chairwoman for the Mashpee Wampanoag Tribe. I hold a Master 

of Science in Linguistics from MIT and I am also a 2010 

MacArthur Genius Fellow. I come before you today on behalf of the 

Mashpee Wampanoag Tribe. My tribe is facing the unthinkable: 

the dis-establishment of our reservation, the collapse of our 
12 

government, and the loss of many of our public services. Congress 

has the power to prevent this with the bipartisan Mashpee 

Wampanoag Reservation Reaffirmation Act. Thank you so much for 

holding this hearing today. 

Until 2015, we were the only federally acknowledged tribe in 

New England without Federal trust lands of our own. All others 

have individual Acts of Congress that provide them with reservation lands. In contrast, Mashpee had to ask the Secretary of the 

Interior to take land into trust for us under the general authority 

Congress gave him under the Indian Reorganization Act. 

In 2015, with the strong support of the Commonwealth of 

Massachusetts, the city of Taunton, and the town of Mashpee, the 

Interior took land in trust for the tribe and proclaimed it as our 

reservation. However, rather than defending its original decision 

and litigation challenging it, in September 2018, the Interior, instead, issued a new decision based on a different legal theory that 

has called into question whether the tribe is eligible for the IRA 

at all. This creates the very real possibility that our land will be 

taken out of trust altogether and our reservation dis-established, 

something that has not happened since the Termination Era. 

The threat to our reservation status has had devastating consequences for my people. Without congressional action confirming 

that the IRA applies to Mashpee, not only will we lose our current 

reservation, we will never have any reservation. This uncertain 

status of our reservation has forced us to borrow thousands of dollars every day to keep basic government functions running. 

We have been forced to lay off 40 percent of our work force, and 

tribal unemployment is on the rise. The tribes had to shut down 

or severely scale back vital government programs. The tribe had to 

cut its police force by two-thirds and has drastically reduced tribal 

Court staff. We already have a severe housing shortage, and 43 

tribal homes under construction right now have been jeopardized 

by the uncertain status of our reservation. We have lost our 

Federal funding for natural resource protection, costing the tribe 

an estimated $1.2 million already. We have had to shut down our 

critically needed addiction treatment service programs at a time 

when Wampanoag people are 400 times more likely to die of an 

opioid overdose than non-Wampanoag people in our region. Our 

internationally recognized Wampanoag language immersion school, 

Mukayuhsak Weekuw, is situated on the reservation. If we lose the 

reservation status, we lose that school status. Our tribe suffers 

from having only a 51 percent high school graduation rate. Our 

language immersion school is vital to increasing our citizens’ graduation rate and reducing substance abuse and suicide rates. 

We are not asking Congress to do something it has not already 

done before. In the 113th Congress, Congress passed the Gun Lake 

Trust Land Reaffirmation Act which reaffirmed a prior trust acquisition for that tribe. Congress also enacted legislation for the 

Virginia tribes that expressly made the IRA applicable to them, 

just like the Mashpee Reservation Reaffirmation Act would do for 

us. 

H.R. 312 is supported by the town of Mashpee, the city of 

Taunton, and our state government. It also has wide support from 

Indian Country, including the National Congress of American 
13 

Indians, and major regional pantribal organizations as well as dozens of individual tribes. It also has widespread support from our 

local Chambers of Commerce and the Mayflower Society. 

We are aware that the state of Rhode Island opposes our legislation. The immediate damage that Carcieri v. Salazar did to the 

great Nation of the Narragansett Tribe, our sisters and neighbors, 

in the first instance, and the broader damage that case inadvertently has inflicted on the rest of Indian Country in these last 10 

years has been terrible. Now the state of Rhode Island seeks to 

reach across the state line into Massachusetts to crush the hopes 

and dreams of my nation. 

Respectfully, we request that Rhode Island consider the gravity 

of its behavior and reconsider its position. We are grateful that the 

Committee is considering H.R. 375, the Clean Carcieri Fix bill. We 

strongly support this legislation and we thank sponsors Representative Cole and Representative Betty McCollum, but with great 

respect the impact of the Carcieri decision on our tribe is now immediate. Finally, since time immemorial, the Mashpee Wampanoag 

and the land have been inseparable. We have been on the land 

where Creator placed us, and this is true today as it was 400 years 

ago. 

Mr. GALLEGO. Vice Chairman, please wrap up. 

Ms. BAIRD. I’m happy to answer any questions you may have. 

[The prepared statement of Ms. Baird follows:] 

PREPARED STATEMENT OF THE HON. JESSIE LITTLE DOE BAIRD, VICE CHAIRWOMAN, 

THE MASHPEE WAMPANOAG TRIBE ON H.R. 312 

INTRODUCTION

Good afternoon, Chairman Gallego, Ranking Member Cook, and distinguished 

members of the Subcommittee. My name is Jessie Little Doe Baird and I am the 

Vice Chairwoman of the Mashpee Wampanoag Tribe. I also bring greetings from our 

Chairman, Cedric Cromwell. Our Tribe is suffering from the assault on our reservation and on our very status as Indians. For this reason we urge swift passage of 

the bipartisan bill H.R. 312, the ‘‘Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act.’’ The damage done to our Tribe during the years in which the 

status of our reservation has been thrown into doubt is beginning to reach catastrophic levels. Accordingly, we urge Congress to treat Mashpee fairly, and to act 

with all due haste to protect our reservation from further assault. 

Joining us in urging swift passage are the city of Taunton, the Town of Mashpee, 

Massachusetts State Representative Shauna O’Connell (R-Taunton), Massachusetts 

State Representative David Vieira (R-Mashpee), Massachusetts State Senator Nick 

Collins (D-Suffolk), Massachusetts House Republican Leader Brad Jones 

(Middlesex), and Massachusetts Senate Republican Leader Bruce Tarr (Gloucester), 

the Mayflower Society, the Mashpee Chamber of Commerce, the Taunton Chamber 

of Commerce, the Southeastern Massachusetts Building Trades Council, and Dimeo 

Construction Company. 

Also joining us in urging passage of the legislation are the National Congress of 

American Indians, the National Indian Gaming Association, the United South and 

Eastern Tribes, the Apache Alliance, Rocky Mountain Tribal Leaders Council, 

Affiliated Tribes of Northwest Indians, the Midwest Alliance of Sovereign Tribes, 

the Akiak Native Community, the Tohono O’odham Nation, the Pascua Yaqui Tribe, 

the San Carlos Apache Tribe, the Tonto Apache Tribe, the Hualapai Tribe, the 

Mechoopda Indian Tribe, the Big Valley Band of Pomo Indians, the Sycuan Band 

of the Kumeyaay Nation, the Guidiville Indian Rancheria, the Ione Band of Miwok 

Indians, the Mashantucket Pequot Tribe, the Mohegan Tribe, the Nez Perce Tribe, 

the Jena Band of Choctaw Indians, the Grand Traverse Band of Ottawa and 

Chippewa Indians, Lac Vieux Desert Band of Lake Superior Chippewa, Chippewa 

Cree Tribe of the Rocky Boy’s Reservation, the Shinnecock Indian Nation, the 

Standing Rock Sioux Tribe, the Ft. Sill Apache Tribe, the Otoe Missouri Tribe of 

Indians, the Kaw Nation, the Narragansett Indian Tribe, the Yankton Sioux Tribe, 
14 

the Cheyenne River Sioux Tribe, the Lower Brule Sioux Tribe, the Ute Indian Tribe, 

the Suquamish Tribe, the Stockbridge-Munsee Band of Mohican Indians, the Oneida 

Nation, the St. Croix Tribe of Chippewa Indians, the Native American Rights Fund, 

the Native American Finance Officers Association. 

Since time immemorial, the Mashpee Wampanoag and the land upon which we 

were placed by Creator have been inseparable. We are one and the same. This fact 

is no less true today than it was some 400 years ago when the Wampanoag granted 

Indian land title to the Pilgrims—the land they used to form Plymouth Colony. Yet 

by the time our Federal recognition was restored to us in 2007, we were a landless 

tribe with no Federal reservation. This is in part because we are the only federally 

recognized tribe in New England for which Congress has not enacted legislation 

providing for a federally-protected reservation. For this reason, the Tribe had to rely 

on the general authority to acquire land in trust and proclaim reservations that 

Congress gave to the Secretary of the Interior in the Indian Reorganization Act 

(IRA). Through enactment of H.R. 312 Congress would finally act for Mashpee too, 

placing us, finally, on an equal footing with other federally recognized tribes. 

OVERVIEW OF ‘‘THE MASHPEE WAMPANOAG TRIBE RESERVATION REAFFIRMATION ACT’’ 

(H.R. 312)

The purpose of the Mashpee Wampanoag Reservation Reaffirmation Act is to reaffirm the status of the Tribe’s reservation and ensure that the Tribe will not be treated as some kind of second class tribe that has a lesser status under the IRA than 

other federally recognized tribes. This is a bipartisan bill with the singular, straightforward purpose of protecting our reservation. 

The language of the bill tracks language from two other tribal bills that already 

have been enacted by Congress, the Gun Lake Restoration Act (S. 1603, passed in 

the 113th Congress) and the Indian Tribes of Virginia Recognition Act (H.R. 984, 

passed in the 115th Congress). Subsection (a) tracks language from the Gun Lake 

statute, and it confirms the status of the Tribe’s reservation. Subsection (b) also 

tracks language from the Gun Lake legislation, and it serves put an end to the costly, painful litigation plaguing the Tribe regarding the status of its reservation. 

Finally, subsection (c) tracks language from the Virginia Tribes recognition statute, 

and makes clear that the Tribe will be treated equally with other federally recognized tribes under the IRA. 

Just 6 months ago in the 115th Congress, this Subcommittee held a hearing on 

the predecessor bill (H.R. 5244). There, the bill received positive feedback and bipartisan support. At that hearing, the Department of the Interior raised no objections 

to the bill in its written testimony, and in fact committed to working with the 

Subcommittee on moving the bill forward. The only difference between H.R. 5244 

and H.R. 312 is that some additional language requested by the Town of Mashpee 

and agreed to by the Tribe has been added to the bill to acknowledge the existence 

of a now long-standing intergovernmental agreement between the Town and the 

Tribe that is also referenced in the Tribe’s Record of Decision. 

H.R. 312 does not provide any new or special rights to Mashpee. This bill merely 

asks Congress to exercise its plenary authority over Indian affairs to ensure that 

the Tribe will be treated the same as other federally recognized tribes by protecting 

the Tribe’s existing reservation. A tribal land base is crucial for the exercise of tribal 

sovereignty, and for the protection and continuation of tribal culture, and represents 

the foundation for tribal economic development. Like other federally recognized 

tribes, we have the right to exercise our tribal sovereignty within our reservation. 

Preservation of our reservation allows our tribal government provide services and 

protection to our citizens through tribally operated and funded programs. Having 

reservation land where we can generate tribal revenue increases our self-sufficiency 

and decreases our dependence on Federal funding and grants. 

THE UNCERTAIN STATUS OF MASHPEE’S RESERVATION IS CAUSING CATASTROPHIC HARM

TO THE TRIBE AND INDIVIDUAL CITIZENS

As a result of the legally uncertain status of our reservation, Mashpee has been 

forced to borrow thousands of dollars every day to keep basic government functions 

running. The uncertain trust status of Mashpee’s reservation is causing our tribal 

government to move ever closer to shutting down. Mashpee has been forced to lay 

off 41 percent of its work force, the overwhelming majority comprised of Tribal 

citizens, and Tribal Council members are performing their governmental duties 

without pay. Tribal unemployment is on the rise. The Tribe has been forced to shut 

down or severely scale back many vital government programs. 

For example, the Tribe essentially has had to dissolve its police force with the exception of one patrol officer and we have had to reduce tribal court staff. Presently, 
15 

we have 43 homes under construction on our reservation lands that will be lost if 

our reservation goes out trust—this will be devastating given our severe housing 

shortage. We have also faced the loss of Federal funding that allows us to partner 

with the Town of Mashpee to our shared water ways and forests. This funding loss 

has cost the Tribe an estimated $1.2 million to carry out our natural resources development initiatives and programs in conjunction with the Town of Mashpee. 

Particularly painful, we have had to shut down our critically needed addiction treatment services programs at a time when Wampanoag people are 400 times more 

likely to die of an opioid overdose than non-Wampanoag people. 

Our nationally recognized Wampanoag language immersion school serves preschool and school aged children with a planned expansion to fourth grade. Because 

this school is situated on reservation lands, the removal of trust status while not 

only disrupt the curriculum but also the children that have been attending since the 

age of four. Presently, the Tribe suffers from having only a 51 percent high school 

graduation rate. Our language immersion school is vital to increasing our citizens’ 

graduation rate and reducing substance abuse and suicide rates. These are only a 

few examples of the desperately needed tribal government programs that Mashpee 

has been forced to drastically scale back or completely shut down. 

Finally, if the Department acts to take Mashpee’s reservation out of the trust, not 

only will Mashpee lose its jurisdiction over the land and have to further reduce 

tribal programs, Mashpee will also likely lose the land itself as a result of not being 

able to pay state taxes on the 321 acres. 

ENACTMENT OF H.R. 312 WILL PROVIDE CRITICAL ECONOMIC DEVELOPMENT

OPPORTUNITIES TO SOUTHEASTERN MASSACHUSETTS AND RHODE ISLAND

The city of Taunton and Town of Mashpee both strongly support H.R. 312. Both 

have submitted letters and testimony in support of H.R. 312 and its predecessor bill 

H.R. 5244. We have entered into intergovernmental agreements with both governments. Our communities and our futures are intertwined. In our intergovernmental 

agreements we have come together both protect certain areas from development, 

and to foster mutually beneficial economic growth in other areas. For example, if 

the status of our reservation is confirmed through enactment of H.R. 312, we will 

be able to use our reservation to bring over 7,000 jobs to the area (including to the 

state of Rhode Island). The Tribe has committed to $30 million in upgrades to the 

Taunton water system and roadways, $10 million per year to local first responders 

and Taunton city services, and $65 million per year to the state for broader community development initiatives that will benefit the entire state. Once implemented, 

these commitments will represent the single largest urban renewal effort in Southeastern Massachusetts in a generation. If our reservation is disestablished, we will 

not be able to honor these commitments. 

ARGUMENTS MADE BY THE STATE OF RHODE ISLAND

The state of Rhode Island, in a letter from Governor Gina Raimondo, argues that 

the Mashpee Reservation Reaffirmation Act ‘‘undercuts’’ the plain language of the 

Indian Reorganization Act, although the Governor fails to explain how this is true 

or identify the part of the statute to which she refers. She also insists that the Act 

‘‘undercuts’’ the Supreme Court’s decision in Carcieri v. Salazar. Respectfully, 

United States Constitution unequivocally endows the U.S. Congress with plenary 

authority over all matters relating to Indian Affairs. If Congress deems it appropriate to save the Mashpee Indian Tribe’s reservation and to stop this senseless, 

soul-crushing litigation over whether Congress did or did not mean to include 

Mashpee among the tribes that should benefit from the Indian Reorganization Act 

of 1934, it acts well within its constitutional authority. The idea that in enacting 

the IRA Congress relinquished its own authority to acquire land for Indians or to 

determine which Indian tribes it wishes to make eligible for the IRA is legally 

incorrect. 

Not only is acquiring land in trust for Mashpee not contrary to the plain language 

of the IRA, but it is entirely consistent with the framers’ intention that the IRA 

would benefit some tribes, like Mashpee, that had been forced into landlessness by 

centuries of anti-Indian Federal policies which stripped tribes of their lands. See, 

e.g., S. Rep. No. 1080, 73d Cong., 2d Sess., at 1 (1934) (declaring that one of the 

‘‘purposes of this bill’’ was to ‘‘provide for the acquisition, through purchase, of land 

for Indians, now landless, who are anxious and fitted to make a living on such 

land’’); H.R. Rep. No. 1804, 73d Cong., 2d Sess., at 6 (1934) (noting that the IRA 

would help to ‘‘make many of the now pauperized, landless Indians self 

supporting’’). 
16 

What the Governor does not say in her letter is that the state of Rhode Island 

has acknowledged in a market study commissioned by the Rhode Island Department 

of Revenue that ‘‘a substantial portion of Rhode Island gambling revenues are contributed by Massachusetts residents.’’ Christiansen Capital Advisors LLC, Rhode 

Island Gaming and State Revenue Forecast, Oct. 31, 2017, at 19. These commercial 

casinos pay 60 percent of their revenue to the state and are the third largest source 

of Rhode Island’s revenue. See American Gaming Association, State of States 2018: 

AGA Survey of the Commercial Casino Industry, at 103; Katherine Gregg, Twin 

River owners, R.I. pols join chorus against Taunton tribal casino bill, The 

Providence Journal, Sep. 5, 2018. The state’s interest in whether Mashpee’s reservation is reaffirmed is not about jurisdiction or checker-boarding—the state’s interest 

is in protecting the revenue stream it is receiving from Massachusetts residents. We 

value our neighbors in Rhode Island and we would like to have a good working relationship with them, just as we do with our local governments. But we would be remiss in not pointing out the immediate damage that Carcieri v. Salazar did to the 

Narragansett Tribe in the first instance, and the broader damage that case inadvertently has inflicted on the rest of Indian Country in these last 10 years. Now 

the state of Rhode Island seeks to reach across the state line into Massachusetts 

to crush the hopes and dreams of my Tribe. Respectfully, we request that Rhode 

Island consider the gravity of its actions and reconsider its position. 

CONCLUSION

No other tribe in the United States currently faces the very real threat of having 

its reservation disestablished over a legal technicality. H.R. 312 is an emergency 

measure by which Congress can act to resolve this otherwise meaningless legal technicality to provide legal certainty not just to the Tribe, but also to our surrounding 

communities. We ask Congress to protect our inherent right to govern ourselves as 

the sovereign that was here long before Europeans arrived; the sovereign that 

granted lands to the first settlers; the sovereign that is still here taking care of our 

Mashpee Nation today. 

With respect and gratitude, I thank you for your time today. I am happy to 

answer any questions you may have. 

Mr. GALLEGO. Perfect. Thank you, Vice Chairwoman. The Chair 

now recognizes Mr. Kevin Washburn to testify. 

STATEMENT OF KEVIN WASHBURN, PROFESSOR OF LAW, 

UNIVERSITY OF IOWA COLLEGE OF LAW, IOWA CITY, IOWA 

Mr. WASHBURN. Chairman, Ranking Member, Chairman 

Grijalva, Ms. Haaland, who represents my former home, it is good 

to see you, and former Chairman Young, I have missed you these 

past few years. 

[Laughter.] 

Mr. GALLEGO. OK, with objection, I am ruling that out of order. 

[Laughter.] 

Mr. WASHBURN. I would like to also thank Tom Cole, my cousin 

from the Chickasaw Nation, and Betty McCollum. I would first like 

to talk about H.R. 375, that is bipartisan legislation that both of 

them have pushed for quite a while and it would be great to get 

this done. I won’t repeat many of the things that Tom Cole has already said, and you have my written testimony, but I just would 

like to make a couple of points about H.R. 375, the Carcieri fix bill, 

and that is this: No Member of Congress and no Federal policy 

maker would have designed a system that has two classes of tribes 

for land into trust. If we started from scratch, that is not what we 

would do; we would treat tribes the same. 

And, indeed, in 1994, Congress passed legislation demanding 

that tribes be treated the same for all purposes under the IRA, the 

Indian Reorganization Act. So, no one would have come up with 
17 

this system from scratch and we have been living with it because 

of an erroneous Supreme Court decision that, frankly, was not well 

thought out. 

The question really is, should tribes recognized since 1934 be 

able to have housing? Should they be able to have police stations 

and fire stations and lands for agriculture? Should they be able to 

have economic development and infrastructure? And the answers to 

all those questions are, of course, they should. 

During the Obama administration, the administration, I think, 

accepted something like more than 2,000 acres, or parcels of land 

in trust encompassing well over 500,000 acres, and that is because 

those tribes needed that land and that was really important to the 

Obama administration to try to make that happen. 

Perhaps the best of H.R. 375 is that it would reduce a lot of unnecessary litigation and a lot of bureaucratic resources that are 

being wasted. I am dean of a law school, I am all for fullemployment acts for lawyers, but that is really what H.R. 375 is 

and, frankly, there is plenty of work for lawyers in Indian Country 

without having to do so much work to try to meet the requirements 

of Carcieri. I think that we have a lot more better use of work by 

the hardworking Indian lawyers in Indian Country than to try to 

keep dealing with this issue, and you guys could correct that real 

easily by passing this bill. 

Since the 1990s, there has been a requirement that each year the 

Federal Government publish the list of tribes that are recognized. 

It would have been nice if we had had that in 1934. That would 

have saved a lot of this work for tribes. But the fact is there is no 

tribe that exists today that did not exist in 1934. We don’t create 

tribes out of whole cloth in this country. We spend a lot of time 

working on the reformation of that tribal recognition process, and 

those tribes have always existed and so they deserve to have land 

if they have existed. So, I would respectfully urge the Committee 

to try to move H.R. 375 through the House. 

Let me move briefly to the RESPECT Act, Chairman Grijalva’s 

bill. I strongly believe in the need for consultation as a matter of 

law, as he described it. We have had at least two decades of careful 

policy making around tribal consultation. It has become a strong 

Federal norm that tribes should be consulted on the matters that 

affect them, and it really has become part of the way we do business in the Federal Government with regard to Indian Country. It 

is a norm that does not get applied evenly across administrations, 

however. 

I actually in some ways don’t like the RESPECT Act because it 

puts a lot of requirements in place before the Federal Government 

can act, and I guess I am little libertarian, I don’t like putting a 

whole lot of additional requirements on the Federal Government 

because it will also keep them from doing good things. 

That said, I think what we have seen is that we need something 

like the RESPECT Act, and I am grateful for Chairman Grijalva 

for proposing it. There are a lot of good things that it does. One 

is that it forces consultation. Since it forces consultation, that 

means that it also wraps in independent Federal agencies, such as 

the Federal Energy Regulatory Commission and the National 

Labor Relations Board and those sort of agencies. I think that is 
18 

1For identification purposes only. The testimony presented here is made in an individual 

capacity and it not made on behalf of the University of Iowa or any other institution. 

important because those agencies have not always been good about 

consulting with tribes. And a President’s Executive Order can’t 

reach those agencies in the same way. 

Why don’t I stop there? My time is about up, but I will be happy 

to answer questions in a little while if need be. 

[The prepared statement of Mr. Washburn follows:] 

PREPARED STATEMENT OF DEAN KEVIN K. WASHBURN, UNIVERSITY OF IOWA

COLLEGE OF LAW1 ON H.R. 375 AND THE RESPECT ACT

Chairman, Ranking Member, and members of the Committee. Thank you for 

asking me to appear before you to testify about two bills in the Committee’s 

jurisdiction, H.R. 375, and the RESPECT Act. 

Testimony on H.R. 375 

I appeared before House or Senate committees in the 112th, 113th and 114th 

Congresses, on behalf of the Obama administration, to seek a clean Carcieri-fix. It 

is an honor to appear before a Committee of the 116th Congress in an individual 

capacity but with the same goal. 

Background: The Need for a Carcieri Fix 

One of the greatest long-standing injustices in the history of the United States 

is the theft of land from Indian tribes during the better part of the first two centuries of this Nation’s existence. The loss of native land reflects a wide gulf between 

our claim to be a just nation and the truth buried in our Nation’s history. Since 

1787, however, this country has been committed to improving and has sought earnestly, I believe, to become a ‘‘more perfect union.’’ It is in that spirit of idealism 

that I appear before you today. 

In the decades prior to the enactment of the Indian Reorganization Act (IRA) 

during the ‘‘Indian New Deal’’ in 1934, tribes lost more than 90 million acres of land 

in the continental United States. It was recognition of the scope of this tragic loss 

that caused Congress to take action. In the IRA, Congress gave the executive branch 

the authority to take land into trust and thereby restore land to tribes. 

The land into trust process unfolded very gradually over the ensuing decades. It 

is a slow and cumbersome bureaucratic process. In most instances in which land is 

taken into trust for tribes, the tribe has re-purchased land that previously were 

taken, often illegally. One might think that requiring tribes to repurchase lands 

that had once been stolen from them would only compound the injustice, but tribes 

are grateful to have the land restored as sovereign territory even if they must use 

their own limited resources to accomplish it. 

To supercharge the slow process of finally addressing the long-standing injustice 

of the theft of Indian lands, President Barack Obama made restoration of tribal land 

a central priority of his administration. By the time I joined the administration near 

the end of Obama’s first term in 2012, the Obama administration had already taken 

approximately 180,000 acres of land into trust for tribes. 

By the time President Obama left office in 2017, approximately 362,000 acres 

more had been taken into trust across Indian Country, for a total of 542,000 acres 

of land acquired during the Obama administration. In addition, more than 2.3 

million cumulative acres of trust land have been restored to tribes through the 

Cobell settlement’s fractionated interest buy-back program, an initiative that continues today. These efforts constitute the most successful efforts to reverse tribal 

land loss in American history. 

The Obama administration also took two other key actions related to ‘‘land into 

trust.’’ One was the so-called ‘‘Patchak Patch,’’ which eliminated a 30-day waiting 

period for implementation of land into trust decisions. Under the Patchak Patch, 

once the Department made a decision to take land into trust, usually after months 

or years of processing an application, the land would go into trust immediately. 

Though an opponent could still challenge the decision in administrative or judicial 

litigation, the land would be in trust pending the outcome of the litigation, which 

often stretches for years. The Patchak Patch thus prevented the strategic and abusive use of litigation to delay the implementation of a land into trust decision that 

would benefit a tribe. The current administration has indicated that it is interested 

in revisiting this rule. The other key Obama action in the area of land into trust 
19 

was the removal of a long-standing Federal regulatory prohibition on taking land 

into trust for tribes in Alaska. The current administration has indicated that it is 

also interested in revisiting the Alaska rule. 

The aggressive restoration of land to tribes during the Obama administration 

went a long way toward laying the foundation for a better government-togovernment relationship between the United States and tribal nations. 

The Supreme Court’s 2009 decision in Carcieri v. Salazar was an early setback. 

The Carcieri opinion ruled unlawful the Secretary of the Interior’s effort to take 31 

acres of land into trust for the Narragansett Tribe of Rhode Island for a housing 

project. 

Issued just 1 month after President Obama’s inauguration, Carcieri was erroneously decided and has had pernicious effects in Indian Country. A significant 

problem with Carcieri is that it misinterpreted the Indian Reorganization Act to 

make an arbitrary and unwarranted distinction between tribes. As a result of the 

decision, some tribes are unable to petition the Federal Government to have land 

restored to them through the land into trust process. The decision was a misinterpretation of law and there is no rational policy basis for treating some tribes 

differently. 

The Carcieri decision was troubling in part because it failed to respect congressionally defined norms of Federal Indian policy which had been expressed just a few 

years earlier. Indeed, in 1994, Congress had expressed a desire that the IRA be applied in the same manner to all tribes. At that time, Congress clarified that no 

Federal agency should make any determination under the IRA ‘‘with respect to a 

federally recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes by virtue of their status as Indian tribes.’’ P.L. 103–263 (1994). The 

Secretary’s efforts for the Narragansett, however, were entirely consistent with the 

congressional direction to treat tribes similarly under the IRA. It is for this reason 

that many believe Carcieri was out of step with Federal policy and wrongly decided. 

When Carcieri was issued, President Obama realized that it had the potential to 

derail his important policy goal of restoring land to Indian tribes. President Obama 

personally called on Congress to enact a Carcieri-fix in November 2013 and directed 

his staff before and after that time to seek a Carcieri-fix. 

Because of the high priority of restoring lands for all tribes, the Obama administration also developed a legal strategy to limit the Carcieri decision to its facts and 

to use other tools in the same statute. This strategy was successful for at least one 

tribe, but it has failed for at least one other. 

A central flaw in Carcieri’s reasoning is this: every tribe that is federally recognized today necessarily existed in when the IRA was enacted in 1934. The reason 

some tribes were not then formally recognized in 1934 is obvious, at least from a 

historical perspective. The massacres at Wounded Knee (1890) and Sand Creek 

(1864) were still fresh in oral histories and the deeply scarred memories of native 

people. Many Indian communities remained in hiding and working hard to avoid 

attention from the Federal Government. 

In the time since 1934, the United States has become somewhat safer for native 

communities, and tribes eventually started coming out of the shadows. Congress has 

extended Federal recognition to dozens of tribes since 1934 and the executive branch 

has recognized a few more. Efforts were made in Congress and the executive branch 

to treat tribes on an equal basis, except where Congress, treaties or other laws required otherwise. 

This is why Carcieri was unwelcome to Federal Indian policy makers. It divided 

tribes into ‘‘haves’’ and ‘‘have nots.’’ Because the land into trust process is slow and 

bureaucratic, the full impact of Carcieri has not become known yet. For numerous 

tribes recognized since 1934, however, Carcieri feels like a ticking time bomb. 

According to the late Professor William Rice, writing shortly after the opinion was 

issued, Carcieri ‘‘will create a cloud upon the trust title of every tribe first recognized by Congress or the executive branch after 1934, every tribe terminated in the 

termination era that has since been restored, and every tribe that adopted the IRA 

or OIWA and changed its name or organizational structure since 1934. It will also 

result in incessant litigation to determine which of the over 500 tribes fall within 

its terms and prohibit future trust acquisitions for such tribes as are finally found 

to be within its net.’’ Wm. Rice, The Indian Reorganization Act, the Declaration on 

the Rights of Indigenous People, and a Proposed Carcieri ‘‘Fix,’’ 45 Idaho L. Rev. 

575, 594 (2009). 

In sum, Carcieri has the potential to spawn endless litigation about past land acquisitions and block future acquisitions. Carcieri remains a serious problem that 

draws an arbitrary and unwelcome line though Indian Country. 
20 

The Carcieri decision has been on the books now for 10 years. It is unlikely that 

it will be corrected by the Supreme Court. I would respectfully urge Congress to explain that it meant what it said in 1994 and amend the IRA to provide absolute 

clarity that the Secretary of the Interior has authority to restore land for all 

federally recognized tribal nations in the United States. 

Views on H.R. 375 

I wish to begin by expressing my appreciation to Representatives Tom Cole and 

Betty McCollum for continuing to press in a bipartisan way for this important legislation. Representatives Cole and McCollum have worked together—across the 

aisle—to resolve this important issue for several years. The passage of H.R. 375 has 

the potential to be a wonderful example of bipartisanship in a divided Congress. 

I am also grateful to the Committee leadership for giving this bill a hearing. It 

is the hope of many people in Indian Country that the recent change in the makeup 

of the committees and the leadership positions will allow the bill to advance and 

address this long-standing injustice. 

H.R. 375 is an elegant way of addressing Carcieri v. Salazar. It is a model of 

clarity and simplicity and would fully address the problems highlighted above. 

H.R. 375 has three important features that are crucial to clarifying the IRA and 

remediating the harm caused by Carcieri. First, it strikes from the IRA the confusing term, ‘‘now under federal jurisdiction,’’ making it more obvious that the land 

into trust provisions have broad application to all federally recognized Indian tribes, 

no matter when they achieved Federal recognition. Second, it makes the amendment 

retroactive to the original date of enactment of the IRA in 1934. This insures proper 

authorization for all actions to take land into trust since that time and prevents unnecessary and fruitless litigation about whether authority existed at the time the 

land was taken into trust. Finally, H.R. 375 amends the definitions section of the 

IRA to make it even more clear that the Secretary of the Interior has authority to 

take lands in trust for tribal nations in Alaska. 

Testimony on the RESPECT Act 

Tribal consultation has been an important part of Federal Indian policy throughout history and has been revitalized in recent years. I will first provide context for 

the recent developments in tribal consultation and then discuss the bill in this 

context. 

Background: Executive Order 13175 and Modern Tribal Consultation 

Activity that can be described as tribal consultation has existed since the first 

days of the American republic. Over the course of nearly two centuries, governmentto-government relationships that began as arms-length treaty negotiations slowly 

transformed into a very paternalistic relationship denoted by the concept of a 

Federal trust responsibility to tribes. 

Tribal governments reawakened politically in the 1960s and 1970s and embraced 

newly revitalized efforts at tribal self-government. A new government-to-government 

relationship between the Federal Government and tribes began to form. By the 

1990s, tribal governments had earned greater political salience, both within their 

communities and externally. They were becoming stronger partners for the Federal 

Government. 

In a series of orders and memoranda issued throughout his presidency, President 

Bill Clinton embraced and gradually strengthened the general norm of Federal consultation with tribal governments. Colette Routel and Jeffrey Holth, Toward 

Genuine Tribal Consultation, 46 Univ. of Mich., L.L. Reform 417, 442–43 (2013). 

This steady development of policy culminated, on November 6, 2000, when Clinton 

issued Executive Order 13175. The order directed agencies to engage in consultation 

and coordination with tribes in ‘‘the development of Federal policies that have tribal 

implications.’’ 65 Fed. Reg. 67249 (Nov. 9, 2000). E.O. 13175 was a major step forward in the government-to-government relationship between American Indian 

nations and the United States. Symbolically, it demonstrated Federal respect for 

tribes. Practically, it reflected common sense and good government as well as a 

more effective way of developing and implementing Federal policy. It has never been 

rescinded and to this day constitutes the governing executive branch statement on 

tribal consultation. 

A notable feature of E.O. 13175 is its breadth. It does not limit the consultation 

requirement to Federal Indian policies. It applies to any Federal policy with ‘‘tribal 

implications.’’ This presumably includes general Federal policies that affect tribes. 

As governments and communities in the United States, Indian tribes are, of course, 

affected by numerous general Federal policies. In other words, E.O. 13175 requires 
21 

the Federal Government to consult with tribes about policies even if Indian tribes 

and people are not the primary target of such policies. While it has not always been 

implemented as broadly as its terms suggest it should be, E.O. 13175 is an ambitious and positive vision for Federal policy making and the government-togovernment relationship. 

In 2004, President George W. Bush issued a memorandum in which he noted E.O. 

13175 and expressed his administration’s commitment to the government-togovernment relationship. Memorandum on Government-to-Government Relationship 

with Tribal Governments (Sept. 23, 2004). The memorandum expressed good 

intentions, but tribes felt that these intentions were realized only unevenly. 

Eight years after President Clinton issued E.O. 13175, President Barack Obama 

was elected. He embraced Clinton’s Executive Order and made a robust effort to implement it by directing each Federal agency to develop its own individualized plan 

for tribal consultation. Presidential Memorandum on Tribal Consultation, 50 Fed. 

Reg. 57,881 (Nov. 5, 2009). Prodded by Domestic Policy Council staff at the White 

House, the vast Federal bureaucracy soon began working to comply, with each 

Federal agency or office embarking on individual policy-making efforts. The first 

step was, of course, to consult with tribes. In an effort that was important but must 

have been amusing to lovers of the Dilbert comic strip, each agency began ‘‘tribal 

consultations on tribal consultation.’’ These efforts bore fruit with each Cabinet-level 

Department and many sub-departments ultimately issuing their own specific tribal 

consultation policies, developed organically, but consistent with E.O. 13175. See, for 

example, the Tribal Consultation and Coordination Policy for the U.S. Department 

of Commerce, 78 Fed. Reg. 33331 (June 4, 2013). 

Though E.O. 13175 specifically disclaimed the creation of rights enforceable 

against the executive branch in court, it began to change the norms inherent in the 

Federal government-to-government relationship with tribes. Indeed, a handful of 

courts have signaled that agency action may be reviewable to insure that the 

consultation is meaningful. See, e.g., Cheyenne River Sioux Tribe v. Jewell, 3:15-CV03018, 2016 WL 4625672 (D.S.D. Sept. 6, 2016); Wyoming v. U.S. Dept. of the 

Interior, 136 F. Supp. 3d 1317, 1345–46 (D. Wyo. 2015). 

During the Obama administration, tribal leaders grew accustomed to annual 

meetings with the President and members of his cabinet and other agencies. In 

2013, President Obama issued Executive Order 13647, ordering an annual White 

House Tribal Nations Conference. Exec. Order No. 13647, 3 C.F.R. 311 (2014). As 

a result of the Federal Government’s more robust approach to tribal consultation, 

tribal governments are now more involved in shaping Federal policy affecting them. 

All of this tribal engagement has made Federal policy more effective. 

As tribal governments have engaged in consultation, they have become more competent in evaluating and affecting Federal public policy. They are more politically 

engaged and offer more astute suggestions. The result is a virtuous cycle: tribal governments engage; Federal policy improves; and tribal governments, in turn, become 

even more invested in the policy and the engagement. As a result of their invited 

involvement in the machinery of Federal policy making, tribes have become better 

Federal partners. 

A more substantive impact of this more robust government-to-government relationship has been a further transformation in the content of the Federal trust 

responsibility itself. Strong tribal input in shaping Federal policy necessarily diminishes the continuing paternalistic tendencies of that policy. 

The trust responsibility has quite simply come to embody much greater respect. 

Statutes continue to reflect Federal Government decision making and oversight of 

tribes, but the relationship has come to seem more like a collaboration between 

sovereigns. See Kevin K. Washburn, What the Future Holds: the Changing 

Landscape of Federal Indian Policy, 130 Harv. L. Rev. F. 200, 215–16 (2017). 

Moreover, as noted above, because the new norms around the government-togovernment relationship explicitly require consultation with tribes on any policy 

matter that affects them, the norms inherent in the trust responsibility have begun 

to escape the bounds of Indian policy. 

A fair criticism of the executive branch’s approach to tribal consultation is that 

E.O. 13175 has been implemented unevenly. Tribal consultation has been embraced 

much more enthusiastically in Democrat administrations than in Republican ones, 

in part because Democrats tend to develop more Federal Indian policy initiatives to 

serve a core constituency. 

The RESPECT Act in Context 

The RESPECT Act codifies a much stronger requirement for tribal consultation, 

but addresses a more narrow range of tribal interests than currently encompassed 

under E.O. 13175. The RESPECT Act addresses a subset of issues for which tribal 
22 

governments are likely to be most concerned, namely Federal activities that affect 

tribal cultural resources and lands, tribal self-governance, the trust responsibility, 

and the government-to-government relationship between a tribe and an agency. As 

to those matters, however, the RESPECT Act mandates robust formal procedural 

requirements as to how and when such consultation must occur, including providing 

for planning, notice, meetings, and memoranda of agreement. It also contains provisions requiring development of a record of tribal consultation and requirements for 

a final decision on the proposed Federal action, with provision for notice and 

comment. 

A significant feature of the RESPECT Act is a provision for confidentiality so that 

an Indian nation can share information with Federal officials without fear that it 

will become public. For example, a tribe can disclose the location of a sacred site 

without fear that it will be disclosed in a Freedom of Information Act response. 

Aside from that provision, which makes substantive changes to Federal disclosure 

laws, the RESPECT Act is almost entirely procedural. 

The RESPECT Act changes the landscape for tribal consultation as it exists under 

E.O. 13175 in several significant ways. 

First, in contrast to E.O. 13175, the RESPECT Act is judicially enforceable. Due 

to its terminology, I read the Act to allow a tribe to seek review of an agency determination even before an agency action becomes final, as long as the tribe has exhausted administrative remedies. This would appear to give the Act teeth at any 

stage of the process. In that respect, the RESPECT Act is much more effective than 

E.O. 13175 in mandating tribal consultation. 

Second, the RESPECT Act creates a uniform process across Federal agencies. 

Unlike the Obama administration approach to implementation of E.O. 13175, which 

allowed each agency to develop its own consultation process organically and with 

tribal input, the RESPECT Act creates uniformity. Such an approach has plusses 

and minuses. 

A plus is that tribes and citizens will know exactly how the uniform process works 

with each Federal agency, even if they have not worked with that agency previously, 

and will not have to become familiar with different specialized approaches for different agencies. There is value in uniformity. Consider for example, the National 

Environmental Policy Act (NEPA). NEPA imposes a regime that works fairly uniformly across the government. Each agency implements it similarly. As a result, expertise is not difficult to find and a lot of people are familiar with it, from citizens 

to courts. 

A minus is that, in light of varying cultures, so-called ‘‘one-size-fits-all’’ 

approaches don’t work well for tribes. Likewise, a ‘‘one-size-fits-all’’ approach to 

tribal consultation may not capture the needs of different agencies. The Act seems 

designed primarily with project development activities in mind, but it applies to a 

wider range of Federal activities, such as rulemaking and policy guidance. This may 

have unexpected consequences. 

Third, it will slow agency decision making and policy development. This also involves plusses and minuses. Tribes will likely be pleased with a slower process if 

it insures tribal consultation, but tribes too sometimes complain about the greater 

length of time required to achieve various policy goals, particularly those related to 

economic development on tribal lands. The RESPECT Act will likely lengthen that 

time. Consider the Department of the Interior’s existing tribal consultation policy; 

it requires advance notice of at least 30 days for a tribal consultation. That is a 

modest time period and yet it sometimes prevented agency officials from moving as 

quickly as they would like, even when developing a policy or making a decision that 

tribes sought. The time periods in the bill will allow time for robust consultation 

and plenty of notice but, like NEPA, may force an agency to move more slowly than 

ideal in some circumstances. 

Fourth, the RESPECT Act is in some ways narrower than E.O. 13175. While E.O. 

13175 applies to any Federal policy with ‘‘tribal implications,’’ which includes some 

policies that are beyond the traditional scope of Federal Indian policy, the 

RESPECT Act focuses only on the Federal activities that affect significant tribal interests, such as tribal cultural resources and lands, tribal self-governance, the trust 

responsibility, and the government-to-government relationship between a tribe and 

an agency. To the extent that E.O. 13175 is overbroad from the Federal perspective, 

Federal agencies have tended to take refuge in the fact that it is not judicially enforceable. Agencies have tended to ignore the tribal consultation requirement as to 

some matters. 

Fifth, and on the other hand, the RESPECT Act is broader than E.O. 13175 

because it applies to independent Federal regulatory agencies. One of the more frustrating episodes in modern Federal Indian policy for tribes was the National Labor 

Relations Board’s decision to ignore the Federal norms as to tribal consultation and 
23 

suddenly reverse long-standing policy toward tribes in a punitive enforcement 

action. See Wenona Singel, Labor Relations and Tribal Self-Governance, 80 N.D. L. 

Rev. 691, 693–94 (2004). Because the RESPECT Act applies to ‘‘operational activity,’’ it might prevent an independent Federal agency from implementing such a 

policy change in this manner in the future. 

Finally, the RESPECT Act might provide some salutary benefits as it applies to 

legislative proposals. In the past, bills have been enacted that failed adequately to 

consider issues involving tribes. For example, in the Adam Walsh Sex Offender 

Registration and Notification Act, the drafters inadvertently failed to consider the 

needs of Native American victims and communities. See Virginia Davis & Kevin 

Washburn, Sex Offender Registration in Indian Country, 6 Ohio St. J. Crim. L. 3 

(2008). Because a lot of proposed bills are developed as part of administration packages, the RESPECT Act provides a mechanism for insuring that tribal needs are 

considered in certain types of proposed legislation. 

In a more perfect world, the norm of tribal consultation would be respected evenly 

through time and across presidential administrations. In such a world, a 

congressional mandate for more elaborate tribal consultation would not be necessary. In the world in which we live, however, the RESPECT Act is needed to insure best practices in the Federal-tribal government-to-government relationship. 

Ultimately, the RESPECT Act would have the effect of making tribal consultation 

less partisan than it is now. Tribes could be assured of the same robust commitment 

to consultation no matter which party controls the White House. 

On balance, the RESPECT Act is a positive contribution and has the ability to 

advance tribal sovereignty and would improve the relationship between tribes and 

the Federal Government. 

Thank you for inviting my views on this important legislation. 

QUESTIONS SUBMITTED FOR THE RECORD BY REP. BISHOP TO KEVIN WASHBURN, 

UNIVERSITY OF IOWA COLLEGE OF LAW

Question 1. As the Assistant Secretary—Indian Affairs, you signed the September 

2015 Record of Decision for the Trust Acquisition and Reservation Proclamation for 

the Mashpee Tribe (‘‘ROD’’). In the ROD, you write ‘‘the Tribe qualifies for the IRA’s 

benefits under the second definition of ‘Indian.’ ’’ (ROD, page 79). To the best of your 

knowledge, has the Department of the Interior acquired land into trust under the 

second definition of ‘‘Indian’’ under the IRA for any other tribe besides the Mashpee? 

Question 2. To the best of your knowledge, has the Department of the Interior 

conducted, but not necessarily made final, a Carcieri analysis under the second 

definition of ‘‘Indian’’ for any other tribe besides the Mashpee Tribe? 

Question 3. Why didn’t the Department of the Interior use the ‘‘first definition’’ of 

Indian in the IRA in its analysis of the Mashpee Tribe’s Carcieri status? 

Answer. I thank the Committee for its focus on these issues and for these 

important questions. 

It is the responsibility of the Secretary to seek to meet the purposes of the Indian 

Reorganization Act within the bounds of the law. The Indian Reorganization Act 

presents more than one pathway for land into trust. During the Obama administration, the goal was to think more holistically about land into trust than the Supreme 

Court was able to do in Carcieri. Because of the nature of its work, the Supreme 

Court had before it only one of the pathways for land into trust. While Carcieri and 

its necessary implications must be respected as the law of the land, it need not— 

and should not—be interpreted more broadly than its reasoning requires. That 

would imbue the Supreme Court with a policy-making function that it does not have 

and presumably does not wish to have. 

I concluded my service at the Department of the Interior effective January 1, 

2016, and am sensitive to the fact that I have not been privy to inside discussions 

and strategy about the land into trust process since I left. Two of these questions 

essentially ask me for information that implicate the Department’s attorney-client, 

work product and deliberative process privileges with regard to important decisions 

of the Department. While I understand the public interest in those decisions, it 

would be arrogant of me to undermine the Department’s privileges when another 

person now holds that office. During my time at the Department of the Interior, the 

time devoted to land-into-trust applications increased substantially. I do note that 

the Trump administration has continued taking land into trust, for gaming and 

other purposes, so presumably it has also had to consider the implications of 
24 

Carcieri. However, I am not intimately aware of the decision-making actions of the 

Department and thus am not competent to answer all of these questions. 

I would note also, that, during the Obama administration, the Department 

resisted providing a list of tribes with ‘‘Carcieri problems’’ because producing such 

a list was not in the interest of any potential tribe that would be included on such 

a list. Thus, it would not be consistent with the Department’s role as trustee for 

each American Indian nation. Because these questions have similar implications, I 

believe, respectfully, that it is not in the best interest of any tribe—or for Indian 

Country generally—for me to answer these questions in the manner that they have 

been posed. Thank you again for the Committee’s attention to these important 

issues. 

Mr. GALLEGO. Thank you, Mr. Washburn. The Chair now 

recognizes Ms. Colette Routel for her testimony. 

STATEMENT OF COLETTE ROUTEL, PROFESSOR OF LAW, 

MITCHELL HAMLINE SCHOOL OF LAW, ST. PAUL, MINNESOTA 

Ms. ROUTEL. Good afternoon. Thank you for allowing me to appear before you today to testify about H.R. 375, a bill to amend the 

Indian Reorganization Act. As you know, in Carcieri v. Salazar, the 

Supreme Court held that trust lands could only be acquired for 

tribes that were under Federal jurisdiction when the IRA was 

adopted in 1934. Because the IRA is the only general statute that 

authorized the Secretary of the Interior to take land into trust for 

Indian tribes, tribes that cannot make this showing face the prospect of never regaining a permanent homeland. 

Scholars and practitioners alike immediately decried the Court’s 

extraordinarily cramped reading of the statutory text and predicted 

that the decision would wreak havoc throughout Indian Country by 

encouraging ways of litigation, stifling economic development, and 

creating dividing lines between tribes that Congress had sought to 

abolish. 

Sadly, those predictions have come true in the decade that has 

followed. Frivolous lawsuits have abounded. Local governments 

and private citizens have challenged the trust acquisitions of dozens of tribes that were obviously under Federal jurisdiction in 

1934. Litigants have often used lawsuits to challenge land that has 

already been taken into trust. 

For example, in 2015, a tax assessor in Alabama assessed property taxes on land that was taken into trust 30 years before for the 

Poarch Band of Creek Indians. The tribe obviously won this case, 

but not until it had litigated it all the way to the 11th Circuit. 

Of course, not all Carcieri challenges are frivolous. In 2014, the 

Department of the Interior issued a formal opinion which provides 

a two-part framework for determining whether an Indian tribe was 

under Federal jurisdiction in 1934. The problem is that finding and 

assembling the information necessary to satisfy this two-part 

inquiry is daunting. Federal records and correspondence needed to 

demonstrate these actions are scattered throughout the country in 

public archives and in private collections. And when tribes gather 

all of this documentation, they can do so only to have the rules 

suddenly shift. 

The Mashpee Wampanoag Tribe find themselves in just this position. In September 2018, the Department refused to reaffirm the 

status of the tribe’s reservation and it did so even though the 
25 

* The comments expressed herein are solely those of the author as an individual member of 

the academic community; the author does not represent Mitchell Hamline School of Law for 

purposes of this testimony. 

Mashpee submitted documentation, for example, that showed that 

a significant number of Mashpee children attended the Carlisle 

Boarding School. Mashpee members were included on Federal 

census roles and the Federal Government recognized the tribe’s 

hunting, fishing, and gathering rights. This is all evidence that has 

previously been considered to be sufficient to withstand a Carcieri 

challenge. 

The consequences for Mashpee have been extraordinary. The 

tribe has broken ground on their casino and apparently owes more 

than $300 million, yet construction is indefinitely stalled and the 

tribe has no more access to capital. Without trust lands, the tribe 

does not qualify for even the most basic Federal programs such as 

food distribution programs, burial assistance, and adult care assistance. All of these programs are administered for Indians that live 

on or near a reservation, and the Federal Government now tells 

the Mashpee that they do not. 

The Mashpee are just one example of why trust lands are so 

vital. They are the only lands that are permanently held for the 

benefit of an Indian tribe. Trust lands can’t be taxed; they can’t be 

condemned or otherwise alienated without tribal or congressional 

authorization. Trust lands are also the only lands on which tribes’ 

sovereignty has never been questioned. Permanency and sovereign 

authority are necessary components for a true homeland for Indian 

tribes and this can only be achieved with trust land. 

As Dean Washburn already mentioned, there is simply no policy 

justification for using 1934 as a magical date that limits access to 

such an important benefit. Moreover, it is not even this date of 

tribal acknowledgement, but rather the manner in which an Indian 

tribe became acknowledged that has proved crucial following 

Carcieri. Tribes that were recognized by Congress are almost always insulated from the impacts of Carcieri through express provisions in the recognition bills that allow fee-to-trust applications. It 

is only tribes that went through the office of Federal acknowledgement’s grueling recognition process that are now faced with never 

receiving any land into trust. Many of them waited years and expended millions of dollars to obtain acknowledgement as a federally 

recognized tribe only to find that the benefits of that decision are 

elusory. 

I urge the members of this Committee to support H.R. 375, 

which will once again clarify that the benefits of the IRA are 

available to all federally recognized tribes. Thank you. 

[The prepared statement of Ms. Routel follows:] 

PREPARED STATEMENT OF COLETTE ROUTEL, PROFESSOR OF LAW & DIRECTOR OF THE

INDIAN LAW PROGRAM, MITCHELL HAMLINE SCHOOL OF LAW * ON H.R. 375 

Chairman Grijalva, Ranking Member Bishop, and members of the Committee. 

Thank you for allowing me to appear before you today to testify about H.R. 375, 

a bill to amend the Indian Reorganization Act. 
26 

Background on the IRA and the Supreme Court’s Decision in Carcieri v. 

Salazar 

The Indian Reorganization Act (‘‘IRA’’), 48 Stat. 984 (codified as amended at 25 

U.S.C. § 5101 et seq.), is one of the most important pieces of legislation directly 

affecting Indians. When enacted by Congress in June 1934, it signaled a major reversal of governmental policy in Indian affairs. Previously, the United States had 

aggressively attempted to eradicate tribalism and assimilate individual Indians into 

white society. The linchpin of this assimilationist policy was the General Allotment 

Act of 1887 (‘‘GAA’’), which broke up tribal reservations into individual 160-acre 

allotments, while authorizing the remaining ‘‘surplus lands’’ to be sold to nonIndians. As a result of the GAA, Indian lands were diminished from 138 million 

acres to just 52 million acres in less than 50 years. By the 1930s, the Federal 

Government realized the devastating impact that this policy was having on Indian 

communities, and it decided to abruptly reverse course. As the principal component 

of the Indian New Deal, the IRA was intended to promote tribal self-government 

and ultimately restore to Indian tribes the management of their own affairs. See 

Morton v. Mancari, 417 U.S. 535, 542 (1974) (noting that the IRA was passed to 

‘‘establish machinery whereby Indian tribes would be able to assume a greater 

degree of self-government, both politically and economically’’). 

Land was recognized as essential to the achievement of these goals. Consequently, 

the IRA precluded allotment of future reservations. 25 U.S.C. § 5101. Unsold 

‘‘surplus’’ lands could be returned to the tribe at the discretion of the Secretary of 

the Interior. 25 U.S.C. § 5103. Importantly, the Secretary of the Interior was authorized to acquire new trust land for the benefit of tribes. Section 5 of the IRA reads 

as follows: 

The Secretary of the Interior is hereby authorized, in his discretion, to 

acquire through purchase, relinquishment, gift, exchange, or assignment, 

any interest in lands, water rights or surface rights to lands, within or 

without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of 

providing land for Indians. 

IRA, § 5, codified at 25 U.S.C. § 5108. Section 5 of the IRA remains the only general 

statute that authorizes the Secretary of the Interior to take land into trust for 

Indian tribes. 

In 2009, the U.S. Supreme Court decided Carcieri v. Salazar, 555 U.S. 379 (2009), 

a decision which disrupted 70 years of agency practice in acquiring trust lands for 

Indian tribes. The Carcieri Court held that Section 5 of the IRA must be read in 

conjunction with the Act’s definition of ‘‘Indian,’’ which was limited, in relevant part, 

to ‘‘persons of Indian descent who are members of any recognized Indian tribe now 

under Federal jurisdiction.’’ IRA, § 19. According to the Court, the word ‘‘now’’ 

unambiguously referred to the year that the IRA was enacted (1934), rather than 

the moment when the Secretary decided to take land into trust for the benefit of 

a particular tribe. Thus, following Carcieri, any tribe seeking the benefits of Section 

5 of the IRA was required to establish that it was ‘‘under Federal jurisdiction’’ in 

1934. 

Scholars and practitioners alike immediately decried the Court’s extraordinarily 

cramped reading of the statutory text and noted that the decision would wreak 

havoc throughout Indian Country by encouraging waves of litigation, stifling economic development, and creating dividing lines between tribes that Congress had 

sought to abolish. Sadly, those predictions have all come true in the decade that has 

followed. H.R. 375 is necessary to right the wrongs that have flowed from the 

Court’s decision in Carcieri. 

The Original Meaning of ‘‘Under Federal Jurisdiction’’ 

The Supreme Court’s decision in Carcieri provided very little guidance on the 

meaning of ‘‘under Federal jurisdiction,’’ even though Indian tribes would now need 

to demonstrate that they satisfied this concept as of 1934 in order for the Federal 

Government to take land into trust on their behalf. Today, ‘‘under Federal jurisdiction’’ may be considered synonymous with Federal recognition, but in 1934, Federal 

recognition of Indian tribes ‘‘was only beginning to take shape,’’ and it ‘‘was not 

universally applied, accepted or frankly, understood.’’ William W. Quinn, Jr., 

Federal Acknowledgment of American Indian Tribes: The Historical Development of 

a Legal Concept, 34 Am. J. Legal Hist. 331, 347 (1990). The terms ‘‘recognize’’ and 

‘‘acknowledge’’ were more often used simply in the cognitive sense, indicating that 

a particular tribe was known to the United States, and even then, no comprehensive 
27 

1The Senate Committee on Indian Affairs held hearings on the draft bill on April 26, 28, 30 

and May 3, 4, and 17, 1934. 2 Justice Thomas’ majority opinion in Carcieri v. Salazar fails to discuss any of this legislative 

history. At a minimum, both the language and the legislative history of the statute should have 

been enough to establish that the word ‘‘now’’ was ambiguous. Then, the Court should have deferred to the agency’s long-established practice in interpreting Section 5 of the IRA, which would 

have also comported with the Indian canons of construction that require ambiguous language 

in Indian-specific legislation to be read in favor of preserving tribal rights. 

list of Indian tribes acknowledged by the United States existed prior to 1934. Id. at 339. 

The IRA’s text and legislative history did not define the phrase ‘‘under Federal 

jurisdiction.’’ This phrase was hastily added to the bill following a confusing colloquy 

in a hearing before the Senate Committee on Indian Affairs on May 17, 1934. To 

Grant to Indians Living under Federal Tutelage the Freedom to Organize for 

Purposes of Local Self-Government and Economic Enterprise: Hearing on S. 2755 

before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., at 237 (May 

17, 1934) (‘‘May 17, 1934 Hearing’’). It is difficult to interpret the intent of any legislation, and the legislative history of the IRA is particularly challenging because two 

of the individuals primarily responsible for its passage—Commissioner of Indian 

Affairs John Collier and Chairman of the Senate Committee on Indian Affairs 

Burton Wheeler—had divergent views about the ultimate aims of Federal Indian 

policy. Senator Wheeler still believed that the government should be pursuing a policy of forced assimilation, while Commissioner Collier believed that the Federal 

Government should encourage the revitalization of traditional religious beliefs, arts 

and crafts, and governmental institutions. See generally Kenneth R. Philip, John 

Collier’s Crusade for Indian Reform 1920–1954 (1977); Elmer R. Rusco, A Fateful 

Time: The Background and Legislative History of the Indian Reorganization Act 

292–93 (2000). 

In six different hearings held throughout April and May 1934,1 Chairman 

Wheeler expressed his concerns that the term ‘‘recognized Indian tribe’’ was overinclusive and would require the guardian-ward relationship to be permanently 

maintained over tribes and tribal members that, in his view, had or would become, 

fully assimilated into white culture. Specifically, Chairman Wheeler argued that certain Indians in California, Montana and Oklahoma were capable of handling their 

own affairs, and in the future, they must be given fee title to their property. Near 

the end of the hearing on May 17, 1934, Wheeler pressed these concerns, noting 

that there were ‘‘several so-called ‘tribes’ ’’ in northern California that were comprised of ‘‘white people essentially,’’ ‘‘[a]nd yet they are under the supervision of the 

Government of the United States, and there is no reason for it at all, in my judgment.’’ May 17, 1934 Hearing at 263–66. In response to these concerns, 

Commissioner Collier stated: 

Commissioner COLLIER. Would this not meet your thought, Senator: After 

the words ‘‘recognized Indian tribe’’ in line 1 insert ‘‘now under Federal 

jurisdiction’’? That would limit the act to the Indians now under Federal 

jurisdiction, except that other Indians of more than one-half Indian blood 

would get help. 

Id. at 266. And the bill was thus amended. This is the only mention of the phrase 

‘‘now under Federal jurisdiction’’ in the legislative history. Contrary to the Supreme 

Court’s decision in Carcieri, this legislative history appears to support an interpretation of the word ‘‘now’’ that would not freeze in time the status of tribes in 1934, 

but rather, allow the Federal Government to alter that status in the future. After 

all, Chairman Wheeler admitted that the persons he was especially concerned about 

were currently ‘‘under the supervision of the Government of the United States,’’ and 

he wished to change that at a future date.2

Not long after this language was added to the bill, Felix Cohen, the Assistant 

Solicitor, expressed his concerns. Cohen drafted a memorandum attempting to explain the differences between the Senate and House versions of the bill, and he 

noted that the Senate bill ‘‘limits recognized tribal membership to those tribes ‘now 

under Federal jurisdiction,’ whatever that may mean.’’ National Archives Record 

Administration, Washington, DC. (NARA-DC), Record Group (RG) 75, Records 

Concerning the Wheeler-Howard Act, 1933–1937, Box 10, Memorandum of Felix 

Cohn, Differences Between House Bill and Senate Bill, at 2 (emphasis added). In 

a later analysis, Cohen explicitly advocated for the removal of the phrase ‘‘under 

Federal jurisdiction,’’ noting that it was likely to ‘‘provoke interminable questions 

of interpretation.’’ NARA-DC, RG 75, Records Concerning the Wheeler-Howard Act, 

1933–1937, Box 11, Analysis of Differences Between House Bill and Senate Bill, at 
28 

3 Congress may not ‘‘bring a community or body of people within the range of [its] power by 

arbitrarily calling them an Indian tribe.’’ United States v. Sandoval, 231 U.S. 28 (1913). 

14–15. Unfortunately, Cohen’s advice was not heeded, and the statute was adopted 

with the phrase remaining. 

The Litigation that Followed 

Following the Supreme Court’s decision in Carcieri, the question became whether 

‘‘under Federal jurisdiction’’ referred to tribes that were subject to Congress’ power,3

or, more narrowly, only to those tribes that the Federal Government had exercised 

its power over. If the latter were the interpretation adopted by the courts, extensive 

historical documentation would need to be gathered as part of any fee-to-trust application. Thus, Indian Country braced itself for a series of legal challenges designed 

to define this phrase. Still, no one could have anticipated the number of frivolous 

challenges to trust acquisitions that have been lodged over the past decade. States 

and local governments with strained relationships toward resident Indian tribes 

have exploited Carcieri to delay trust acquisitions or increase the costs of such acquisitions even in circumstances were no reasonable argument could be made that 

a particular tribe was not under Federal jurisdiction in 1934. 

A little bit of additional background is required to explain the absurdity of the 

challenges that ensued. The IRA sought to encourage tribal self-government, and as 

a result, the Federal Government sought tribal consent to its provisions through an 

election that was supposed to be called by the Secretary of the Interior on each 

reservation. Additionally, the IRA encouraged tribes to adopt written constitutions 

or corporate charters, which would only become effective when ratified by a majority 

vote of the adult members of the tribe residing on the reservation. IRA, §§ 16, 17. 

Theodore Haas, who was Chief Counsel for the Bureau of Indian Affairs in the 

1940s, compiled a pamphlet entitled Ten Years of Tribal Government Under the IRA 

(1947). This pamphlet listed the tribes that voted to accept or reject the IRA in the 

years immediately following its enactment, and it also listed the tribes that had 

voted on tribal constitutions and corporate charters. The so-called Haas lists certainly do not include all of the Indian tribes who were ‘‘under Federal jurisdiction’’ 

in 1934. For example, only tribes with existing land bases were permitted to organize as constitutional governments under the IRA; elections were not called for 

landless tribes. IRA, § 16 (permitting the organization of ‘‘[a]ny Indian tribe, or 

tribes, residing on the same reservation . . .’’). Nevertheless, the Haas lists should 

provide irrefutable evidence for those tribes that are mentioned, because they demonstrate that the Federal Government immediately consulted them to determine if, 

when, and how the IRA would be implemented on their reservations. 

Despite this, local governments and private citizens have challenged the trust 

acquisitions of dozens of tribes including on the Haas lists. The Fond du Lac Band 

of Ojibwe faced significant delays when it asked that a parcel of land be taken into 

trust for uses including protection of historical and cultural sites, preservation of 

sugar bush and riparian lands, and the creation of affordable housing. Saint Louis 

County objected to the proposed trust acquisition on Carcieri grounds. The County 

did so even though the Minnesota Chippewa Tribe, of which the Fond du Lac Band 

is a part, (1) voted to accept the IRA on October 27th and November 17, 1934, and 

(2) adopted an IRA-approved Constitution in 1936. While the County eventually admitted that these votes were conclusive evidence that the Band was ‘‘under Federal 

jurisdiction’’ in 1934, the Band’s trust acquisition was delayed by more than a year 

due, in part, to this frivolous claim. 

The Mille Lacs Band of Ojibwe is also a constituent band of the Minnesota 

Chippewa Tribe. It is a successor in interest to at least seven treaties with the 

United States, including an 1837 treaty under which the Band still possesses offreservation hunting, fishing and gathering rights reaffirmed by the U.S. Supreme 

Court. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). 

Congress passed numerous statutes for the benefit of the Band prior to the IRA’s 

enactment, and case law expressly recognized the Federal Government’s continuing 

obligations to the Band. United States v. Mille Lac Band of Chippewa Indians, 229 

U.S. 498, 507 (1913) (recognizing the Band’s continuing interest in reservation 

lands). Finally, the Band adopted an IRA Constitution in 1936 (as a constituent 

Band of the Minnesota Chippewa Tribe, specifically referred to in the Constitution 

as ‘‘the non[-]removal Mille Lac Band of Chippewa Indians’’), a corporate charter in 

1937, and a local governance charter in 1939. Despite all of this, Mille Lacs County 

challenged the Department’s decision to take land into trust for housing purposes, 

arguing that the Mille Lacs Band was not under Federal jurisdiction in 1934. Mille 

Lacs County v. Acting Midwest Regional Director, 62 IBIA 130 (2016). While the 

Interior Board of Indian Appeals (‘‘IBIA’’) ultimately rejected this challenge, it did 
29 

4Prior to Patchak, if challenges were filed within the 30-day window, as a matter of policy, 

the Department would not take the land into trust until after the lawsuit had been resolved. 

If litigants missed this 30-day deadline, however, the land was taken into trust and all challenges to the acquisition were believed to be barred. 

not do so until 21⁄2 years following the Acting Midwest Regional Director’s decision 

to take the land into trust. 

These are not isolated instances. The Oneida Nation of Wisconsin has twice faced 

Carcieri challenges to its fee-to-trust applications. Village of Hobart v. Acting 

Midwest Regional Director, 57 IBIA 4 (2013) (rejecting Village of Hobart’s Carcieri 

challenge and noting that the Nation was party to treaties with the United States, 

subjected to various congressional acts, voted to accept the IRA in 1934, and adopted an IRA Constitution in 1936); Dillenburg v. Midwest Regional Director, 63 IBIA 

56 (2016) (rejecting same arguments made by private citizens). Likewise, dozens of 

other tribes on the Haas lists have faced similar challenges to their fee-to-trust 

applications, many of which have been appealed (unsuccessfully) to the IBIA and 

Federal courts. See, e.g., Stand Up for California! v. U.S. Dep’t of the Interior, 204 

F. Supp. 3d 212 (D.D.C. 2016), aff’d 879 F.3d 1177 (D.C. Cir. 2018) (North Fork 

Rancheria); Starkey v. Pacific Regional Director, 63 IBIA 254 (2016) (La Posta Band 

of Mission Indians), New York v. Acting Eastern Regional Director, 58 IBIA 323 

(2014) (Oneida Nation of New York); Thurston County v. Great Plains Regional 

Director, 56 IBIA 296 (2013) (Nebraska Winnebago Tribe); Shawano County v. 

Acting Midwest Regional Director, 53 IBIA 62 (2011) (Stockbridge-Munsee 

Community). 

Litigants have not been content, however, to challenge current applications to 

take land into trust. The Supreme Court amplified the litigation risk posed by 

Carcieri in its decision in Match-E-Be-Nash-She-Wish Band of Potawatomi v. 

Patchak, 567 U.S. 209 (2012). In Patchak, the Court interpreted the Quiet Title Act 

to allow certain retroactive challenges to lands that had already been taken into 

trust. Prior to Patchak, states and local governments seeking to challenge trust land 

acquisitions were required to file their lawsuits within 30 days. 25 C.F.R. 

§ 151.12(b)(2012).4 Immediately after Patchak, the APA’s general 6-year statute of 

limitations applied to challenges of trust acquisitions. 

Emboldened by Patchak, litigants sought to remove land that had already been 

taken into trust for tribes—sometimes decades earlier—by claiming that they were 

not ‘‘under Federal jurisdiction’’ in 1934. And when these lawsuits failed, new and 

creative collateral attacks were filed. See, e.g., Alabama v. PCI Gaming Auth., 15 

F.Supp.3d 1161 (N.D. Ala. 2014), aff’d, 801 F.3d 1278, 1291 (11th Cir. 2015) (noting 

that the ‘‘proper vehicle’’ for challenging the Secretary’s authority to take land into 

trust for the Poarch Band of Creek Indians was a timely APA challenge, not a collateral challenge to a decision made by the Secretary decades earlier); Big Lagoon 

Rancheria v. California, 789 F.3d 947, 952–53 (9th Cir. 2015) (en banc) (rejecting 

a Carcieri argument raised outside the APA context). For example, in 2015, a tax 

assessor in Escambia County, Alabama assessed property taxes on land that was 

taken into trust in 1984 for the Poarch Band of Creek Indians. The assessor apparently claimed that the land was ‘‘illegally’’ taken into trust because the Poarch Band 

was not ‘‘under Federal jurisdiction’’ in 1934, and therefore, the tax-exempt status 

of its land should not be recognized. The Tribe sued to stop this assessment and 

was granted a preliminary injunction by the Federal district court. The Eleventh 

Circuit upheld that decision, noting that it had previously rejected a collateral 

attack on the same parcel of land in PCI Gaming. Poarch Band of Creek Indians 

v. Hildreth, 656 Fed. Appx. 934 (11th Cir. 2016). 

The Current Meaning of ‘‘Under Federal Jurisdiction’’? 

In 2014, an official M-Opinion was issued by the Department of the Interior, 

which provides a framework for determining whether an Indian tribe is ‘‘under 

Federal jurisdiction’’ in 1934. Memorandum from Solicitor Hilary Tompkins to 

Secretary Sally Jewell, The Meaning of Under Federal Jurisdiction for Purposes of 

the Indian Reorganization Act, M–37029 (Mar. 12, 2014). In that opinion, the 

Solicitor required that tribes meet a two-part test. First, there must be evidence 

prior to 1934 that the United States took ‘‘an action or series of actions—through 

a course of dealings or other relevant acts for or on behalf of the tribe or in some 

instance tribal members—that are sufficient to establish, or that generally reflect 

Federal obligations, duties, responsibility for or authority over the tribe by the 

Federal Government.’’ Id. at 19. Second, tribes must demonstrate that their 

‘‘jurisdictional status remained intact in 1934.’’ Id. To date, courts appear to have 

adopted this two-part framework. E.g., Confederated Tribes of the Grand Ronde 
30 

Cmty. v. Jewell, 830 F.3d 552 (D.C. Cir. 2016) (adopting two-part test and 

concluding that the Cowlitz tribe was ‘‘under Federal jurisdiction’’ in 1934). 

Finding and assembling the information necessary to satisfy this two-part inquiry, 

however, is daunting. The M-Opinion provides examples of evidence sufficient to 

establish Federal obligations, duties, and authority over the tribe, which: 

may include, but is certainly not limited to, the negotiation of and/or 

entering into treaties; the approval of contracts between a tribe and nonIndians; enforcement of the Trade and Intercourse Acts (Indian trader, 

liquor laws, and land transactions); the education of Indian students at BIA 

schools; and the provision of health or social services to a tribe. 

M–37029, at 19. 

Federal records and correspondence needed to demonstrate these actions are scattered throughout the country in public archives and private collections. If, for example, you were looking for information on Minnesota Indian tribes, at a minimum, 

you would need to search the National Archives in Chicago, Illinois and 

Washington, DC, as well as local historical societies in the states of Minnesota and 

Wisconsin. Additionally, the dates and types of documents often sought in response 

to Carcieri challenges are extremely time consuming to gather. From 1887 through 

1906, for example, all historical correspondence from Indian agents to the 

Commissioner of Indian Affairs are filed in chronological order of receipt in the 

National Archives in Washington, DC. To find relevant documents, the researcher 

must engage in a multi-step process: (1) identify key words (e.g., names of officials, 

tribal members, locations, and activities); (2) use those key words to search a microfilmed index that provides only the numbers of letters that were received from 

Indian agents and private citizens throughout the United States; (3) use a finding 

aid to determine what box a particular numbered letter is in; and (4) request that 

box at one of the specific National Archives pull times. Many letters are missing 

from their assigned boxes, others may be irrelevant, and only 10–15 boxes may be 

requested for an individual pull. Researching documents in this manner requires a 

significant expenditure of time, and therefore, money. 

The M-Opinion specifically references ‘‘the education of Indian children at BIA 

schools,’’ as a category of documents that can be used to demonstrate that a tribe 

was ‘‘under Federal jurisdiction’’ prior to 1934. Finding these documents, however, 

is even more time consuming than the process described above. Records for Indian 

children are typically organized by the child’s last name, not by his or her tribal 

affiliation. Therefore, genealogies or tribal membership lists are often needed to 

identify potentially relevant records. And since Indian children were sent to 

boarding schools throughout the country, a researcher may need to visit document 

collections in more than three different locations. 

Even more distressing, after expending all of these resources, a tribe may gather 

this documentation only to be told that it is inadequate. The Mashpee Wampanoag 

Tribe find themselves in just such a position. On March 20, 2013, Solicitor 

Tompkins wrote Mashpee Wampanoag Tribal Chairman Cedric Cromwell, to inform 

him about the status of the tribe’s pending fee-to-trust application. Tompkins noted 

that ‘‘[t]he majority of Carcieri determinations require a comprehensive, factintensive analysis that can be time intensive and costly.’’ The Department ultimately decided to forego this determination and take the 321-acre parcel of land 

into trust for the tribe under a different provision of the IRA, in 2015. But after 

local residents succeeded in a Federal court lawsuit that required the Department 

to take another look at its decision, the Mashpee were forced to engage in this ‘‘time 

intensive and costly’’ process and to collect the kind of information identified in the 

case law that has developed in case law and in the M-Opinion. 

The Mashpee submitted extensive documentation to the Department establishing 

that the tribe was ‘‘under Federal jurisdiction’’ in 1934. For example, the tribe submitted correspondence, health records, and other school records for a significant 

number of Mashpee children who attended the Carlisle Indian Industrial School 

until 1918, when the school closed. Even though the M-Opinion specifically references ‘‘the education of Indian students at BIA schools,’’ and even though such 

evidence has been relied on by several Federal courts in Carcieri-related cases, in 

September 2018, the Department essentially rejected that evidence when it refused 

to reaffirm the status of the tribe’s reservation. 

The consequences for the Mashpee Wampanoag Tribe have been extraordinary. 

They had already broken ground on their tribal casino and apparently owe more 

than $300 million, yet construction is indefinitely stalled and the tribe has no more 

access to capital. Without any trust lands, the tribe does not qualify for even the 

most basic Federal programs. See, e.g., 7 C.F.R. Part 253, 254 (Department of 
31 

Agriculture food distribution program only applies to low-income Indians residing on 

or near a reservation); 25 C.F.R. Part 20 (Federal social service programs including 

burial assistance, disaster assistance, and adult care assistance) are available only 

to Indians who reside ‘‘on or near reservations’’); 25 C.F.R. Part 26 (Indian employment assistance programs are only available to those persons residing on or near 

Indian reservations). The Tribe has had to layoff employees and its tribal council 

is working without pay. 

What Policy Justifications Support 1934 as the Dividing Line? 

As the Mashpee make clear, trust lands are vital. They are the only lands permanently held for the benefit of an Indian tribe. Historically, millions of acres were 

lost due to the inability of the tribe or tribal members to pay real property taxes 

or mortgage debts. Charles F. Wilkinson, American Indians, Time and the Law 20 

(1987) (noting that prior to the adoption of the IRA, more than 26 million acres of 

allotted land left Indian hands due to fraud, mortgage foreclosures, and tax sales). 

While land remains in fee status, state powers of eminent domain could be employed take a right-of-way across that land for pipelines or other projects, potentially destroying cultural and historic resources. Trust land, on the other hand, 

cannot be taxed, condemned or otherwise alienated without either tribal consent or 

express congressional authorization. See e.g., 25 C.F.R. § 152.22 (requiring 

Secretarial approval to convey trust lands); 25 C.F.R. Part 169 (requiring tribal consent and Secretarial approval for rights-of-way across trust lands); United States v. 

Rickert, 188 U.S. 432 (1903) (precluding state taxation of trust property); The New 

York Indians, 72 U.S. 761 (1867) (precluding state taxation and tax forfeiture proceedings against tribal lands); The Kansas Indians, 72 U.S. 737 (1867) (same). 

Trust lands are also the only lands on which the tribe’s sovereign authority is undisputed. Tribes exercise sovereignty over trust lands regardless of whether they are 

located inside or outside reservation boundaries. See 18 U.S.C. § 1151 (defining 

‘‘Indian country’’ to include ‘‘dependent Indian communities,’’ and allotments still 

held in trust); Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 

(1998) (noting that ‘‘dependent Indian communities’’ includes land that is under 

Federal superintendence and has been set aside by the Federal Government for the 

use of a tribe). And while the U.S. Supreme Court has limited tribal sovereignty 

over non-members on fee land, it has not done so on trust lands. Compare Plains 

Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316 (2008) (claiming 

that ‘‘[o]ur cases have made clear that once tribal land is converted into fee simple, 

the tribe loses plenary jurisdiction over it,’’ and stating that ‘‘the tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate 

the use of fee land’’), with Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) 

(upholding tribal severance tax on natural resources removed by nonmembers from 

trust lands), and New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) 

(holding that the state could not ‘‘restrict an Indian Tribe’s regulation of hunting 

and fishing’’ on trust lands within its reservation). Permanency and sovereignty authority are, in essence, what makes the land a true homeland for Indian tribes. 

Trust lands are necessary for both. 

The Carcieri decision has created two classes of tribes: those that were ‘‘under 

Federal jurisdiction’’ in 1934, and those that were not. The benefits of the IRA are 

now unavailable to the latter group. If the latter group did not possess land prior 

to 2009, when the Carcieri decision was handed down, it faces the prospect of never 

regaining a permanent homeland. Congress never intended this result. 

Securing trust lands for Indian tribes was always considered necessary to promote 

economic security and self-determination, which were the main goals of the IRA. 

H.R. Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934). It should not be surprising that 

the legislative history for the IRA is therefore replete with references to the need 

to help ‘‘landless Indians.’’ Id. (stating that the IRA would ‘‘make many of the now 

pauperized, landless Indians self-supporting’’); 78 Cong. Rec. 11,370 (1934) (statement of Representative Howard, one of the bill’s co-sponsors, stating Section 5 of 

the IRA would ‘‘provide land for Indians who have no land or insufficient land’’); 

78 Cong. Rec. 11,726 (1934) (noting that the IRA would authorize ‘‘the purchase of 

additional lands for landless Indians’’). In fact, there are so many references to 

‘‘landless Indians’’ that some have argued—incorrectly—that the IRA’s land provisions were only designed to help such tribes and tribal members. See South Dakota 

v. U.S. Dep’t of Interior, 423 F.3d 790, 798 (8th Cir. 2005) (‘‘Although the legislative 

history [of the IRA] frequently mentions landless Indians, we do not believe that 

Congress intended to limit its broadly stated purposes of economic advancement and 

additional lands for Indians to situations involving landless Indians’’); South Dakota 

v. Acting Great Plains Regional Director, 39 IBIA 283, 289–90 (2004) (noting that 

Indians need not be landless for the Secretary to acquire land for them under 
32 

5See, e.g., Tonto Apache Tribe of Arizona, P.L. 92–470 (Oct. 6, 1972) (‘‘The Payson Community 

of Yavapai-Apache Indians shall be recognized as a tribe of Indians within the purview of the 

Act of June 18, 1934 . . . and shall be subject to all of the provisions thereof’’); Pasqua Yaqui 

of Arizona, P.L. 95–375 (Sept. 18,1978) (‘‘The provisions of the Act of June 18, 1934 . . . are 

extended to such members described in subsection (a) of this section’’); Cedar City Band of 

Paiutes in Utah, P.L. 96–227 (Apr. 3, 1980) (‘‘The provisions of the Act of June 18, 1934 . . . 

except as inconsistent with the specific provisions of this Act, are made applicable to the tribe 

and the members of the tribe.’’); Ysleta Del Sur Pueblo of Texas, P.L. 100–89 (Aug. 18, 1987) 

(‘‘The Act of June 18, 1934 (28 Stat. 984) as amended . . . shall apply to members of the tribe, 

the tribe, and the reservation’’); Lac Vieux Desert Band of Lake Superior Chippewa, P.L. 100– 

420 (Sept. 8, 1988) (‘‘The Act of June 18, 1934 (48 Stat. 984), as amended, and all laws and 

rules of law of the United States of general application to Indians, Indian tribes, or Indian 

reservations which are not inconsistent with this Act shall apply to the members of the Band, 

and the reservation’’); Yurok Tribe of California, P.L. 100–580 (Oct. 31, 1988) (‘‘The Indian 

Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461 et seq.), as amended, is hereby 

made applicable to the Yurok Tribe’’); Pokagon Band of Potawatomi Indians of Michigan, P.L. 

103–323 (Sept. 21, 1994) (‘‘Except as otherwise provided in this Act, all Federal laws of general 

application to Indians and Indian tribes, including the Act of June 18, 1934 . . . shall apply 

with respect to the Band and its members’’); Little River Band of Ottawa Indians and Little 

Traverse Bay Bands of Odawa Indians, P.L. 103–324 (Sept. 21, 1994) (‘‘All laws and regulations 

of the United States of general application to Indians or nations, tribes, or bands of Indians, 

including the Act of June 18, 1934 . . . which are not inconsistent with any specific provision 

of this Act shall be applicable to the Bands and their members’’). 

Section 5 of the IRA). Ironically, the IRA is now being read to preclude most 

landless tribes from acquiring any trust lands. 

Subsequent Congresses did not intend this result either. In nearly every individual tribal recognition statute passed since the 1970s, Congress provided that the 

newly recognized or re-recognized tribe was permitted to utilize all of the rights and 

benefits provided by the IRA, including the right to have the Secretary acquire 

lands in trust for the tribe.5 Additionally, in 1994, Congress enacted amendments 

to the IRA that explicitly prohibited any Federal agency from promulgating a regulation or making a decision ‘‘that classifies, enhances, or diminishes the privileges 

and immunities available to the Indian tribe relative to other federally recognized 

tribes.’’ 25 U.S.C. § 476(f) & (g). These amendments were passed in direct reaction 

to informal policies of the Bureau of Indian Affairs, which had begun classifying 

tribes into ‘‘created’’ and ‘‘historic’’ tribes, limiting the benefits available to former. 

Senator Inouye, who co-sponsored the legislation, told Congress that: 

The amendment which we are offering . . . will make it clear that the 

Indian Reorganization Act does not authorize or require the Secretary to establish classifications between Indian tribes. . . . [I]t is and has always 

been Federal law and policy that Indian tribes recognized by the Federal 

Government stand on an equal footing to each other and to the Federal 

Government. . . . Each federally recognized Indian tribe is entitled to the 

same privileges and immunities as other federally recognized tribes and has 

the right to exercise the same inherent and delegated authorities. This is 

true without regard to the manner in which the Indian tribe became recognized by the United States or whether it has chosen to organize under the 

IRA. By enacting this amendment . . ., we will provide the stability for 

Indian tribal governments that the Congress thought it was providing 60 

years ago when the IRA was enacted. 

140 Cong. Rec. S6147, 1994 WL 196882 (May 19, 1994). 

The language and intent of the 1994 List Act is contrary to the Court’s decision 

in Carcieri, which now requires the Department to distinguish between tribes that 

were ‘‘under Federal jurisdiction’’ in 1934, and those that were not. The practical 

distinction, however, ends up being different. It is not the date of tribal acknowledgment, but rather, the manner in which an Indian tribe became acknowledged that 

is crucial. As noted above, tribes that were recognized by Congress are generally insulated from the impacts of Carcieri through express provisions in their recognition 

bills that make the IRA applicable to both the tribe and its members. Indeed, many 

tribal acknowledgment bills passed by Congress include more favorable fee-to-trust 

provisions, which eliminate the Secretary’s discretion and instead mandate that certain lands (either determined by quantity, location, or both) be taken into trust for 

the tribe. This demonstrates that Congress has always understood the vital 

importance of trust lands to tribal sovereignty. 

The only tribes faced with the inability of the Federal Government to take any 

land into trust for their benefit are a subset of those tribes recognized through the 

Office of Federal Acknowledgment (‘‘OFA’’). Drawing a distinction between congressionally recognized and OFA-recognized tribes to the detriment of the latter group, 
33 

simply makes no sense. These are tribes that have already proven their continuous 

existence from 1900 to the present through expert reports and primary source documents. Many of them have waited years and expended millions of dollars to obtain 

acknowledgment as a federally recognized tribe only to find the benefits of that 

decision illusory. 

I urge the members of this Committee to support H.R. 375, which will once again 

clarify that the benefits of the IRA are available to all federally recognized tribes. 

Each time the Federal Government takes land into trust, it helps a tribe use the 

land to build housing, to protect cultural resources, or to pursue economic development necessary to fund tribal governmental operations and services. The Federal 

Government has an obligation to reverse the impacts of misguided Federal policies 

that deprived tribes of their lands and resources and sought to stamp out their 

unique identity. Adopting a clean Carcieri-fix would be one step in that direction. 

Thank you. 

QUESTIONS SUBMITTED FOR THE RECORD BY REP. BISHOP TO COLETTE ROUTEL, PROFESSOR OF LAW, MITCHELL HAMLINE SCHOOL OF LAW

Question 1. In your written statement, you explain that the Solicitor of the Interior 

in 2013 decided to forgo the usual Carcieri determination for the Mashpee. Land was 

later taken in trust for the Mashpee ‘‘under a different provision of the IRA . . .’’ 

[Written Statement, page 7]. To clarify, is this ‘‘different provision of the IRA’’ the 

so-called ‘‘second definition’’ of ‘‘Indian’’ in section 19 of that Act? If so, then to the 

best of your knowledge, has the Department ever acquired land in trust under the 

IRA for any other tribe under the second definition of ‘‘Indian’’? 

Answer. The IRA’s second definition of ‘‘Indian.’’: 

In my written testimony previously provided to the Subcommittee, I noted that 

the Department of the Interior (‘‘Department’’) initially decided to forego making a 

Carcieri determination for the Mashpee Wampanoag, and instead took land into 

trust for the tribe ‘‘under a different provision of the IRA’’ in 2015. Ranking Member 

Bishop asked whether this ‘‘different provision’’ was the second definition of ‘‘Indian’’ 

in Section 19 of the Indian Reorganization Act (‘‘IRA’’), and if so, whether I knew 

of any instances of the Department previously invoking this definition. The answer 

to these questions is ‘‘yes.’’ 

Section 19 of the IRA defines the term ‘‘Indian’’ as follows: 

The term ‘‘Indian’’ as used in this Act shall include all persons of Indian 

descent who are members of any recognized Indian tribe now under Federal 

jurisdiction, and all persons who are descendants of such members who 

were, on June 1, 1934, residing within the present boundaries of any Indian 

reservation, and shall further include all other persons of one-half of more 

Indian blood . . . . 

The italicized portion of this Section is the so-called ‘‘second definition,’’ which was 

used by the Department in its initial decision to take land into trust for the 

Mashpee. To date, I have not specifically set out to research the historical implementation of this provision. I do, however, know of at least two instances where this 

provision was used to ensure that tribes had access to the benefits of the IRA: the 

Saginaw Chippewa Indian Community and the Bay Mills Indian Community. 

In 1855, the ‘‘Ottawa and Chippewa Indians’’ and the ‘‘Saginaw, Swan Creek and 

Black River Indians’’ signed two treaties with the United States that created several 

reservations for their benefit in the state of Michigan. See 1855 Treaty of Detroit, 

10 Stat. 591 (‘‘1855 Ottawa and Chippewa Treaty’’); Treaty with the Chippewa, 11 

Stat. 633 (1855) (‘‘1855 Saginaw Treaty’’). Article V of the 1855 Ottawa and 

Chippewa Treaty provided that ‘‘[t]he tribal organization of said Ottawa and 

Chippewa Indians, except so far as may be necessary for the purpose of carrying 

into effect the provisions of this agreement, is hereby dissolved.’’ Article VI of the 

1855 Saginaw Treaty contained nearly identical language. These provisions were 

included in the treaties at the request of the tribes. Tribal leaders had expressed 

frustration that the government was negotiating with the Ottawa and Chippewa together, even though they were separate communities. For example, during negotiations for the 1855 Ottawa and Chippewa Treaty, Waw-be-geeg, a Chippewa chief 

from the Upper Peninsula, indicated his concern several times, noting that ‘‘I told 

you when I first came that I wanted to be separated from the Ottawas and you have 

not answered me. We have sat here and heard you talk to the Ottawas while you 

paid no attention to us.’’ George Manypenny, the Commissioner of Indian Affairs, 
34 

responded to Waw-be-geeg by stating that the fictious grouping of the Ottawa and 

Chippewa bands together as one tribe would be dissolved in the treaty: ‘‘[t]he very 

case you suggested is met in the treaty you are separated as you desire. This treaty 

you and the Ottawas must sign together is because the old treaty of 36 was made 

in that way, but here we have followed your suggestion and provide . . . that no 

general council shall be called’’ in the future. United States v. Michigan, 471 F.Supp. 

192, 247–48 (W.D. Mich. 1979) (recounting the history of Article V of the 1855 

Treaty, including excerpts from the original treaty journal, and concluding that 

Article V was not meant to terminate the government-to-government relationship 

with the Michigan Ottawa and Chippewa bands). 

Years after the 1855 Treaties were ratified, Federal officials who had not been 

present for the negotiations misread Articles V & VI, and incorrectly concluded that 

they had ended the Federal-tribal relationship with the Ottawa and Chippewa 

bands in Michigan. As a result, by the end of the 19th century, the Federal Government had abdicated its responsibilities to the bands and repeatedly stated that they 

were no longer wards of the government subject to Federal jurisdiction. E.g., Grand 

Traverse Band v. Office of U.S. Att’y, 369 F.3d 960, 961–62 n.2 (6th Cir. 2004) 

(describing the Federal Government’s misinterpretation of Article V of the 1855 

Ottawa and Chippewa Treaty, and its decision to cease recognizing the signatory 

tribes). 

When the IRA was enacted in 1934, the Department had to determine whether 

it would enable these Michigan Indian tribes to access its benefits. In 1934, the 

Department still clung to the position that these tribes had been ‘‘dissolved’’ and 

were no longer ‘‘under Federal jurisdiction.’’ The Department originally expressed 

interest in purchasing land and taking that land into trust for half-bloods (i.e., the 

third definition of Indian in the IRA). Ultimately, however, the Department never 

followed through on this approach even while it did so for tribes in neighboring 

states, such as the St. Croix Band of Chippewa Indians. 1 Dept. of Interior, 

Opinions of the Solicitor Relating to Indian Affairs, 1917–1974, 724–25 (decision recognizing St. Croix as half-blood community). Instead, the Department encouraged 

the Saginaw Chippewa Indian Community and Bay Mills Indian Community to organize under the IRA’s second definition of ‘‘Indian.’’ The Department acknowledged 

that both Saginaw and Bay Mills maintained reservations pursuant to the 1855 

Treaty, and therefore, the descendants of persons who were members of those two 

bands prior to their dissolution could organize under the IRA if they were residing 

on those reservations. Once the bands were organized, they could adopt constitutional membership criteria that included persons who lived off-reservation. 

By way of example, I am attaching one of the letters articulating this process for 

the Saginaw Chippewa Indian Community. In July 1936, Assistant Commissioner 

of Indian Affairs, William Zimmerman, wrote to the Saginaw Chippewa and indicated that ‘‘[a]lthough historically your group composed the Saginaw, Swan Creek, 

and Black River Bands, Article 6 of the treaty of August 2, 1855, 11 Stat. 633, made 

with those bands, dissolved their tribal organization.’’ Because (according to the 

Federal Government’s misreading of the treaty) the tribe no longer existed, 

Zimmerman noted that they should organize under the second definition of ‘‘Indian’’ 

in the IRA: ‘‘[y]our group also comes within the term ‘‘Indian’’ as defined in section 

19 of the Reorganization Act in view of the fact that your group is composed of descendants of members of a recognized tribe, residing on June 1, 1934, within the 

boundaries of an Indian reservation.’’ Zimmerman to Chairman, July 31, 1936, CCF 

9060-A-1936, Tomah 068. Zimmerman did not believe that the Saginaw Chippewa 

needed to establish that they were ‘‘under Federal jurisdiction’’ as of June 1934; indeed, under his misinterpretation of the 1855 Treaty, he was saying that the tribe 

was not under Federal jurisdiction as of that date. 

The Department made a similar determination for the Bay Mills Indian 

Community. See, e.g., Amicus Brief of Historians, Carcieri v. Salazar, at 17–18 

(noting that in 1934, Federal officials believed ‘‘that the Bay Mills Indians were no 

longer ‘wards of the government’ ’’ and that ‘‘Commissioner Collier suggested, and 

the Bay Mills community agreed, that they should organize as ‘Indians residing on 

one reservation’ ’’); Charles E. Cleland, The Place of the Pike (Gnoozhekaaning): A 

History of the Bay Mills Indian Community 67–73 (2001) (recounting Commissioner 

Collier’s decision, in May 1936, to allow Bay Mills to organize under the IRA’s second definition of ‘‘Indian’’). The Federal Government then purchased approximately 

1,000 acres of land within or adjacent to Bay Mills’ existing reservation and took 

that land into trust for the benefit of the tribe. Cleland, supra, at 70–71. 

Unfortunately, the Department did not permit many other Michigan Ottawa and 

Chippewa bands to organize, and those tribes had to wait many years for Congress 

or the Office of Federal Acknowledgment (‘‘OFA’’) to reaffirm their existence. The 

Grand River Band of Ottawa and Chippewa Indians was the first tribe 
35 

1 Justice Breyer noted in his concurring opinion in Carcieri that tribes such as the Grand 

Traverse Band were likely ‘‘under Federal jurisdiction’’ in 1934, even though the Federal 

Government mistakenly believed they were not. Carcieri v. Salazar, 555 U.S. 379, 397–99 (2009) 

(Breyer J., concurring). More recently, the Interior Board of Indian Appeals affirmed the ability 

of the Department to take land into trust for the Grand Traverse Band, concluding that the 

Band did satisfy the first definition of ‘‘Indian’’ in Section 19 of the IRA. Grand Traverse County 

Bd. of Comm’rs v. Acting Midwest Reg’l Dir., 61 IBIA 273 (2015). 2The Mashpee had several members in 1934 that were of one-half or more Indian blood, and 

therefore, the Department could have also invoked the third definition of Indian to enable the 

tribe to organize under the IRA, as it did for the St. Croix Band. 3Senator Wheeler was, in fact, a strong supporter of the IRA as adopted. When he presented 

the bill for a vote before the entire Senate, he stated: ‘‘This bill . . . seeks to get away from 

the bureaucratic control of the Indian Department, and it seeks further to give the Indians the 

control of their own affairs and of their own property; to put it in the hands either of an Indian 

council or in the hands of a corporation to be organized by the Indians. I, myself, thinking that 

this bill, as now presented, is the greatest step forward the Department has ever taken with 

reference to Indians.’’ 73 Cong. Rec. 11,123 (1934). Senator Wheeler specifically noted that the 

acquisition of lands was one of the main purposes of the IRA, and that the Department had 

the authority to acquire new trust lands for both Indian tribes and for individual Indians. Id. at 11,123, 11,126 (noting that ‘‘[t]he second purpose is to provide for the acquisition, through 

purchase, of land for Indians now landless who are anxious and fitted to make a living on such 

land,’’ and, in response to questions from a fellow Senator, stating that Section 5 applied ‘‘not 

[just] for Indian tribes, but for both tribes and individual Indians’’). 

Scholars have noted that Senator Wheeler’s original resistance to the IRA was due to many 

non-substantive factors in addition to his pro-assimilationist views. The first bill was drafted 

without congressional input, and it was lengthy (in excess of 50 pages) and poorly written. 

Senator Wheeler did not get along with Commissioner Collier. And finally, Senator Wheeler was 

initially not convinced that President Roosevelt supported the bill. When the bill was shortened 

and revised, with Senator Wheeler’s input, and when President Roosevelt expressed his strong 

support for the bill, Wheeler became a strong advocate for its passage. Rusco, supra at 232– 

26, 240–41. 

acknowledged by OFA. Determination for Federal Acknowledgment of the Grand 

Traverse Band of Ottawa and Chippewa Indian Tribe, 45 Fed. Reg. 19,321 (1980).1

The Little Traverse Bay Bands of Odawa Indians and the Little River Band were 

recognized through congressional legislation. Little River Band of Ottawa Indians 

and Little Traverse Bay Bands of Odawa Indians, P.L. 103–324, 108 Stat. 2156 

(Sept. 21, 1994). And the Grand River Band is still seeking Federal acknowledgment; the OFA has promised to issue its decision with respect to the Band by April 

23, 2019. See Letter from Director, OFA to Chairman, Grand River Band (Mar. 21, 

2019), available at https://www.bia.gov/sites/bia.gov/files/assets/asia/ofa/petition/ 

146_grrvbd_MI/146_pf_ext_2019_04.pdf. 

There are undoubtedly more examples of tribes that organized or otherwise received certain benefits of the IRA under the second definition of ‘‘Indian.’’ These two 

decisions, however, demonstrate that the Department’s decision to take land into 

trust for the Mashpee in 2015 under the IRA’s second definition of ‘‘Indian’’ was consistent with its prior rulings. Like the Grand Traverse Band and other Michigan 

Indian tribes, in 1934, the Department could have extended the benefits of the IRA 

to the Mashpee using any of the IRA definitions of ‘‘Indian,’’ 2 and it was only 

Federal mistake and/or neglect that prevented the Mashpee from accessing these 

benefits. That mistake should not continue to have the force of law. 

Question 2. Your written testimony goes into some detail regarding the intent of 

the 73rd Congress (particularly the intent of Senator Burton Wheeler, Chairman of 

the Senate Indian Affairs Committee) in its enactment the IRA. According to your 

testimony, Senator Wheeler was an assimilationist. Did the other members of the 

House and Senate Indian Affairs Committees share or oppose Senator Burton’s policy 

views in this respect? Are the views of these other Members important in an analysis 

of the intent of the 73rd Congress in its enactment of the IRA? 

Answer. Views of Congress in enacting the IRA: 

My prior testimony highlighted Senator Wheeler’s views because the statutory 

language interpreted in Carcieri was added in direct response to the concerns he 

expressed in a series of committee hearings. Additionally, it seemed important that 

even Senator Wheeler, who held pro-assimilationist views that ‘‘were extreme even 

for [his] time,’’ would not have supported the constrained interpretation of Section 

19 of the IRA that the Court reached in Carcieri.3 Elmer R. Rusco, A Fateful Time: 

The Background and Legislative History of the Indian Reorganization Act 241 

(2000). 

In adopting its interpretation of the IRA, the Carcieri Court claimed that the 

word ‘‘now’’ meant ‘‘at the time of enactment.’’ But the word ‘‘now’’ could just have 

easily referred to ‘‘at the time the statute is applied,’’ as it does in numerous other 
36 

statutes. See, e.g., Comment to Uniform Child Custody Jurisdiction Act, § 14(a)(1) 

(explaining that the word ‘‘now’’ in the phrase ‘‘does not now have jurisdiction,’’ 

means ‘‘at the time of the petition,’’ and not when the statute was enacted). If 

Congress wanted to limit the phrase ‘‘now under Federal jurisdiction’’ to the date 

of enactment of the IRA, it could have done so easily by referencing a particular 

date. After all, the second definition of Indian in Section 19 refers to ‘‘descendants 

of such members who were, on June 1, 1934, residing within the present boundaries 

of any reservation.’’ 

Typically, when there is ambiguity in a statute, courts defer to the reasonable interpretation of the executive branch agency charged with implementing that statute, 

particularly if that interpretation is memorialized in regulations promulgated 

through notice-and-comment rulemaking. See, e.g., Chevron U.S.A. v. NRDC, 467 

U.S. 837 (1984). Yet in Carcieri, the Court ignored the Department’s land-into-trust 

regulations, which had been in place for more than 25 years and extended the benefits of the IRA to all federally recognized tribes. 25 C.F.R. §§ 151.2(b), (c)(1) (2009). 

The Court also ignored the Indian canons of construction, which state that ‘‘statutes 

are to be construed liberally in favor of the Indians.’’ Bryan v. Itasca County, 426 

U.S. 373, 392 (1976). 

Nothing in the legislative history of the IRA clarifies this ambiguity in a way that 

would support the Court’s decision in Carcieri. In terms of legislative history, the 

most probative evidence of congressional intent can be found in the official House 

and Senate Reports. See, S. Rep. No. 73–1080 (1934) (‘‘Senate Report’’); H.R. Rep. 

No. 73–1804 (1934) (‘‘House Report’’); H.R. Rep. No. 73–2049 (1934) (‘‘Conf. Rep.’’). 

These reports indicate that Section 5, which authorizes the Department to take land 

into trust for Indian tribes, was supposed to be construed broadly. The Senate 

Report, for example, notes that the bill was designed ‘‘to conserve and develop 

Indian lands and resources,’’ because ‘‘the land holdings of the Indians have steadily 

dwindled and a considerable number of Indians have become entirely landless.’’ 

Senate Report at 1. Section 5 was intended ‘‘[t]o meet the needs of landless Indians 

and of Indian individuals and tribes whose land holdings are insufficient for selfsupport.’’ Id. at 2. Section 7 of the bill also authorized the Secretary of the Interior 

‘‘to proclaim new Indian reservations on the lands acquired, pursuant to section 5 

of the bill.’’ Id. There is no discussion in the Senate Report of the meaning of 

Section 19, which defines the terms ‘‘Indian’’ and ‘‘tribe.’’ See id. at 3. 

The House report contains similar language. It states the purpose of the IRA: 

‘‘broadly, the measure proposes to rehabilitate the Indian’s economic life and to give 

him a chance to develop the initiative destroyed by a century of oppression and 

paternalism.’’ House Report at 6. The Act should ‘‘make many of the now pauperized, landless Indians self-supporting, [because] it authorizes a long-term program 

of purchasing land for them.’’ Id. Nothing in the House Report explains the definitions of ‘‘Indian’’ or ‘‘tribe,’’ and nothing indicates Congress’ intention to limit the 

provision of the Act to those who were ‘‘under Federal jurisdiction’’ in 1934. See id. 

at 7. 

The IRA received strong support in Congress. In the Senate, it passed by a voice 

vote. In the House, it passed by a vote of 258 to 88. Some votes in favor of the Act 

came from individuals who maintained a pro-assimilationist philosophy and there 

is no indication that they intended to limit to the benefits of the IRA to only those 

tribes that Federal officials arbitrarily determined were ‘‘under Federal jurisdiction’’ 

in 1934. Even if such a sentiment could be found, the Supreme Court has previously 

insisted that courts ‘‘are not obligated in ambiguous circumstances to strain to implement [an assimilationist] policy Congress has now rejected, particularly where to 

do so will interfere with the present congressional approach to what is, after all, 

an ongoing relationship.’’ Bryan, 426 U.S. at 388 n.14. 

The Supreme Court unfairly limited the application of this historic statute in 

Carcieri v. Salazar. This decision was wrong. Creating a dividing line based on 

whether a tribe was or was not ‘‘under Federal jurisdiction’’ in 1934, is not 

supported by any modem policy justifications. I hope that Congress will rectify this 

injustice, both for Mashpee and for other Indian tribes. 
37 

***** 

ATTACHMENT 

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. ·. DEPART,MENT:OF THE INTERIOR 

OFI'lCE OF: IfroiAH ~AIRS ., 

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38 

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40 

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41 

Mr. GALLEGO. Thank you, Ms. Routel. The Chairman now 

recognizes Ms. Richards to testify. 

STATEMENT OF CLAIRE RICHARDS, EXECUTIVE COUNSEL TO 

THE GOVERNOR, STATE OF RHODE ISLAND, PROVIDENCE, 

RHODE ISLAND 

Ms. RICHARDS. Good afternoon, Chairman Gallego, Ranking 

Member Cook, and distinguished members of the Subcommittee. 

Thank you for giving me the opportunity to speak in opposition to 

H.R. 312, the Mashpee Wampanoag Reservation Reaffirmation Act, 

and to talk a little bit about the Act’s potential effect on Rhode 

Island. My name is Claire Richards. I’m Executive Counsel to 

Governor Gina Raimondo, the governor of Rhode Island. I have 

served as legal counsel for four governors; two were Republicans, 

one was an Independent, and Governor Raimondo is a Democrat. 

My 22-year tenure has included 10 years of litigation involving the 

Indian Reorganization Act resulting in the Supreme Court’s decision in Carcieri v. Salazar. In my capacity as Governor’s Counsel, 

I regularly deal with complex legal questions surrounding the allocation of sovereignty between the state, the United States, and 

Indian tribes. 

Congress enacted the IRA to authorize the Secretary of the 

Interior to take land in trust for Indians. By its express terms, 

however, the IRA authorizes such fee-to-trust conversion only for 

those Indian tribes under Federal jurisdiction as of 1934. 

In 2015, the Secretary took land into trust for the Mashpee to 

operate a resort casino in Taunton, Massachusetts, even though the 

Mashpee were not under Federal jurisdiction as of 1934. The 

Secretary’s decision violated the IRA and was an effort to sidestep 

Carcieri. It was quickly struck down by a Massachusetts Federal 

court in a case called Littlefield v. the Department of the Interior. 
42 

Littlefield held that the Secretary’s decision to take the Taunton 

land in trust was wrong based on the plain language of the IRA. 

Responding to the Secretary’s argument that certain provisions of 

the IRA were ambiguous and therefore permitted her to convert 

the Taunton land to trust, the Court replied ‘‘with respect, this is 

not a close call: to find ambiguity here would be to find it 

everywhere.’’ 

The Mashpee Act resurrects and summarily affirms this erroneous interpretation of the IRA. In so doing, it undermines the established statutory scheme for acquiring trust lands for Indians, as 

well as the Supreme Court’s decision in Carcieri. It nullifies 

Littlefield and upends the current view of the Department of the 

Interior itself. All conclude that the Secretary is not authorized to 

take land into trust for the Mashpee or any other tribe that was 

not under Federal jurisdiction in 1934. 

The Act, and the faulty rationale upon which it premised, will 

open the door to other fee-to-trust conversions in states like Rhode 

Island whose tribes are also excluded from the trust provisions of 

the IRA. Federally recognized tribes in these states will argue that 

they stand in no different position from the Mashpee and that the 

Secretary’s discredited rationale should apply to them as well. 

Federal trust acquisitions can have serious consequences for 

states. They strip states of their jurisdiction over land, they encourage tax free and tax advantage sales on trust property, and they 

give rise to complex jurisdictional checkerboarding issues. And the 

acquisition of land in trust is often a necessary precondition to the 

establishment of a Federal Indian casino. 

Rhode Island would be particularly hard hit by such acquisitions, 

whether within the state or, as here, less than 15 miles from its 

border. As one example, Rhode Island’s Constitution gives the state 

exclusive authority to operate casinos within its borders. Rhode 

Island operates two casinos and uses its over $300 million a year 

in annual gaming revenues to fund education, infrastructure, and 

social programs for its citizens. An Indian casino in Rhode Island’s 

gaming catchment area poses a serious threat to those revenues. 

Rhode Island has experienced similar threats to revenue from the 

sale of tax-free tobacco products on Indian trust lands. 

Because of their effect on surrounding jurisdictions, trust acquisitions should strictly conform to the plain language of, and the limitations set forth in, the IRA. They should follow an orderly and 

established vetting process which includes consideration of the impact on neighboring jurisdictions. They should not be based on a 

firmly discredited legal rationale to which even the current 

Secretary of the Interior does not adhere. 

Thank you for allowing me this opportunity to raise the Governor’s concerns on this important issue and to urge the 

Subcommittee not to pass H.R. 312. I would be happy to answer 

any questions. 

[The prepared statement of Ms. Richards follows:] 
43 

1 In June 2017, the Department shared a draft revised decision with the Mashpee and the 

citizens who brought the Littlefield action denying the Tribe’s land-in-trust request. 

PREPARED STATEMENT OF CLAIRE RICHARDS, EXECUTIVE COUNSEL TO GINA M. 

RAIMONDO, GOVERNOR OF RHODE ISLAND ON H.R. 312 

Good afternoon Chairman Gallego and members of the Subcommittee. Thank you 

for giving me the opportunity to speak in opposition to H.R. 312, the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act (the Act) and to talk about the 

Act’s potential effect on Rhode Island. 

I am Claire Richards, Executive Counsel to Gina Raimondo, Governor of Rhode 

Island. I have served as legal counsel to four Rhode Island governors; two were 

Republicans, one was an Independent, and Governor Raimondo is a Democrat. My 

22-year tenure has included 10 years of litigation involving the Indian 

Reorganization Act of 1934 (the IRA) resulting in the Supreme Court’s decision in 

Carcieri v. Salazar. In my capacity as Governor’s Counsel, I regularly deal with 

complex legal questions surrounding the allocation of sovereignty between the state, 

the United States and Indian tribes. 

Congress enacted the IRA to authorize the Secretary of the Interior to take land 

in trust for Indians. 25 U.S.C. § 5108. By its express terms, however, the IRA 

authorizes such fee-to-trust acquisitions only for those Indian tribes under Federal 

jurisdiction as of 1934. Carcieri v. Salazar, 555 U.S. 379, 382 (2009). 

In 2015, the Secretary took land into trust for the Mashpee to operate a resort 

casino in Taunton, Massachusetts, even though the Mashpee were not under 

Federal jurisdiction as of 1934. The Secretary’s decision violated the IRA and was 

an effort to sidestep Carcieri; it was quickly struck down by a Massachusetts 

Federal court in Littlefield v. U.S. Dep’t of the Interior, 199 F.Supp. 3d 391 (D. Mass. 

2016), appeal pending, No. 16–2481 (1st Cir. 2016). Littlefield held that the 

Secretary’s decision to take the Taunton land in trust was wrong based on the plain 

language of the IRA. Responding to the Secretary’s argument that certain provisions 

of the IRA were ambiguous and therefore permitted her to convert the Taunton land 

to trust, the Court replied: ‘‘[w]ith respect, this is not a close call: to find ambiguity 

here would be to find it everywhere.’’ Id. at 396. 

The Act resurrects and summarily affirms this erroneous interpretation of the 

IRA. In so doing, it undermines the established statutory scheme for acquiring trust 

lands for Indians, as well as the Supreme Court’s decision in Carcieri. It nullifies 

Littlefield and upends the current view of the Department of the Interior itself.1 All 

conclude that the Secretary is not authorized to take land into trust for the 

Mashpee or any other tribe that was not under Federal jurisdiction as of 1934. 

The Act—and the faulty rationale upon which it is premised—will open the door 

to other fee-to-trust conversions in states, like Rhode Island, whose tribes are also 

excluded from the trust provisions of the IRA. Federally recognized tribes in these 

states will argue that they stand in no different position from the Mashpee and that 

the Secretary’s discredited rationale should apply to them as well. 

Federal trust acquisitions can have serious consequences for states. They strip 

states of their jurisdiction over land, they encourage tax free and tax-advantaged 

sales on trust property and they give rise to complex jurisdictional 

‘‘checkerboarding’’ problems. And, the acquisition of land in trust is often a necessary precondition to the establishment of a Federal Indian casino. 

Rhode Island would be particularly hard hit by such acquisitions, whether within 

the state or, as here, less than 15 miles from its border. As one example, Rhode 

Island’s Constitution gives the state exclusive authority to operate casinos within 

its borders. Rhode Island operates two casinos and uses its over $300 million in annual gaming revenues to fund education, infrastructure and social programs for its 

citizens. An Indian casino in Rhode Island’s gaming catchment area poses a serious 

threat to the state’s gaming revenue. Rhode Island has experienced similar threats 

to revenue from the sale of tax free tobacco products on Indian trust lands. 

Because of their effect on surrounding jurisdictions, trust acquisitions should 

strictly conform to the plain language of, and limitations set forth in, the IRA. They 

should follow an orderly and established vetting process which includes consideration of the impact on neighboring states. They should not be based on a firmly discredited legal rationale to which even the current Secretary of the Interior does not 

adhere. 

Thank you again for allowing me this opportunity to raise the Governor’s concerns 

on this important issue and to urge the Subcommittee not to pass the H.R. 312. I 

would be happy to answer any questions. 
44 

Mr. GALLEGO. I thank the expert witnesses for their powerful 

testimony, reminding the Members that Committee Rule 3(d) puts 

a 5-minute limit on questions. The Chairman will now recognize 

Members for any questions they wish to ask the witnesses. I will 

start by recognizing myself for 5 minutes. 

This question is for the Honorable Jessie Little Doe Baird. From 

your testimony, you seem to have a lot of local support for your 

tribe and your economic development initiative. What local support 

do you have and why is there opposition from the state of Rhode 

Island, although I think I just plainly heard the answer, and does 

your tribe’s bill affect the jurisdiction of Rhode Island in any way? 

Ms. BAIRD. Thank you. I think the reason that we have opposition from the state of Rhode Island we have just heard, fully a 

third of their state revenue is generated from their casinos, the 

state casinos, and our legislation has absolutely no impact on the 

state of Rhode Island in terms of jurisdiction taxes or anything 

else. We do have full support from our local legislature, the city of 

Taunton, the town of Mashpee, Chambers of Commerce, and I 

think it is pretty clear that the reason the state of Rhode Island 

opposes our bill is because it wants to protect its current monopoly 

on the gaming industry in southern New England. It has been successful in using the courts to crush the Narragansett Tribe and it 

now is attempting to use Congress to do the same to Mashpee. 

Mr. GALLEGO. Thank you. Mr. Washburn, in your testimony, you 

mentioned the Patchak Patch, an administrative policy that eliminated the 30-day waiting period for implementation of land-intotrust decisions. Although trust decisions can be challenged through 

administrative or judicial litigation, this policy allowed the land to 

stay in trust pending the outcome. 

What are the legal ramifications of not having this policy in place 

during the land-into-trust process? And do you know if the Trump 

administration has been receptive to implementing a similar 

policy? 

Mr. WASHBURN. Thank you, Mr. Chairman. We instituted the 

Patchak Patch, so called, during the Obama administration basically so that land would go into trust immediately rather than 

waiting for 30 days. The reason the Federal Government originally 

waited for 30 days was to give people time to challenge that and 

bring litigation if they wanted to do so. What we learned was that 

it was really a delay tactic. People would challenge it and litigation 

would go on for years and years and that was just for purposes of 

delay. Ultimately, the United States would win that litigation, but 

meanwhile the land would not have been in trust for as many 

years as litigation went on. So, the Patchak Patch was a way to 

say, we are going to take the land into trust immediately and if 

there is any litigation, it can happen while the land is already in 

trust. 

My sense is that the Trump administration is revisiting the approach that the Obama administration used, and they have been 

trying to do consultations and have discussions around changing 

the land-into-trust rules to make them less favorable for tribes. 

Thank you. 
45 

Mr. GALLEGO. Thank you, Mr. Washburn. Ms. Routel, other than 

the Mashpee, how many times have you witnessed a tribe face 

challenges to their fee-to-trust applications due to Carcieri? 

Ms. ROUTEL. It is really hard to put a number on it because 

there are countless challenges that come at the application stage 

that never make their way into the courts. When we look at challenges that have been brought in the Federal courts and in front 

of the Interior Board of Indian Appeals, we are talking about some 

50 reported decisions at this point. So, there has been a large 

amount of litigation, and a lot of it has been litigation that, as 

Dean Washburn mentioned, we would consider to have been 

brought just to delay tribes that there is no doubt that they were 

under Federal jurisdiction in 1934 because they appear on some of 

the very first lists that were created of tribes that allowed them to 

vote on application of the IRA and confirm that they either voted 

on and adopted, or disapproved IRA constitutions. 

Mr. GALLEGO. Ms. Richards, how many other casino or gaming 

enterprises has the state of Rhode Island opposed, either through 

litigation or through legislative manner outside of the state of 

Rhode Island? 

Ms. RICHARDS. To my knowledge, this is the only one, Mr. 

Chairman. 

Mr. GALLEGO. So, this is the only gaming operation, or potential 

gaming operation, that the state of Rhode Island has actively involved, even though we know there are other operations that are 

either coming on-line or have come on-line? And is it because this 

is the only opportunity to have a legal recourse using the Carcieri 

problem and that’s why you are not using it for other tribes? Or 

are other gaming institutions better funded to be more difficult for 

the Government of Rhode Island to fight them? 

Ms. RICHARDS. No, the Mashpee Reaffirmation Act is an act that 

has a direct economic impact on us, and that is why we are here 

today. 

Mr. GALLEGO. Right, but there are other gaming institutions that 

also will have a direct economic impact on the state of Rhode 

Island. Has your representation of those institutions—has the state 

of Rhode Island ever opposed, legally, in any matter any of those 

other gaming institutions? 

Ms. RICHARDS. You mean private casinos? 

Mr. GALLEGO. Yes. 

Ms. RICHARDS. We have not opposed any private casinos to my 

knowledge, and the reason for that is that private casinos operate 

on a more equal footing to Rhode Island’s casinos. It is much more 

difficult for Rhode Island’s casinos to compete against a Federal 

Indian casino because of the effective tax rate. 

Mr. GALLEGO. I find that a very dubious claim. Thank you. And 

now I would like to recognize our Ranking Member, Representative 

Cook. 

Mr. COOK. Thank you very much. I appreciate the witnesses, and 

just to carry on, Ms. Richards, on the competition from other 

casinos, if you will, and that is kind of the argument here. You do 

have two in Connecticut that are very close to the Rhode Island 

border, right? And I notice they weren’t mentioned in the threat to 
46 

the commercial interests of Rhode Island. Obviously it is just the 

Mashpee, is that correct? 

Ms. RICHARDS. The two Connecticut casinos, which are the 

Foxwoods and the Mohegan, they are not far from the Rhode Island 

border. On the other hand, they certainly predate my time in office. 

They predate Carcieri. And they may even predate some of our own 

gaming operations. 

Mr. COOK. I have to be honest with you, I am very sympathetic 

to the tribe in Massachusetts, and I could get myself into serious 

trouble because I usually drive from Connecticut to Cape Code in 

the summer. I am sure I am going to have a number of speeding 

tickets going through Rhode Island if I don’t handle this correctly. 

And second, my daughter and son-in-law are both graduates of the 

University of Rhode Island, so Thanksgiving is going to be a very 

interesting time this year. 

But in the testimony that was given, I understand commercial 

interests and everything else, but as somebody who taught American History, I am very, very sympathetic to tribes and their own 

identity, and far too often I think so many tribes have been on the 

verge of extinction because of some of the things that have happened in the past. I’m from California, I know the wars between 

casinos and gaming and everything else, but I still have a tendency 

to side with the history, the heritage, and everything else. Gaming 

may be a transcendent thing, so right now I am very, very sympathetic to the testimony that has been given by the Mashpee 

Indians. I yield back. 

Mr. GALLEGO. Thank you, Ranking Member Cook. I now 

recognize Chairman Grijalva for questions. 

Mr. GRIJALVA. Thank you very much, Mr. Chairman. 

In response to the Chairman’s question you answered the 

direction in which I wanted to ask you as well. 

Ms. Richards, let me just follow up on some questions. After the 

Carcieri decision in 2009 that involved a tribe in Rhode Island, 

ultimately this decision led to the Supreme Court ruling that land 

cannot be taken into trust for tribes recognized after the Indian 

Reorganization Act of 1934, which brings us to today, and brings 

us to Mr. Cole’s legislation. 

Why do you believe that land is only afforded to tribes recognized 

before 1934? 

Ms. RICHARDS. To be perfectly honest, Mr. Chairman, I don’t 

think there’s a great reason why there should be two classes of 

tribes, those under jurisdiction prior to 1934 and those under jurisdiction after 1934. For that reason, I have not testified against 

Representative Cole’s bill, which is H.R. 375. That would extend 

the IRA to all tribes regardless of when they were under 

jurisdiction. 

I think the state of Rhode Island, if that bill were to pass, would 

really urge a total revamp of the IRA, and the revamp would include setting standards for the acquisition of tribal trust property, 

for taking into account the impact of trust property on local jurisdictions, for making a system that is transparent which has clear 

and objective standards, gives local jurisdictions significant role in 

the process, a substantial role in the process, gives timely notifications to jurisdictions—— 
47 

Mr. GRIJALVA. Essentially providing to, in this instance, a state 

degree of veto power over land being taken into trust, correct? 

Ms. RICHARDS. Some degree of consultation, just as you, Mr. 

Chairman, seek full consultation between tribes and the Federal 

Government, the state and local jurisdictions would also seek to be 

heavily involved. I think one of the things that—— 

Mr. GRIJALVA. So, you don’t see Mr. Keating’s legislation as 

complementary to the position that you just said, you don’t think 

there should be two standards of tribes. 

Ms. RICHARDS. I do not see it as complementary, no. 

Mr. GRIJALVA. And correcting what is essentially a precedent 

that does establish two different standards for tribes, particularly 

the issue we are dealing with of land being taken into trust? 

Ms. RICHARDS. I think Mr. Cole’s bill, H.R. 375, would address 

the parity issue between the pre-1934 Act tribes and the post-1934 

Act tribes, but I do think a total revamp of the IRA to be more 

responsive to states’ interests would be called for. 

Mr. GRIJALVA. I think that that would be significant and I think 

an undercutting of sovereignty trust responsibility if we were to establish a precedent that essentially, whether you want to call it 

consultation, but would provide a state or another local entity, a 

municipality, a county, essentially veto power over a process that 

is devoid of those other interests. 

Ms. RICHARDS. I don’t see it as veto power, but I think it is very 

important to keep in mind the host jurisdiction’s impacts that arise 

as a result of a fee-to-trust acquisition. 

Mr. GRIJALVA. Tomato-tomatoe, but I think it is veto power. Let 

me yield back, Mr. Chairman, and I appreciate the time. 

Mr. GALLEGO. Thank you Mr. Chairman. And we now recognize 

Representative Keating. 

Mr. KEATING. Thank you Mr. Chairman. Attorney Richards, you 

broadened your arguments in your remark to say, basically, that 

all states should be concerned about this. And I just want to ask 

you, we tailored this bill directly from the legislation in Gun Lake 

and the Virginia tribal legislation. So, if this is such a concern to 

all states, did you take any formal opposition as a state to those 

two pieces of legislation? 

Ms. RICHARDS. We did not. I am not familiar with those pieces 

of legislation, unfortunately. 

Mr. KEATING. Well, I will tell you that they are almost identical 

to this legislation. And do you happen to know how the Rhode 

Island congressional delegation voted on one of those bills? 

Ms. RICHARDS. I don’t know. 

Mr. KEATING. I will inform you. They were in support of those 

bills, so the congressional delegation from Rhode Island supported 

the very same legislation as this. 

Just another question. Your background in law is one of jurisdictions, and you mentioned state jurisdiction and U.S. jurisdiction. 

You can clearly, I think, can’t you, know the boundaries and jurisdictions of a particular state? 

Ms. RICHARDS. I do know the geographic boundaries of the state. 

Mr. KEATING. Of a state. 

Ms. RICHARDS. I certainly am aware of those. 
48 

Mr. KEATING. Could you say you could define the boundaries of 

America? Of the United States? 

Ms. RICHARDS. I don’t really think I understand your question. 

Mr. KEATING. Do you believe that America, the United States, 

has a boundary around it? 

Ms. RICHARDS. Yes. 

Mr. KEATING. Thank you. So, I have a question for you. Can you 

define what you included in your testimony; can you define this entity? You said you defined an entity as the ‘‘Rhode Island’s gaming 

catchment area.’’ 

Ms. RICHARDS. Yes. 

Mr. KEATING. What is that jurisdiction? What does that mean? 

Ms. RICHARDS. Normally when people discuss gaming or any 

kind of casino, they draw a circle around the casino—— 

Mr. KEATING. What’s the circle? 

Ms. RICHARDS. It is a certain geographic circle. 

Mr. KEATING. What is it though? You are here. 

Ms. RICHARDS. I think it is about a hundred miles. 

Mr. KEATING. So, that is an official boundary? The question 

then—are you aware that Massachusetts already has approved a 

casino in that southeastern Massachusetts area, regardless of this? 

Ms. RICHARDS. I am. 

Mr. KEATING. So, what you are saying is you don’t want this particular piece of legislation that will keep a tribe in existence versus 

another one that is already approved by Massachusetts that you 

can’t do much about, it is going to have the same effect, if not 

more, on your gaming. So, how could you do this to the tribe? 

Ms. RICHARDS. Because as I explained earlier to the Committee, 

Indian gaming operations do not operate on an equal footing from 

private casinos. 

Mr. KEATING. You are missing my point here. There is still going 

to be a casino there. 

Ms. RICHARDS. That is right. 

Mr. KEATING. And you are saying the biggest reason you are here 

is Rhode Island is going to lose money with those Massachusetts 

plates that come over the border. 

Ms. RICHARDS. What I am saying is that there are impacts on 

Rhode Island from having fee-to-trust conversions. They are not 

limited to casinos. They also include the tax free and tax advantage 

sales of any product. Those tax free and tax advantage sales from 

trust properties affect Rhode Island very clearly even though they 

may not be located within its borders. 

Mr. KEATING. So, you are in favor of a casino from Massachusetts 

on the other side of the border then? 

Ms. RICHARDS. Pardon me? 

Mr. KEATING. You are in favor, if that is your point, then you are 

in favor of a casino on the other side of the border, just not this 

one. So, Rhode Island’s position, the Governor’s position is that you 

favor a casino in southeastern Massachusetts next to your border. 

Ms. RICHARDS. We are neutral on opposing casinos that operate 

under the same competitive footing as Rhode Island’s. 

Mr. KEATING. So, just for the record, it is good that the Rhode 

Island people know that you are not opposing a casino on the other 
49 

side of your border and the revenues that might be lost according 

to your arguments. I yield back. 

Mr. GALLEGO. Thank you Representative Keating. Further 

questions for Ms. Richards. 

Has there been an economic impact study, not on the gaming 

side, but on what you claim is going to be the impact of sales of 

tobacco and other non-taxable goods on the state of Rhode Island? 

Ms. RICHARDS. I am not aware of a study that we have because 

we haven’t confronted this. In 2002, the Narragansett Indian Tribe 

started the tax advantage sales of tobacco products from trust 

lands within Rhode Island and the state took immediate action, but 

we did not have an impact analysis done. 

Mr. GALLEGO. You do understand why just 1 second ago you said, 

the other reason why we are against this is because of non-taxable 

goods such as tobacco sales. And then when I asked you have you 

done a study what the impact is, you said you don’t know what the 

impact would be. So, it makes it very difficult for me to understand 

your position. If you don’t understand what the impact is, how can 

you say it is actually going to affect Rhode Island? You are just 

guessing. 

Ms. RICHARDS. Well, the differential between taxed tobacco products and untaxed tobacco products is enormous, and I think most 

people—— 

Mr. GALLEGO. Enormous in what sense? Are we talking a couple 

hundred thousand? Million? Two million? Ten million? You don’t 

know, but yet you are coming here and testifying and somehow 

making a decision—not you, but obviously at the behest of your 

Government—that that is a reason why to stop the Mashpee from 

actually having recognition. What I am saying is if you are going 

to come here and say that, at least have a claim and some money 

and a study attached it. 

Ms. RICHARDS. We have experienced from our own jurisdiction— 

we haven’t done a study because we don’t have tax free or tax advantage sales going on right now, but we did in 2003 have them, 

and we determined for ourselves that it would be a serious impact 

on our tobacco revenues. I cannot, at this moment, give you the 

exact amount of the impact. 

Mr. GALLEGO. But you can feel comfortable enough to use it as 

an argument to stop this tribe from being federally recognized? 

Ms. RICHARDS. Yes, I can. 

Mr. GALLEGO. Representative Gosar. 

Dr. GOSAR. Thank you Mr. Chairman and Republican Leader 

Cook for allowing me to participate in this important hearing 

today. I am especially grateful to Mr. Cook for his leadership on 

the Subcommittee and on these issues. 

The so-called RESPECT Act is an extremely radical proposal that 

would shut down important operations within the Federal Government until the lengthy and unrealistic consultation and coordination requirements prescribed by the bill are met. It is so broad and 

far-reaching that even the Obama administration opposed a nearly 

identical version of this bill. This bill would cause catastrophic 

harm to local communities and increase things like permitting 

times, negatively impacting grazing, responsible energy production, 
50 

forest thinning and important infrastructure projects in that 

process. 

We all want tribes in local communities to have a way in which 

activities that impact their daily lives, but this bill isn’t the way 

to go about that. A better model is the provision in the La Paz 

County Land Conveyance Act that I worked on with the Colorado 

River Indian Tribe to include. 

H.R. 375, the so-called Clean Carcieri Fix, is another bill I opposed in its current form. H.R. 375 contradicts a Supreme Court 

ruling and the Indian Reorganization Act of 1934. We have seen 

previous Departments of the Interior take off reservation land into 

trust against the will of states, compacts and local communities for 

the sole purpose of building new casinos. 

This was certainly the case in my state with the Tohono O’odham 

Nation, who covertly acted against its fellow tribes, the state of 

Arizona, and the general public to open an off-reservation casino in 

Glendale. Litigation discovery and audio recordings affirmed this 

shameful conspiracy implemented by the Tohono O’odham. I am 

concerned that H.R. 375, as written, will encourage the same 

future abuse in that regard. 

Finally, H.R. 312 is contrary to current view of the Department 

of the Interior, contradicts a Supreme Court decision and aims to 

reverse Federal court decisions on this matter in order to build a 

massive 400,000 square-foot off-reservation gaming complex for the 

benefit of a Malaysian gaming company. 

Besides benefiting this Malaysian company, H.R. 312 has close 

ties and origins associated with corrupt DC lobbyist Jack Abramoff 

and Senator Elizabeth Warren. The Mashpee Tribe paid tens of 

thousands of dollars to Abramoff, and the chairman of the tribe at 

that time was sentenced to 41 months in prison for crimes he committed in conjunction with efforts to secure Federal recognition. 

The Mashpee Tribe was not a federally recognized tribe until it received an administrative recognition in 2007. 

If H.R. 312 is passed, Congress will declare years of fighting and 

victories by local stakeholders as if they never happened. Congress 

will also take the view that current Federal law shouldn’t apply to 

the Mashpee Tribe. 

Ms. Richards, you testified that if this massive 400,000 squarefoot off-reservation gaming complex is allowed to be built in 

Massachusetts, the state of Rhode Island will suffer significant 

harm with regards to revenue for education, infrastructure, and social programs. Can you elaborate a little more on this harm, and 

reiterate why the Governor and people of Rhode Island oppose this 

bill? 

Ms. RICHARDS. Mr. Gosar, we have conducted an impact analysis 

which I can provide to you. I am not familiar enough with the contours of that to talk about it at the moment. 

Dr. GOSAR. We would appreciate that. Vice Chairman Baird, how 

will the tribe ever make money from this casino project in light of 

the $450 million debt that the tribe owes in Genting which would 

operate the casino? Is this bill actually a financial bail-out for 

Genting? 

Ms. BAIRD. It is Vice Chairwoman, Representative. 

Dr. GOSAR. I am sorry. 
51 

Ms. BAIRD. And I would first like to state that for me, as a 

Mashpee Wampanoag woman, mother, grandmother and a leader 

of my community, and as a woman whose blood and bones have 

been in my territory for 12,000 years, I am sitting here today with 

one purpose in mind: to keep the land under my people’s feet. 

I also want to state that because the Federal Government has 

forced this tribe and other tribes into two processes that are very 

lengthy and very expensive: (1) the Federal acknowledgement process; and (2) the land in trust process for which the Federal Government provides no funding to assist those tribes, we are forced to 

enter into agreements and find funding to help us get through 

these processes, and they are very expensive. The Federal acknowledgement process alone took 30 years and cost us millions of 

dollars, as did the land in trust process. 

Dr. GOSAR. I find that, Mr. Chairman, a little obvious that that 

service being over $350 million that you will never get out from underneath that debt. I yield back. 

Mr. GALLEGO. Thank you Representative Gosar. Now I would 

like to recognize Chairman Grijalva. 

Mr. GRIJALVA. Thank you very much. 

Dean Washburn, if Congress does not act on righting this wrong 

Carcieri decision, what do you foresee in the next 10 years of 

having this type of decision on the books for Indian Country? 

Mr. WASHBURN. Chairman, it is just going to keep causing problems, it is going to keep causing litigation. As my colleague 

Professor Routel testified, it gets brought up in a lot of these cases 

and has to be litigated and you need expert witnesses to go out, 

historians, to go out and gather up a bunch of documents and kind 

of like Vice Chairwoman Baird was just talking about, these experts are very expensive and they end up causing tremendous 

delay. And it means that some tribes may never get land in trust, 

and that is really the problem, and every tribe deserves to have a 

homeland. 

Mr. GRIJALVA. Professor, the same question from your 

perspective, if we don’t do this Clean Fix that is before us. 

Ms. ROUTEL. Well, the starkest example is really the tribes that 

were recognized through the OFA process that spent 20, 30 years 

to gain that recognition, that expended enormous resources, and in 

all those cases, they had to prove, sometimes from historic times 

all the way to the present that they continued to exist. They had 

to prove that they continued to exist socially and politically, that 

outsiders recognized them, and they had to amass an enormous 

quantity of documents. Yet, after standing in line and going 

through that whole process, they are now faced with never having 

any land into trust. Meanwhile, other tribes that were in a similar 

position were recognized by Congress and they all received language in their recognition bills that specifically allow them to receive the benefits of the IRA, and some of them mandatory trust 

acquisitions. 

What Ms. Richards was saying about tribes, like the Mashpee 

being tax free is a myth in Indian Country. Native people pay taxes 

and tribes do. The Federal Government taxes Indian gaming operations. And there are taxes that flow, it’s just they won’t flow to 

Rhode Island because of those borders. 
52 

But the Mashpee will create 7,000 new jobs; they will give $50 

million in revenue to the state of Massachusetts. In addition to 

that, there is $100 million in revenues that is projected to go to the 

city that the casino is sited in. 

And this notion of tobacco taxes, the Supreme Court has repeatedly held that tribes, when they sell tobacco to non-Natives, they 

actually have to collect a state tax. So, again, there will be a tax 

on those sales, it’s just the tax will be turned over to the state of 

Massachusetts. 

The tribes are not at a competitive advantage here. Mashpee just 

wants what every single other tribe in the country has, which is 

a permanent homeland. 

Mr. GRIJALVA. And the compact with Arizona, all the 22 tribes 

and those that do have gaming as part of their enterprises, paid 

to the state. That revenue goes into, unfortunately to a what I 

think is a black hole, but that is another story. 

Mr. Chairman, with all due respect, I have to leave for amendments on the Floor. The next panel was to discuss the RESPECT 

Act. I apologize for not being here for those questions. I will be submitting those in writing to you to forward. And to the other panelists that are going to speak to that issue, my apologizes. I need to 

be there. I thought that this would go faster than it did. I yield 

back, and thank you very much. 

Mr. GALLEGO. Thank you Mr. Chairman. If there are no further 

questions, we are going to move on to the second panel. All right, 

excellent. 

Let me again remind the witnesses that under our Committee 

Rules, they must limit their oral statements to 5 minutes, but it 

does not have to be 5 minutes, but the entire statement will appear 

in the hearing record. When you begin, the lights on the witness 

table will turn green. After 4 minutes, the yellow light will come 

on. Your time will have expired when the red light comes on and 

I will ask you to please complete your statement. I will also allow 

the entire panel to testify, minus Mr. Washburn who already gave 

his testimony, before questioning of the witnesses. 

Our first witness is going to be Ms. Vanessa Ray-Hodge, Partner 

at—I apologize if I say this incorrectly—Sonosky, LLC, and former 

Senior Counselor to the Solicitor at the Department of the Interior; 

and finally Mr. Matthew Fletcher, Professor of Law and Director 

of Indigenous Law and Policy Center at Michigan State University 

College of Law; as well as again Mr. Kevin Washburn. 

The Chair now recognizes Vanessa Ray-Hodge to testify. 

STATEMENT OF VANESSA L. RAY-HODGE, PARTNER, SONOSKY, 

CHAMBERS, SACHSE, MIELKE & BROWNELL, LLP, 

ALBUQUERQUE, NEW MEXICO 

Ms. RAY-HODGE. Good afternoon, Chairman Gallego and 

members of the Subcommittee. My name is Vanessa Ray-Hodge 

and I am an enrolled member of the Pueblo of Acoma and a 

partner in the law firm of Sonosky, Chambers. I regularly represent Indian tribes throughout various tribal consultation processes. I previously served as the Senior Counselor to the Solicitor 

at the Interior, and actively participated in numerous FederalTribal consultations and in the development of the Interior’s Tribal 
53 

Consultation Policy. And I have to say from my experience at the 

Interior, tribal consultation doesn’t necessarily slow down the 

Federal process if it is done right. 

I support and applaud Congressman Grijalva’s bill, which would 

codify the principles of Executive Order 13175 into law and establish a legally enforceable consultation obligation for all Federal 

agencies. The United States has a long history of enacting policies 

or authorizing infrastructure development projects over the objections of tribes, which has often resulted in the destruction of tribal 

communities and culture. Tribal consultation is implemented differently by each Executive Department, and the sad reality, especially now, is that tribal consultation is often treated as just a box 

to check, or completely ignored. 

But Executive Order 13175 was intended to treat tribes as 

sovereign nations and recognize that the United States had policies 

in the past that placed tribes on reservations, oftentimes removing 

them from their aboriginal homelands where many tribes continue 

to have treaty rights and cultural and sacred sites. The ad hoc 

manner in which consultation is implemented by Federal agencies 

has resulted in frustration by Indian tribes and widespread discounting of tribal governments and their concerns. This has created 

an adversarial process rather than a cooperative one in which 

tribes are seen as valued partners that can improve the decisionmaking process in a manner that respects tribal rights. 

The RESPECT Act takes a major first step toward changing the 

tribal consultation process in a good way. The Act outlines a structured process that aims to ensure that tribes can participate fully 

in consultation, and consultation must occur early and often. In my 

experience, I have often found that there is a lack of Federal decision makers who are directly involved in consultation. Instead, 

agency staff often attend and they are not authorized or able to answer questions or provide meaningful feedback to Indian tribes. 

Tribes are left having a one-sided dialogue and are usually only 

informed about how their concerns were addressed after a final 

decision is rendered. The RESPECT Act would bring a muchneeded change in this process by requiring a two-way dialogue 

between Federal agencies and tribes. 

An important component that would also help improve the consultation process is to require training for Federal employees who 

participate in consultation and to agency decision makers. A core 

objective of tribes during consultation is to provide Federal decision 

makers with context and information needed to support informed 

decisions that protect tribal interests. Tribal concerns are often 

misunderstood or overlooked by those without any background in 

the unique history and relationship that the United States has 

with Indian tribes. 

With the right tools, consultation can provide a solid foundation 

for Federal decisions, but Federal agencies must recognize and 

apply these principles. Where Federal actions relate to applicants 

seeking Federal approval for a project, the consultation process 

should also require that applicants meet with, consider, and address tribal concerns. There should not be an expectation that applicants can ignore tribes and just work with Federal agencies. And 

Federal agencies shouldn’t be able to hide behind applicants. 
54 

When all parties come together, I have seen positive working relationships result, even when it requires modifications of a project. 

And while there might not always be agreement, Federal agencies 

have a trust responsibility to take a hard look and deal with tribal 

concerns. In this regard, the Act should specifically recognize 

Federal agencies affirmative obligations to protect tribal treaty 

resources, sacred sites, and trust lands. 

Indeed, in 2006, nine Federal agencies signed an MOU recognizing this obligation must be considered when making Federal 

decisions impacting tribal interests. The goal of making tribal 

consultation judicially reviewable is also a critical component for 

accountability. In sum, the draft RESPECT Act is a welcome piece 

of legislation that is long overdue. 

I appreciate the opportunity to provide these comments and 

would be happy to answer any questions you may have. 

[The prepared statement of Ms. Ray-Hodge follows:] 

PREPARED STATEMENT OF VANESSA L. RAY-HODGE, SONOSKY, CHAMBERS, SACHSE, 

MIELKE & BROWNELL, LLP ON THE DRAFT OF THE RESPECT ACT

By Invitation of the Subcommittee, Not on Behalf of Any Client 

Good Afternoon Chairman Gallego and members of the Subcommittee, thank you 

for the opportunity to provide feedback on the draft RESPECT Act. I am Vanessa 

L. Ray-Hodge, an enrolled member of the Pueblo of Acoma and a partner in the law 

firm of Sonosky, Chambers, Sachse, Mielke & Brownell (500 Marquette Ave., N.W., 

Suite 600, Albuquerque, NM 87111. Telephone: 505-247-0147). I regularly represent 

Indian tribes on a variety of matters, including working with Indian tribes and 

Federal agencies throughout the tribal consultation process for projects that occur 

on and off Reservation or trust lands. I previously worked as the Senior Counselor 

to the Solicitor at the Department of the Interior and actively participated in 

numerous Federal-Tribal consultations on behalf of the Department. 

I support and applaud Congressman Grijalva’s bill, which would codify the 

principles of Executive Order 13175 into law and establish a legally enforceable consultation obligation for all Federal agencies. 

The United States has a long history of authorizing infrastructure development 

projects over the objections of Indian tribes. This abdication of Federal trust and 

treaty obligations has had devastating effects on tribal communities and cultures. 

Indeed, the most recent protest (NODAPL) against the Dakota Access Pipeline near 

the Standing Rock Sioux Reservation brought to light many of the shortfalls of the 

Federal Government’s current consultation policy. After the NODAPL movement, I 

worked with the National Congress of American Indians on drafting comprehensive 

Tribal comments relating to the shortfalls of the current consultation process and 

attach those comments here for your reference. 

Under the current Tribal consultation framework, Federal permitting agencies 

tend to treat Indian tribes as members of the public, entitled to only limited information and the ability to submit comments, rather than incorporating tribes into 

decision-making processes as is done for non-Federal governmental entities. But 

Indian tribes are not members of the public. Tribes are sovereign governments that 

retain their inherent rights to govern their own peoples, lands and natural resources. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202– 

03 (1999) (Indian tribes’ inherent sovereignty empowers them to govern their own 

citizens and territories); Cohen’s Handbook of Federal Indian Law § 4.01[1] (Nell 

Jessup Newton ed., 2012) (discussing the independent origin of Indian tribes’ 

sovereignty). At a minimum, tribes should be respected as governments and their 

unique relationship with the United States acknowledged and appropriately incorporated into Federal decision making. 

The draft RESPECT Act takes a major first step toward changing the Tribal 

consultation process in a good way. Currently there are no uniform standards or 

processes for Federal agencies to use when initiating Tribal consultation. As a result, agencies do not always implement consultation early in the Federal decisionmaking process or ensure that Indian tribes are consulted in a meaningful way. For 

example, what often happens is Federal agencies will engage with applicants and 

make major planning decisions on a project long before tribes are consulted. These 
55 

decisions invariably result in routes or project alternatives that will have the greatest impact on Tribal lands, treaty rights, and cultural and sacred sites. At that point 

it is almost impossible for tribes to have any meaningful impact throughout the consultation process to protect their rights or interests. Many of these problems could 

be resolved if tribes were consulted early and applicants were required to listen to 

Tribal concerns before any major decisions on the direction of a project are finalized 

with Federal agencies. The draft RESPECT Act helps address these inadequacies 

for the better. 

Oftentimes, there is a complete lack of Federal decision makers who are directly 

involved in consultation and there is nothing to ensure that the full range of Tribal 

rights and interests are comprehensively presented to and considered by decision 

makers. In many instances, agency staff without any decision-making authority are 

sent to Tribal consultations. Staff is usually not able to answer any questions or 

provide meaningful responses to Tribal concerns—rendering Tribal consultation just 

another box to check in the Federal review process. Nor is there any mechanism 

to hold applicants accountable for demonstrating why Tribal concerns cannot be 

resolved. 

The goal of Tribal consultation is not merely to give Indian tribes a seat at the 

table and a chance to be heard. Rather, the core objective is to provide Federal decision makers with context, information, and perspectives needed to support informed 

decisions that actually protect Tribal interests. Tribal Treaty rights, the Federal 

trust responsibility to tribes, and the environmental justice doctrine all must be 

given meaning and respected in actual Federal decisions that impact tribes. 

Consultation can provide the solid foundation for Federal decisions, but the Federal 

agencies must be willing to recognize and apply these principles in their decision 

making. 

In other words, there are at least two components to ensure that Tribal interests 

are meaningfully considered in Federal decision making. First, there must be a comprehensive and properly structured process that enables tribes to participate fully. 

Second, there must be a heightened awareness and recognition among Federal decision makers about the sources, scope, and significance of Tribal rights, and the need 

to incorporate and protect those rights in Federal decisions. The objective is to seek 

the free, prior and informed Tribal consent where fundamental Tribal interests are 

at stake. Federal decision makers must come to understand that it is in the national 

interest to uphold the promises that the United States made in treaties, and to exercise discretion consistent with the duties of a trustee to tribes. And this understanding must guide every decision that impacts Tribal interests. 

The draft RESPECT Act does a good job at starting to outline a uniform process 

for engaging in Tribal consultation across all Federal agencies. However, the Act 

should specifically mention Federal agencies’ obligation to protect Tribal treaty 

resources, sacred sites and trust lands. The Act should make clear that Tribal consultation triggered by a Federal undertaking that implicates Tribal lands and interests is different than Tribal consultation required under Section 106 of the National 

Historic Preservation Act. In addition, if a Federal undertaking requires the development of an Environmental Assessment or Environmental Impact Statement in accordance with the National Environmental Policy Act (‘‘NEPA’’), the Act should 

expressly provide that Indian tribes whose lands or interests will be impacted must 

be consulted during the environmental review process. Federal agencies must also 

ensure that even where an applicant is performing the environmental review under 

NEPA, affected Indian tribes should be joined as cooperating agencies or given an 

opportunity to meaningfully consult with the applicable Federal agencies prior to 

any finalization or approval of the environmental review documents. Tribal concerns 

and objections must be included in any final NEPA document, and Federal agencies 

must be required to explain whether or not Tribal concerns or objections were 

resolved. 

In addition, the Act should provide that all Federal personnel whose work involves participating in Tribal consultation are required to participate in comprehensive training regarding Treaty rights, the trust responsibility, the United States’ 

historical treatment of Indian tribes, and the vast differences among Tribal cultures. 

This kind of training already takes place in some situations within the Interior 

Department. The Bureau of Reclamation, for example, has developed a training program for its regional offices to learn about the trust responsibility and Indian tribes 

in the context of Indian water settlements. The Reclamation training has been successful in large part because it is provided by a well-respected Indian law professor 

and Tribal leaders who can speak about the significance of a water settlement from 

the Tribal perspective. This kind of approach needs to be implemented more broadly 

across all agencies that make decisions impacting Tribal rights and interests. 
56 

Training must be required for all agency personnel who are involved in projects 

requiring Federal approval where Indian tribes may be affected. Trainings, at a 

minimum, must include: 

• Overview of the trust responsibility and unique relationship between the 

United States and Indian tribes. 

• Overview of the United States’ historical policies impacting Indian tribes, 

including how those policies resulted in Indian tribes having significant rights 

and interests in off-reservation areas. 

• Tribal perspectives on the importance of the trust responsibility. 

These are just a few comments on the draft RESPECT Act, which is a welcome 

piece of legislation that is long overdue. At bottom, Indian tribes must be afforded 

a real opportunity to meaningfully consult with Federal agencies—and Federal 

agencies must be held accountable during the consultation process. Even if there is 

not ultimate agreement, Federal agencies have a trust responsibility to consider 

Tribal concerns and explain why any concerns were not addressed. 

I appreciate the opportunity to provide these comments and I look forward to 

working with the Subcommittee and the Committee on finalizing the draft. This Act 

will ensure that the United States fulfills its trust responsibility to consult with 

Indian tribes when Federal actions impact Tribal lands or interests. I would be 

happy to answer any questions the Committee may have. 

Mr. GALLEGO. Thank you Ms. Ray-Hodge. The Chair now 

recognizes Mr. Matthew Fletcher for his testimony. 

STATEMENT OF MATTHEW FLETCHER, PROFESSOR OF LAW 

AND DIRECTOR OF THE INDIGENOUS LAW & POLICY 

CENTER, MICHIGAN STATE UNIVERSITY COLLEGE OF LAW, 

EAST LANSING, MICHIGAN 

Mr. FLETCHER. Thank you very much, Mr. Chairman, and 

Minority Leader. My name is Matthew Fletcher. I am a citizen of 

the Grand Traverse Band of Ottawa and Chippewa Indians, which 

is located in Michigan, and I am disappointed to see that Mr. 

Grijalva had to step out. I was about to engage in a little bit of 

hero worship. 

My very first trip to Washington, DC, as a lawyer was in the late 

1990s, right around 20 years ago, and we were here to engage in 

an act of tribal consultation, so to speak. Back in those days, the 

Department of Labor’s Wage and Hour Division had refused to 

treat my client, an Indian tribe in Arizona, as a state for purposes 

of minimum wage law. Our fire department and our police department, our fire department in particular, would be on-call for 48 

hours at a time and then they would get 2 days off, and then they 

would get another day on. So, the Wage and Hour Division was 

telling us that we owed them 25 hours of overtime every week, 

even though most of the firefighters, although they were looking for 

the windmill, I had to admit most of the time they spend in the 

fire station was lifting weights. 

I got a chance to meet Mr. Grijalva that day, or that year, and 

talk about this project. That was a bad experience in terms of 

tribal consultation, but I have had some good experiences as well 

as a lawyer and as an advocate. 

Under the Obama administration, in particular, we were pleased 

to see, especially when Mr. Washburn was Assistant Secretary, the 

government worked hard with Indian tribes, and they sort of were 

forced to by the Administrative Procedures Act and engaging in 
57 

some regulation and guidance releases in relation to the Indian 

Tribal Welfare Act, which is a statute near and dear to my heart. 

And to be frank, while there is a little bit of litigation going on 

in that case, the regulations that came out and the accompanying 

guidances, probably the best work that has come out of Indian 

Country in relationship with the Federal Government that I have 

seen in the last 20 years. Outstanding work. And I think that is 

because the tribes were on board, they participated, and the 

Federal Government took what they said seriously. 

But when it comes to bigger projects where there are other 

issues, other interests that are arrayed against tribes, or in opposition to tribes, I think what you see is the perception without a statute like the RESPECT Act, with the perception from Indian County 

is always going to be that the Federal Government’s practice is to 

consult when they want Indian tribes to help back them up with 

a project they are already going to go forward with, and then the 

tribe’s perspective is that the Federal Government will not consult, 

or will do a poor job of consulting, when the Federal Government 

expects opposition from the tribes. 

And I just want to harken back to the history of my own tribe, 

which is the Grand Traverse Band, and some of the tribes in 

Michigan. Way back in the day, in the 1830s, we came to 

Washington, DC to negotiate the Treaty of Washington, and our 

tribal leader back in those days was a guy named Aishquagonabe, 

and he negotiated along with the other Michigan Odawa and 

Ojibwe Tribes, a treaty that would guarantee us a homeland, that 

would guarantee us places to go on and off the reservation for 

purposes of hunting, gathering, fishing—obviously fishing—and 

Article XIII of that treaty says that we were allowed to enter offreservation lands until those lands were required for settlement. 

And, unfortunately, the first thing that the United States did 

with those ceded territories—they were never really settled—was 

to turn most of those to lease those lands over to timber interests. 

And most of the Lower Peninsula and all of the Upper Peninsula 

of the state of Michigan over the next several decades were deforested. Possibly the greatest source of virgin pine in the Great 

Lakes is all gone. Some of that is still at the bottom of Lake 

Michigan because of timber that ships that have sunk in Lake 

Michigan. 

But when we talk about catastrophic impacts as a result of actions taken by the Federal Government, I begin with my own 

tribe’s history and this de-forestation. That was our livelihood, 

those forests, and our access to those livelihoods until the land was 

required for settlement were destroyed. We were not able to really 

live in a homeland without access to those trees. 

And you can see that throughout Indian Country where there 

has been a history of a lack of consultation. You see the flooding 

of reservations at Three Affiliated, Fort Berthold, Seneca Nation 

and other flooding of reservations. You see dams and culverts that 

have destroyed salmon habitat in the Pacific Northwest. 

And I guess I want to conclude with, just to harken back, to paraphrase to a Supreme Court case that just came out, and Justice 

Gorsuch’s dicta mentioning that Indian tribes, when they negotiated treaties, did not just negotiate for the right to continue to 
58 

live, but to continue to live in their way. Miigwetch. Thank you 

very much. 

[The prepared statement Mr. Fletcher follows:] 

PREPARED STATEMENT OF MATTHEW L.M. FLETCHER, PROFESSOR OF LAW AND

DIRECTOR OF THE INDIGENOUS LAW AND POLICY CENTER AT MICHIGAN STATE

UNIVERSITY COLLEGE OF LAW ON THE RESPECT ACT

SUMMARY

Chairman Gallego and members of the Committee, it is a pleasure to testify today 

on the RESPECT Act, a bill to ensure effective consultation between the United 

States and Indian tribes in regards to Federal activities that affect tribal lands and 

interests. 

Today, I hope to provide an overview of the legal, political, and moral obligations 

of the United States to ensure meaningful consultation between the Federal 

Government and Indian tribes to ensure effective consultation between the United 

States and Indian tribes in regards to Federal activities that affect tribal lands and 

interests. I believe the RESPECT Act is a powerful step toward fulfilling that obligation. Federal-tribal relations work better as a partnership of sovereigns instead 

of an adversarial relationship where outcomes are governed by which sovereign has 

the superior bargaining position. The RESPECT Act is a step on that road to partnership, cooperation, and respect between sovereigns. 

In the current of Federal Indian law and policy, known as the self-determination 

era, Congress and the executive branch largely have embraced the trust relationship. In every significant Indian affairs statute of the last several decades, Congress 

has acknowledged the trust relationship. Unsurprisingly, many Indian tribes thrive 

under the self-determination policy, growing by leaps and bounds in their ability to 

govern. The old era of guardianship where the Federal Government made most 

major decisions for Indian tribes and Indian people is a relic of the past. Still, 

Federal agencies too frequently move forward with controversial projects—notably 

the Line 5 and Back 40 Mine projects in the western Great Lakes—without 

bothering to engage in tribal consultation at all. 

Overall, the draft bill is an excellent achievement. The present system is dominated by indeterminacy—no one knows exactly what constitutes consultation; no 

one knows definitely when to initiate consultation; no one knows exactly what the 

outcome of consultation is supposed to be; and no one knows how to enforce the consultation mandate, or whether it is enforceable at all. The indeterminacy contributes 

to the quick breakdown of communication, and a switch from cooperation to 

adversity. 

The discussion draft’s specific requirements obligating Federal agencies to helpfully document tribal consultation activities will be extremely useful. The breadth 

of the scope of the consultation requirement in the discussion draft will also be useful. As Congress is aware, many Federal projects are delayed by litigation after the 

breakdown of Federal consultation efforts. A clear process will contribute greatly to 

increased efficiency. 

In conclusion, the RESPECT Act is a major step forward in Federal-tribal 

relations. The Indian nations that entered into treaties with the United States—and 

that petitioned for and received Federal acknowledgment by statute or administrative act—always understood the duty of protection to be a partnership. Consultation 

is merely an acknowledgment of the respect due to both sovereigns, Federal and 

tribal. Every step the United States takes toward treating Indian tribes as partners 

is a positive step. 

Miigwetch. 

STATEMENT

Chairman Gallego and members of the Committee, it is a pleasure to testify today 

on the RESPECT Act, a bill to ensure effective consultation between the United 

States and Indian tribes in regards to Federal activities that affect tribal lands and 

interests. 

I am Professor of Law and Director of the Indigenous Law and Policy Center at 

Michigan State University College of Law, and visiting professor at Michigan and 

Stanford Law Schools later on in 2019. I am a citizen of the Grand Traverse Band 

of Ottawa and Chippewa Indians, located in the heart of Anishinaabeki, 

Peshawbestown, Leelanau County, Michigan. Although I do not speak in my official 

capacity, I should note that I am an appellate judge for nine Indian tribes—the 

Grand Traverse Band, the Mashpee Wampanoag Tribe, the Match-E-Be-Nash-She- 
59 

1See generally Matthew L.M. Fletcher, The Eagle Returns: The Legal History of the Grand 

Traverse Band of Ottawa and Chippewa Indians 2–33 (2011). 2Treaty of Washington, Article XIII, 7 Stat. 491 (1836). 

3Fletcher, The Eagle Returns, supra, at 146–47. 

4 Robert H. Keller, An Economic History of the Indian Treaties in the Great Lakes Region, 

4:2 Am. Indian J. 2, 10 (Feb. 1978). 5See generally Edward Benton-Benai, The Mishomis Book: The Voice of the Ojibwe (1979). 

Wish Band of Pottawatomi Indians, the Pokagon Band of Potawatomi Indians, the 

Hoopa Valley Tribe, the Nottawaseppi Huron Band of Potawatomi Indians, the 

Santee Sioux Tribe of Nebraska, and the Tulalip Tribes. 

My hornbook, Federal Indian Law (West Academic Publishing), was published in 

2016 and my concise hornbook, Principles of Federal Indian Law (West Academic 

Publishing), in 2017. I co-authored the sixth and seventh editions of Cases and 

Materials on Federal Indian Law (West Publishing 2011 and 2017), with David H. 

Getches, Charles F. Wilkinson, Robert A. Williams, Jr., and Kristen A. Carpenter. 

I also authored American Indian Tribal Law (Aspen 2011), the first casebook for law 

students on tribal law; The Return of the Eagle: The Legal History of the Grand 

Traverse Band of Ottawa and Chippewa Indians (Michigan State University Press 

2012); and American Indian Education: Counternarratives in Racism, Struggle, and 

the Law (Routledge 2008). I co-edited The Indian Civil Rights Act at Forty with 

Kristen A. Carpenter and Angela R. Riley (UCLA American Indian Studies Press 

2012), and Facing the Future: The Indian Child Welfare Act at 30 with Wenona T. 

Singel and Kathryn E. Fort (Michigan State University Press 2009). My latest book, 

On Indian-Hating, will be published by Fulcrum Publishing. My most recent law review articles are forthcoming in the California Law Review and the Michigan Law 

Review. I am the primary editor and author of the leading law blog on American 

Indian law and policy, Turtle Talk, http://turtletalk.wordpress.com/. I graduated 

from the University of Michigan Law School in 1997 and the University of Michigan 

in 1994. 

Today, I hope to provide an overview of the legal, political, and moral obligations 

of the United States to ensure meaningful consultation between the Federal Government and Indian tribes to ensure effective consultation between the United States 

and Indian tribes in regards to Federal activities that affect tribal lands and interests. I believe the RESPECT Act is a powerful step toward fulfilling that obligation. 

I also hope to provide a snapshot of the universe of cases in which tribes bring 

claims against the Federal Government alleging failure to meet consultation 

obligations. 

I. The Understanding of the Anishinaabeg Treaty Negotiators 

In 1836, the collected Michigan Odawa nations met in Washington DC to 

negotiate a treaty with Lewis Cass and Henry Schoolcraft.1 The Odawa ogemaag 

selected Aishquagonabe to speak for the Odawak treaty delegation that includes the 

federally recognized Indian tribes, Grand Traverse Band of Ottawa and Chippewa 

Indians, Little Traverse Bay Bands of Odawa Indians, and Little River Band of 

Ottawa Indians, plus the Grand River and Burt Lake Odawa bands still seeking 

Federal acknowledgment. [The Ojibwe nations of the eastern Upper Peninsula of 

what is now the state of Michigan selected their own speaker.] 

The Odawa nations that negotiated and executed the 1836 Treaty of Washington 

ceded approximately one-third of the land base of the Lower Peninsula of what is 

now the state of Michigan, represented in the land cession map drawn by Michigan 

State University professor Dylan Miner and attached to this document as Appendix 

1. The Odawa tribes negotiated for permanent reservations, a promise the United 

States failed to implement, and for usufructary rights to hunt, fish, and gather on 

the ceded lands until those lands ‘‘were required for settlement.’’ 2 As was established in the first decade of this century during the inland hunting, fishing, and 

gathering phase of United States v. Michigan,3 much of the ceded territory was 

never required for settlement. Much of the ceded territory is north of the effective 

growing season and was therefore not valuable for agricultural land. Instead, the 

Federal Government sold or leased almost all the land at pennies on the dollar of 

the effective market rate to private non-Indian timber interests. Private interests 

completely eradicated the virgin timber of the entire Upper and Lower Peninsula 

area.4 The economic value of that timber is incalculable. Importantly, the deforestation of the ceded territory dramatically undercut the ability of Michigan 

Anishinaabe to live their lives in accordance with Mino-Bimaadiziwin.5 The forests 

housed the wildlife the Anishinaabe depended upon for food. The forests provided 

the materials for the summer and winter shelter Anishinaabe people required. The 

forests provided the medicines Anishinaabe people required. In short, the forests 

were uniquely critical to the livelihoods of the Anishinaabek. The Michigan virgin 
60 

6 Cf. Washington State Dept. of Licensing v. Cougar Den, Inc., 2019 WL 1245535, at *11 (S.Ct., 

Mar. 19, 2019) (Gorsuch, J., concurring in judgment) (‘‘[T]he millions of acres the Tribe ceded 

were a prize the United States desperately wanted.’’). 7Matthew L.M. Fletcher, Federal Indian Law § 5.3, at 212 (2016). 

8Fletcher, Federal Indian Law, supra, § 5.3, at 212–15. 

9Fletcher, Federal Indian Law, supra, § 5.1, at 170–75. 

10Fletcher, Federal Indian Law, supra, § 5.2, at 175. 11Johnson v. McIntosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); 

Worcester v. Georgia, 31 U.S. 515 (1832). 12 Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831) (Marshall, C.J., lead opinion). 13 United States v. Kagama, 118 U.S. 375, 384 (1886). 14Fletcher, Federal Indian Law, supra, § 5.2, at 181–94. 15For a survey of statutes, see Fletcher, Federal Indian Law, § 5.2 at 188–94. 

forests are gone and will not return in our lifetimes, in our children’s lifetimes, in 

our grandchildren’s lifetimes. 

Imagine a world where the United States consulted with the Michigan Odawa 

nations before giving away the vast Michigan forests to private interests. Indian 

nations could have advised Federal officials what those forests meant to the 

Anishinaabek. Imagine how Indian nations could have advised Federal officials how 

to make the forests economically productive while still maintaining a sustainable 

forestry. But no. The forests are gone and they are not coming back. Most of the 

value of that timber left the state. All of the citizens of Michigan lost. 

Aishquagonabe and the rest of the Odawa ogemaag negotiated for permanent 

reservations and for the right to continue to use and maintain the forests. 

Ultimately, the United States did not fulfill the promise to guarantee permanent 

reservations, leaving the off-reservation rights as the only remaining valuable consideration for the Michigan Odawaak. Like other treaty negotiations, the American 

treaty negotiators received massively valuable consideration from the Michigan 

Odawa nations.6 In exchange for the cession of their aboriginal title, the Odawa 

nations received deforestation and the eradication of their lifeways. 

The takeaway from this history is that Federal-tribal relations work better as a 

partnership of sovereigns instead of an adversarial relationship where outcomes are 

governed by which sovereign has the superior bargaining position. The RESPECT 

Act is a step on that road to partnership, cooperation, and respect between 

sovereigns. 

II. The Duty to Consult 

Indian tribes and the Federal Government’s relationship began as a sovereign-tosovereign relationship grounded in treaty relations.7 There are hundreds of treaties 

between the United States and various Indian tribes. The creation of the treaty relationship between the United States and a given Indian tribe is a form of recognition of that tribe as a sovereign entity, sometimes referred to as a domestic 

sovereign.8 The United States, after all, does not enter into treaties with state governments, corporations, or churches, only foreign nations and Indian tribes. Indian 

tribes that do not have a formal treaty relationship with the United States, primarily those tribes located in California and Alaska, are acknowledged to enjoy the 

same relationship with the Federal Government so long as they are federally acknowledged as a tribal sovereign, either through an Act of Congress or through the 

Federal acknowledgment process.9

The treaty relationship imposed a ‘‘duty of protection’’ on the United States for 

the benefit of recognized Indian tribes.10 Colloquially, the duty of protection means 

that the United States as a ‘‘superior’’ sovereign agrees to protect domestic 

sovereigns, i.e., Indian tribes. The Supreme Court recognized the duty of protection 

in the Marshall Trilogy of cases.11 Unfortunately for Indian tribes, the Court analogized the duty of protection to a guardianship.12 One positive side-effect of that era 

was the Supreme Court’s recognition of the duty of protection as an independent 

source of congressional authority to legislate in Indian affairs.13 In the modern era, 

the duty of protection is more accurately described as the trust relationship.14

In the current of Federal Indian law and policy, known as the self-determination 

era, Congress and the executive branch largely have embraced the trust relationship. In every significant Indian affairs statute of the last several decades, Congress 

has acknowledged the trust relationship.15 Unsurprisingly, many Indian tribes 

thrive under the self-determination policy, growing by leaps and bounds in their 

ability to govern. The old era of guardianship where the Federal Government made 

most major decisions for Indian tribes and Indian people is a relic of the past. 

Or it should be. 

As this body well knows, the United States often must decide between many competing interests. Tribal interests in governance, lands, sacred sites, historical sites, 
61 

16Fletcher, Federal Indian Law, § 5.2, at 209–12. 17Menominee Indian Tribe of Wisconsin v. EPA, 2018 WL 6681397 (E.D. Wis., Dec. 19, 2018). 18 Colette Routel & Jeffrey Holth, Toward Genuine Consultation in the 21st Century, 46 U. 

Mich. J. L. Reform 417, 420–35 (2013). 19See generally Study of the Expert Mechanism on the Rights of Indigenous Peoples, Free, 

prior and informed consent: a human rights-based approach, A/HRC/39/62, at 5–8 (Aug. 10, 

2018); S. James Anaya & Sergio Puig, Mitigating State Sovereignty: The Duty to Consult with 

Indigenous Peoples, 67 U. Toronto L.J. 435 (2017). 20Dean B. Suagee, Consulting with Tribes for Off-Reservation Projects, 25:1 Nat. Resources 

& Env’t, 54, 55 (Summer 2010). 

economic markets, and jurisdiction often conflict with private, non-tribal interests, 

state interests, Federal interests, and even the interests of other tribes. When the 

United States must may difficult choices between these completing interests, it is 

all too easy for government officials to invoke the old guardian-ward model of 

Federal decision making involving tribal interests. To be fair to Federal officials, the 

Supreme Court has effectively given free reign to Federal agencies to ignore tribal 

interests and sweep away the trust relationship.16

In my own experience as in-house counsel for Indian tribes from 1998 to 2004, 

I saw both sides of meaningful tribal consultation. On one hand, I attempted to negotiate with the Department of Labor on the question of whether the Fair Labor 

Standards Act’s minimum wage requirements would apply to tribally run public 

safety departments, such as police and fire. At that time (the late 1990s), the 

Department’s view was that tribal governments were not governments entitled to 

an exemption under the law, an agency interpretation made without contacting affected tribes at all that could have cost individual tribes hundreds of thousands or 

even millions a year. Conversely, I worked with the Environmental Protection 

Agency on behalf of two other tribal clients (in the early 2000s) on the implementation of the Clean Water and Clean Air Act’s authorizations to treat Indian tribes 

as states for purposes of enforcement. The former situation cost my tribal client 

thousands of dollars in attorney fees before the government agreed to change its policy decision. 

Great Lakes tribes now are aligning to protect treaty rights in the western Great 

Lakes that are threatened with activities, namely, Enbridge Line 5 and the Back 

40 Mine. Bryan Newland, the Chairman of the Bay Mills Indian Community, 

described how the EPA gave tribes 10 days to comment to changes on a settlement 

agreement favoring the Line 5 owners, but were not given a copy of the proposed 

changes at all. Bryan Newland, Will the EPA allow the Line 5 Pipeline to remain 

in the Straits of Mackinac? Turtle Talk blog, May 31, 2018, https://turtletalk.blog/ 

2018/05/31/will-the-epa-allow-the-line-5-pipeline-to-remain-in-the-straits-ofmackinac/. 

In the context of the Back 40 Mine, a Federal judge relieved the EPA of its duty 

to consult under the National Historic Preservation Act because the state of 

Michigan assumed jurisdiction over the mine activities.17 In both instances, Federal 

consultation with Indian tribes was either nonexistent or minimal. In both the Line 

5 and Back 40 situations, public opinion strongly opposes the projects. The 

RESPECT Act is needed to change the government’s understanding of the partnership between Indian tribes and the United States when treaty rights are at stake. 

The Federal Government’s duty to consult is a critical element to the United 

States’ ongoing duty of protection, the basis for the general trust relationship.18 The 

duty of consultation is also a key element to the duty of free, prior, and informed 

consent codified in the United Nations Declaration on the Rights of Indigenous 

Peoples.19

III. Comments on the RESPECT Act Discussion Draft 

Overall, the draft bill is an excellent achievement. The present system is dominated by indeterminacy—no one knows exactly what constitutes consultation; no 

one knows definitely when to initiate consultation; no one knows exactly what the 

outcome of consultation is supposed to be; and no one knows how to enforce the consultation mandate, or whether it is enforceable at all. The indeterminacy contributes 

to the quick breakdown of communication, and a switch from cooperation to 

adversity. 

The discussion draft’s specific requirements obligating Federal agencies to helpfully document tribal consultation activities will be extremely useful. The breadth 

of the scope of the consultation requirement in the discussion draft will also be useful. As Congress is aware, many Federal projects are delayed by litigation after the 

breakdown of Federal consultation efforts. A clear process will contribute greatly to 

increased efficiency.20
62 

21 198 U.S. 371, 385 (1905). 22The Rincon Band of Luisen ̃ o Mission Indians’ tribal consultation ordinance (Rincon Tribal 

Code § 2.800 et seq.) appears to be a very good model, and is available here: https://narf.org/ 

nill/codes/rincon_luiseno/index.html. 

Treaty Rights 

The discussion draft appears to leave out reference to treaty rights. I recommend 

included explicit reference to treaty rights to ensure that treaty rights affected by 

Federal activities are included. Section 4(1) defines ‘‘activities’’ broadly, and properly 

so. Section 4(A) in particular is broad enough to include most, if not all, tribal interests arising from treaty rights. However, recent treaty rights litigation such as the 

culverts case in the Pacific Northwest, the pipeline cases in the northern Great 

Plains and in the Great Lakes area, and other treaty rights matters involve the critical treaty right to a homeland, originally recognized in the Supreme Court decision 

United States v. Winans.21 Federal approvals of projects far from reservation lands 

that have the potential to destroy off-reservation resources protected by treaty 

rights such as clean water and fish habitat should require tribal consultation. 

Explicit reference to treaty rights would be helpful to avoid conflict over the scope 

of the duty of consultation. 

State Government Activities 

Many tribes are frustrated with state governments that are implementing Federal 

programs affecting tribal interests. In some instances, the United States has delegated Federal powers to state government to effectuate a particular purpose, such 

as implementing the Clean Water Act. Absent the delegation to the state, the 

United States would remain obligated to engage in tribal consultation. The discussion draft could be clarified to ensure that states implementing or administering 

Federal programs respect the duty of tribal consultation. 

Section 105(b)—Payment for Tribal Documentation Work 

This section alone would constitute a great advance in Federal-tribal relations. 

Few tribes would choose to divert scarce tribal resources to a project in response 

to the requests of the Federal Government to explain the tribe’s interest and how 

that interest might be affected by a proposed Federal project. As the cases listed 

in Appendix II indicate, all too often Federal consultation efforts devolve into an adversarial situation. Federal money available to handle those requests for information is more likely to make a tribe respond to consultation inquiries. 

I might suggest expanding this section to include more activities. Quick research 

into tribal laws available at the National Indian Law Library’s website showed that 

there are relatively few tribal consultation statutes or formal offices for responding 

to consultation requests.22 It would be very helpful if there were funding available 

for tribes to develop their own tribal consultation laws and consultation offices. As 

the record shows, many tribes cannot efficiently respond to Federal consultation requests, and sometimes Federal inquiries go nowhere because there is no formalized 

tribal process. Federal self-determination appropriations could be increased to meet 

that need. 

Section 401—Judicial Review 

Tribal consultation only works if the government notifies and begins consulting 

with affected Indian tribes prior to the earliest stages of a project, a notion that 

undergirds Section 101 of the discussion draft. The survey of cases contained in 

Appendix II includes a few cases where an agency waited until a project was well 

underway, or where an agency went ahead with a project before receiving a response from a tribe, or where the agency made no effort whatsoever to engage in 

consultation. There are also cases where a tribe sued an agency successfully under 

another statute, such as the National Environmental Policy Act or the National 

Historic Preservation Act, while the tribe’s claims under the tribal consultation policy failed. In a situation where the agency, for whatever reason, does not consult 

with an Indian tribe but moves forward with a project anyway, judicial review is 

a critical tool for tribes. Section 401 is a great first step. 

Survey of Federal Court Litigation over Tribal Consultation 

The table that appears as Appendix II is a non-comprehensive list of Federal 

court cases brought by Indian tribes against Federal agencies or Federal officials alleging that the United States failed to adequately consult with those tribes. A significant number of these cases concluded with injunctions against Federal projects 

going forward, either because of the failure to adequately consult with tribes or for 

some other violation of Federal law raised by the tribal plaintiffs, such as the failure 
63 

to comply with NEPA. It is possible, perhaps even likely, that tribal consultation 

could have addressed the issues raised by the tribes. 

In conclusion, the RESPECT Act is a major step forward in Federal-tribal 

relations. The Indian nations that entered into treaties with the United States—and 

that petitioned for and received Federal acknowledgment by statute or administrative act—always understood the duty of protection to be a partnership. Consultation 

is merely an acknowledgment of the respect due to both sovereigns, Federal and 

tribal. Every step the United States takes toward treating Indian tribes as partners 

is a positive step. 

Miigwetch. 

***** 

ATTACHMENTS 

Appendix I 
64 

Appendix II 

Case Tribal Form of Likely Federal 

Interest Consultation; Compliance Court 

Outcome with Outcome 

Proposed 

RESPECT 

Act? 

Coyote Valley Sacred sites Notice+ Comment; No Agency allowed 

Band ofPomo [Coyote Valley + Approval of project to proceed 

Indians v. DOT, Round Valley over tribal 

2018 WL tribes] objections 

1569714 (N.D. 

Cal. 2018) 

Havasupai v. Sacred sites + None No Agency allowed 

Provencio, 906 Environmental to proceed [ cert 

F.3d 1155 (9th petition filed 

Cir. 2018) March 2019] 

Cachil Dehe Economic [gaming] Notice [tribe did not Possibly Agency allowed 

Band v. Zinke, respond] to proceed 

889 F.3d 584 (9th 

Cir. 2018) 

Hopi v. EPA, 851 Economic interest Notice+ Comment No Agency allowed 

F.3d 957 (9th Cir. (excluded in late to proceed 

2017) stages); Approval of 

project over tribal 

objections 

Standing Rock Sacred sites + (Late) Notice+ Likely no Agency allowed 

Sioux v. US Army Environmental Comment; Approval to proceed 

Corps, 205 interests of project over tribal 

F.Supp.3d 4 objections 

(D.S.D. 2016) + 

related 

proceedings 

(ongoing) 

Cheyenne River Bureau of Indian Notice+ Comment No [Tribe stated 

Sioux v. Jewell, Education (certain info claim of 

205 F.Supp.3d excluded from gov't inadequate 
65 

1052 (D. S.D. restructuring materials); Proposal consultation] 

2016) sent to Congress 

without tribal 

consent 

Colorado River Sacred sites Notice+ Comment+ Likely not Agency allowed 

Indian Tribes v. [partial] to proceed 

DOl, 2015 WL Remediation; 

12661945 (C.D. Approval of project 

Cal. 2015) over tribal 

objections 

Yakama v. USFS, Sacred site Notice+ Comment; No Agency enjoined 

2015 WL (Yakama and Approval of project (violation of 

1276811 (E .D. Umatilla tribes) over tribal NHPA) 

Wash, 2015) objections 

Quechan v. DOl, Historic sites Notice [tribe did not Possibly Agency allowed 

927 F.Supp.2d respond for 4 years] to proceed 

921 (S.D. Cal. 

2013), affd, 673 

Fed.Appx. 709 

(9th Cir. 2016) 

Summit Lake Sacred sites Notice+ Comment+ No Agency allowed 

Paiute v. ELM, Site Visits; Approval to proceed 

496 Fed.Appx. of project over tribal 

712 (9th. Cir objection 

2012) 

Quechuan v. Sacred site Notice+ Comment; No Agency enjoined 

DOl, 755 Approval of project (violation of 

F.Supp.2d 1104 over tribal NHPA) 

(S.D. Cal. 2010) objections 

Crow Creek Suspension by None Not clear Agency allowed 

Sioux v. HUDof to proceed 

Donovan, 2010 Contractors 

WL 1005170 

(D.S.D. 2010) 

Te-Moak Sacred site Notice (1 year late) No Agency enjoined 

Shoshone v. DOl, [NEPA 

608 F. 3d 592 (9th violation] 

Cir. 2009) 
66 

South Fork Sacred site Notice+ Comment+ Possibly Agency enjoined 

Shoshone v. DOl, Study+ [NEPA 

588 F.3d 718 (9th Cooperation; violation] 

Cir. (2009) Approval of project 

over tribal 

objections 

Yankton Sioux v. Closing of Indian Report issued to No Agency allowed 

HHS, 533 F.3d Health Service ER Congress including to proceed 

634 (8th Cir. presentation of 

2008) a tribe's views" 

Pit River Tribe v. Sacred sites None No Agency enjoined 

USFS, 469 F.3d 

768 (9th Cir. 

2006) 

Fallon Shoshone Sacred sites + Notice+ Comment No Agency enjoined 

Paiute v. ELM, Indian ancestral [terminated after (violation of 

455 F.Supp.2d remmns tribe retained NAGPRA) 

1207 (D. Nev. experts]; Approval of 

2006) project over tribal 

objection 

Yankton v. Indian education Notice+ Comment; No Agency enjoined 

Kempthorne, 442 restructuring Approval of project (violation of 

F.Supp.2d 774 over tribal BIA 

(D.S.D. 2006) objections consultation 

policy) 

Cheyenne Economic interest None No [federal gov't 

Arapaho v. US, (gaming) motion to 

2006 WL dismiss denied] 

8436383 (W.D. 

Okla. 2006) 

Eight Northern Bureau of Indian Notice [inadequate No Agency enjoined 

Indian Pueblos v. Education as to consequences 

Kemp thorne, restructuring of project] 

2006 WL 

8443876 (D.N.M. 

2006) 

Yankton Sioux v. Indian ancestral Notice+ No [tribe's motion 

US Army Corps, remmns Cooperation [partial, for injunction 

194 F.Supp.2d until gov't denied as 
67 

Mr. GALLEGO. I want to thank the expert witnesses for their 

testimony. We will now move on to questions. I will start by recognizing myself for 5 minutes. 

Ms. Vanessa Ray-Hodge, can you elaborate on how the 

RESPECT Act should be adjusted to protect all tribal treaty 

resources, sacred sites and trust lands? And why is this clarification important? 

Ms. RAY-HODGE. I think it is important to have express mention 

in the Act because often agencies don’t give serious consideration 

to their dual legal obligations, those obligations under their Federal 

statutes, but also to Indian tribes under treaties and Federal case 

law. So, I think oftentimes what happens is because it is not in the 

top of the minds of Federal agencies when they are resolving 

issues, tribal rights are often subjugated, or left out, of the balancing of what is the right decision to make, or if modifications 

need to be made in a Federal policy or a project to protect those 

rights. Because at the end of the day, it is only Congress that has 

the authority to diminish tribal treaty rights or rights that have 

been legally recognized by the Federal courts for tribes, and so 

agencies have to take that consideration into play, or else they 

could start trying to diminish rights that would be unlawful. 

Mr. GALLEGO. Thank you very much, Ms. Ray-Hodge. Mr. 

Washburn, this version of the RESPECT Act was expanded so it 

applies to independent Federal regulatory agencies. This was due 

to conversations with tribes that independent agencies were ignoring their duty to consult. What is your experience and your past 

dealings with some of these independent agencies when it comes to 

these matters? And should they be included in the RESPECT Act? 

Mr. WASHBURN. Thank you, Chairman. I would say absolutely, 

and that is something that only Congress can do, because President 

Clinton did an Executive Order on tribal consultation and Obama 

did a Presidential Memorandum to further that. But the executive 

branch can’t reach independent Federal regulatory agencies like 

you all, so we need Congress to act in the RESPECT Act for that 

purpose. And those independent agencies have a very checkered 

history of working with tribes. Some of them do OK sometimes, but 
68 

they don’t have that norm firmly established, and if you passed a 

law, they would have to follow that law. I think we would get better results. Indian tribes work a lot better when the Federal agencies communicate with them well, and Indian tribes and the 

Federal Government can work well together. We have seen that. 

But it takes careful consultation and good communication, and that 

is what the RESPECT Act does. Thank you. 

Mr. GALLEGO. Thank you, Mr. Washburn. Mr. Fletcher, thank 

you for your in-depth written testimony, especially your analysis of 

how drastically different things might be today for Indian Country 

and America had tribal consultation been applied from the beginning. Where do you feel the duty for tribal consultation stems 

from? 

Mr. FLETCHER. Well, I think it is actually a constitutional duty, 

and it is certainly rooted in the treaties. You may recall that there 

are as many as 400 treaties between Indian tribes and the United 

States, and those treaties really are the creation of a relationship 

between governments that is a partnership. 

As Rob Williams wrote in his book Linking Arms Together on the 

history of the Haudenosaunee Treaties, some of the tribes treated 

those as familial relationships. And we know the Supreme Court 

in the Marshall Trilogy, which is the first series of important cases 

on Indian law from the 1820s and 1830s referred to this relationship where the United States had undertaken a duty of protection 

to Indian tribes. Most of those treaties reference Indian tribes coming under the protection of the United States. To this day, that 

duty of protection really is usually described as the general trust 

relationship. And if we treat these management of resources, management of government and jurisdictions as a partnership, then 

every single time the United States does take an action or propose 

an action that affects tribes, there should be some consultation 

with that tribal partner. 

Mr. GALLEGO. Mr. Fletcher, to follow up, the Constitution is inherently a government-to-government function, but there are times 

when the Federal Government delegates their powers to a state 

government for a particular purpose, such as implementing a Clean 

Water Act, then the obligation to consult gets murky. What should 

the requirement to consult be in these cases? 

Mr. FLETCHER. Well, I think if nothing else, Congress could certainly require the states when they do agree to implement Federal 

programs through a delegation from Congress, that states need to 

be reminded that they are stepping in the shoes of the Federal 

Government and they have entered into obligations under this 

trust responsibility. 

I look at some of the programs or some of the activities undergoing in the Great Lakes right now, like the Back 40 Mine, which 

is depending on Michigan approvals. We have also had the Line 5 

in the Straits of Mackinac, which is a huge pipeline. That literally 

could be an existential threat to the Great Lakes. And much of that 

is dependent on state action. 

Mr. GALLEGO. Thank you, Mr. Fletcher. I now recognize the 

Ranking Member, Representative Cook. 

Mr. COOK. Thank you, Mr. Chairman. Listening to the testimony 

and everything else, I am optimistic about this, but maybe it is my 
69 

cynicism because of my old age and insults from Don Young—no. 

This is something that is very, very difficult. I worked for the 

Federal Government and the Marine Corps 26 years and it seemed 

as though every year there was a new program that we were going 

to change the Marine Corps, this and that. And one of the hardest 

things is to get it right in any of these programs. And it is going 

to be tough because I think we have to change the behavior of the 

Federal Government, and particularly their attitude with Native 

Americans, Indigenous People, because—I am not a member of a 

tribe, but I would have a chip on my shoulder. 

I mean, if you look at all the history over the years, I would be 

very, very careful of anybody from Washington. Don’t trust them. 

But if you can have a level playing field, and I think you have to 

establish if this isn’t enacted, then I think we have to go even further, so that you have the ground rules, what you want to accomplish, so it is not a Washington tells the tribes what is going on, 

or I think there is going to be resentment of failure. 

And I wanted to get Professor Washburn’s, as a member of the 

previous administration, am I being too cynical? Because I think it 

is a great idea, good intentions, everything like that, but when you 

put it in action, it is going to be very, very difficult. Do you have 

any words of wisdom on where we can go a little further on this? 

Mr. WASHBURN. I think tribes and the Federal Government work 

better, they have improved over time and they can work well together now, so I think maybe you are a little cynical. I think that 

we can be optimistic. Tribes have become so much more sophisticated and so much more capable of self-government and exercising 

sovereignty so much better and so much better resourced, and they 

have become almost equal partners to the Federal Government. 

There are still some paternalistic aspects to it, but tribes do a great 

job and I think that largely the improvement is due to tribes, not 

due to the Federal Government. 

Mr. COOK. Oh, I agree with you 100 percent. Maybe you trust the 

Federal Government more than I do, but I guess I shouldn’t say 

that. I know we are, but I don’t trust myself and I think when— 

wait a minute, I got two—thanks, Don. 

All I am saying is—and I taught American History, a professor 

and all that, maybe that is the problem, I taught too much American History and a lot of it was terrible, and I am not going to go 

through everything that has happened to so many tribes, so all I 

am doing is, I will have an open mind on this and I appreciate 

what the Chairman is doing, and just starting off with the name 

of the Act, the RESPECT Act, and this is something that doesn’t 

happen for years because if there was that respect then I think we 

could expect better conditions and everything else. 

I am not going to go on and on, and I think we can do a lot with 

this, but the one thing I want is not driven so much by us, but you 

have that input from the tribes, a lot of different areas and this 

and that, and that is going to be tough to find a common denominator. But let’s do it. I yield back. 

Mr. GALLEGO. Thank you, Ranking Member Cook. I now 

recognize Delegate San Nicolas for questions. 

Mr. SAN NICOLAS. Thank you, Mr. Chair. I appreciate everybody 

being here today to discuss this legislation. I am the Delegate from 
70 

Guam, so I am the Representative of a U.S. Territory and my heritage is Chamorro, Indigenous People of Guam. We have a lot of 

close ties to our land as well, and a lot of the same challenges that 

our Indigenous brothers and sisters have in the tribes. 

One of our most unique experiences so far has been dealing with 

a military realignment into Guam from Okinawa, moving thousands of Marines into the island. And one of the biggest challenges 

has been trying to walk that middle ground with the Federal 

Government in terms of the environmental impact on the territory. 

One of the real advantages that we have had as a result of the 

process, the way the military needs to go about doing their process, 

is they were required to complete an environmental impact study 

before they can even move forward. 

One of the things that I appreciate about this legislation is it creates a mandate for agencies to consult with the tribes, but I think 

that we need to maybe look further into creating a basis for consultation. For example, I think the tribes should probably be able 

to request, in advance, prior to even beginning consultation, that 

an environmental impact study be done with respect to whatever 

activity the Federal Government is looking to undertake. 

And one of the reasons why I would probably recommend that is 

because if you require an environmental impact study upfront before the consultations, then you will have a basis for being able to 

go in and actually consult. Otherwise you might be sitting down at 

a table and you are only discussing what they share with you, you 

might not have all the facts in front of you. And if there is no EIS, 

no environmental impact study, then you might not know 

necessarily what to consult about. 

And one of the most powerful things about the EIS that has been 

effective so far, is whenever there were any violations of it, we 

could take the military to court and get the project stopped or get 

injunctions on whatever activities are taking, because their EIS, 

which was mandated to be presented before they were able to move 

forward, their EIS did not include a certain component. 

So, this might actually put more empowerment into the tribes if 

before there is even consultation, an official Federal environmental 

impact study needs to be presented with respect to whatever activity, if the tribe so requests one to be provided in advance of consultation. Because I think a lot of the concerns at the tribal level 

will be similar to the concerns of the Chamorro people with respect 

to environment, with respect to how you are impacting our way of 

life or how you are impacting our quality of life. And all of that had 

to be put into the environmental impact study that the military 

had to put together before they began moving forward with the 

military realignment. 

How does the panel feel about perhaps including some kind of 

component like that so that when you walk into these consultations 

that the mandate does require you actually know what you are 

going to be consulting rather than sitting there and wondering if 

they are sharing all of the information or not or if you are walking 

away from the table being fully informed and also having fully participated based on all the facts? If I could get feedback from the 

panel, please. 
71 

Mr. WASHBURN. Delegate, there is a lot of sense in what you say 

because tribes do need to have a lot of information to be able to 

consult effectively. I would probably stop short of requiring an environmental analysis or EIS before consultation can even start. I 

would come at it a little differently just to say the Federal Government should consult early and often and they should continue the 

consultation as more information becomes available, because I 

wouldn’t want to put up an artificial barrier to keep the Federal 

Government from consulting with a tribe about something that it 

is going to be doing. 

I used to joke that tribes would get mad at me when I was in 

the government if I came up with an idea in the shower and I 

didn’t consult before I toweled off. The tribes want to be engaged 

that much, so if the proposal that you suggest, the only worry I 

have about it is that it would keep the Federal Government from 

going ahead and consulting while they are waiting for the EIS to 

be completed. Thank you. 

Ms. RAY-HODGE. Thank you, Congressman. I actually sort of 

agree with Mr. Washburn because I do think that tribes want to 

be consulted as early as possible when they know something is 

happening. I do think if it is something like an agency policy, you 

wouldn’t necessarily do an EIS, but there are lots of projects that 

happen on Federal lands where an EIS is required, and what tribes 

are asking for in the Lower 48 and in Alaska is to be cooperating 

agencies from the start of that EIS document being started to the 

end of it so that they have the opportunity for true consultation to 

get their concerns in. 

Mr. GALLEGO. Thank you, Delegate San Nicolas. Are there any 

further questions from the panel? Great. 

I thank the witnesses for their valuable testimony, and the 

Members for their questions and time. Members of the 

Subcommittee may have some additional questions for the witnesses and we will ask you to respond to those in writing. The 

hearing record will be held open for 10 days for these responses. 

If there is no further business before the Subcommittee, the 

Chairman again thanks the members of the Subcommittee and our 

witnesses. The Subcommittee stands adjourned. 

[Whereupon, at 4:17 p.m., the Subcommittee was adjourned.] 
72 

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

LETTERS OF SUPPORT FOR THE RECORD 

MASHPEE CHAMBER OF COMMERCE 

March 25, 2019 

Hon. RAUL GRIJALVA, 

Hon. ROB BISHOP, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: The Mashpee Chamber of Commerce Continues support of the passage of the 

Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Grijalva, Ranking Member Bishop, Chairman Hoeven, and Vice 

Chairman Udall: 

We at the Mashpee Chamber of Commerce have read recent news reports concerning the movement of H.R. 312 and the effort to fast track this bill through the 

House. We applaud Congress for taking such affirmative steps to pass the Mashpee 

Wampanoag Reservation Reaffirmation Act and protect the Tribe’s reservation 

lands. Enclosed please find the support letter we submitted to Congress last year 

in connection with H.R. 5244 (now, H.R. 312), that voices our strong support for this 

effort. 

We urge you to continue to move this bill and vote in favor of H.R. 312. 

Sincerely, 

PATRICE PIMENTAL, 

President, Board of Directors. 
73 

OFFICE OF THE TOWN OF MASHPEE

MASHPEE, MASSACHUSETTS

April 11, 2019 

Hon. RUBEN GALLEGO, Chairman, 

Hon. PAUL COOK, Ranking Member, 

House Committee on Natural Resources, 

Subcommittee on Indigenous Peoples of the United States, 

1324 Longworth House Office Building, 

Washington, DC 20515. 

Re: Subcommittee Hearing on H.R. 312, the Mashpee Wampanoag Reservation 

Reaffirmation Act, held on April 3, 2019 

Dear Chairman Gallego, Ranking Member Cook, and Members of the 

Subcommittee: 

On behalf of the Town of Mashpee, Massachusetts, I write to thank you for 

holding the hearing last week on H.R. 312, the ‘‘Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act,’’ and respectfully submit these comments in support 

of this vitally important bill. The Town has been advocating for Congress to enact 

this measure since the predecessor version of the bill was first introduced in the 

115th Congress as H.R. 5244, and we fully intend to continue doing so this Congress 

as well. 

The Town of Mashpee and the Mashpee Wampanoag Tribe are old neighbors that 

have enjoyed an ongoing, positive, and productive working relationship over the 

course of many years—a relationship that both the Tribe and the Town value very 

much. The success of our longstanding relationship is evidenced in part by the 2008 

Intergovernmental Agreement between the Tribe and the Town, which is referenced 

in the text of H.R. 312. The important jurisdictional and other balances that the 

Tribe and the town negotiated in 2008 are expressly recognized and preserved by 

the bill. 

Aside from the Intergovernmental Agreement, as we stated in our comments to 

the Subcommittee on Indian, Insular, and Alaska Native Affairs last Congress, we 

also wish to emphasize that this legislation will help ensure that the Tribe’s 

economic development plans for the part of its reservation that lies within the nearby community of Taunton will be preserved and serve to stimulate job creation in 

an area that is best suited for it. For this reason as well, the Town strongly 

supports this legislation. 

Above all, the Town of Mashpee believes enactment of H.R. 312 is simply the 

right thing to do. This Act ensures that the Tribe has a federally-protected homeland in its historic territory and that it enjoys the same rights under Federal Indian 

law as other federally-recognized Indian tribes. 

The Town appreciates the Committee’s consideration of our views and again urge 

you to vote in favor of the bill as soon as possible. 

Sincerely, 

RODNEY C. COLLINS, 

Town Manager. 
74 

TOWN OF MASHPEE,

OFFICE OF SELECTMEN, 

MASHPEE, MASSACHUSETTS

May 22, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: The Town of Mashpee Urges Passage of the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act (S. 2628 and H.R. 5244) 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of the Town of Mashpee, Massachusetts, I write to express our Town’s 

unequivocal support for swift passage of the Mashpee Wampanoag Reservation 

Reaffirmation Act, and toward that end we ask that you schedule hearings in your 

respective Committees of jurisdiction as quickly as possible. The establishment of 

the Mashpee Wampanoag reservation in 2015 was very long overdue, and we feel 

strongly that this legislation is needed to protect that reservation. 

The Town and the Tribe are old neighbors and have long had a positive working 

relationship with one another, and that relationship has in some ways been memorialized in various agreements and memoranda of understanding over the years. 

One of the reasons the Town supports the Mashpee Reservation Reaffirmation Act 

is that we believe it will also help to protect our relationship. Indeed, the Town and 

the Tribe have worked cooperatively together to craft a minor proposed amendment 

to the legislation which would further strengthen our agreement with each other, 

and a copy of that proposed amendment is attached. We join with the Tribe in 

asking that the Committees adopt this amendment during the legislative process. 

The Town of Mashpee thanks you for the good work you do, and for your interest 

in helping both the Mashpee Wampanoag Tribe and the Town of Mashpee move productively into the future. If you have any questions, please do not hesitate to contact 

me directly, or have your staff contact the Town’s attorney, Patrick Costello, at 

telephone number (XXX) XXX–XXXX with any questions. 

Sincerely, 

CAROL A. SHERMAN, 

Chairman. 

***** 

ATTACHMENT 

(S. 2628; H.R. 5244) Mashpee Wampanoag Tribe Reservation Reaffirmation 

Act, as amended 

To reaffirm the Mashpee Wampanoag Tribe reservation, and for other purposes. 

Be it enacted by the Senate and House of Representatives of the United States of 

America in Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act.’’ 

SEC. 2. REAFFIRMATION OF INDIAN TRUST LAND. 

(a) In General.—The taking of land into trust by the United States for the benefit of the Mashpee Wampanoag Tribe of Massachusetts as described in the final 

Notice of Reservation Proclamation published at 81 Federal Register 948 (January 

8, 2016) is reaffirmed as trust land, and the actions of the Secretary of the Interior 

in taking that land into trust are ratified and confirmed. 
75 

(b) Application.—Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) 

relating to the land described in subsection (a) shall not be filed or maintained in 

a Federal court and shall be promptly dismissed. 

(c) Applicability of Laws.—All laws (including regulations) of the United States 

of general applicability to Indians or nations, Indian tribes, or bands of Indians 

(including the Act of June 18, 1934 (25 U.S.C. 5101 et seq.)), shall be applicable to 

the Mashpee Wampanoag Tribe of Massachusetts and tribal members, provided, 

however, that to the extent such laws and regulations are inconsistent with the 

terms of the Intergovernmental Agreement, dated April 22, 2008, by and between 

the Mashpee Wampanoag Tribe and the Town of Mashpee, Massachusetts, the 

terms of said Intergovernmental Agreement shall control. 

CITY OF TAUNTON,

OFFICE OF THE MAYOR, 

TAUNTON, MA 

June 8, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. DOUG LAMALFA, 

Hon. RUBEN GALLEGO, 

House Subcommittee on Indian and Alaska Native Affairs, 

Washington, DC 20515. 

Re: The City of Taunton Urges Passage of H.R. 5244, The Mashpee Wampanoag 

Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa, and 

Ranking Member Gallego: 

In my capacity as Mayor of the City of Taunton, I write to urge Congress to act 

quickly to protect the Mashpee Wampanoag Tribe’s reservation lands. 

This Tribe—the one that welcomed the Pilgrims in 1620—deserves to have its 

trust lands, located within its aboriginal territory, secured through this legislation. 

The City of Taunton sees it as a moral imperative to ensure that the Tribe is not 

forced back into landless. 

But it is also a moral and economic imperative for the City of Taunton. The City 

of Taunton has already overwhelmingly approved through a city-wide local referendum the Tribe’s planned economic development. Our partnership with the Tribe 

will create thousands of good-paying jobs—jobs our community desperately needs. 

And we are confident that the economic multiplier effect will lead to the further 

growth of more businesses and ventures, and more revenue to the City. 

We are grateful for the strong bipartisan support the Mashpee Reservation 

Reaffirmation Act has received. We know that your leadership is key to ensuring 

passage of this important legislation. 

I respectfully urge you to support this legislation and move the legislation out of 

your Committee as quickly as possible. 

Sincerely, 

THOMAS C. HOYE JR., 

Mayor. 
76 

TESTIMONY OF THE HON. THOMAS C. HOYE, JR., MAYOR, CITY OF 

TAUNTON, MASSACHUSETTS 

URGING PASSAGE OF THE MASHPEE RESERVATION REAFFIRMATION ACT 

(S. 5244) 

HEARING BEFORE THE INDIAN, INSULAR & ALASKA NATIVE AFFAIRS SUBCOMMITTEE, HOUSE NATURAL RESOURCES COMMITTEE

JULY 24, 2018 

My name is Thomas C. Hoye, Jr. I am mayor of the City of Taunton, 

Massachusetts. On behalf of our City, I respectfully request that this written testimony be included in the record. The health and well-being of the City of Taunton 

and the Mashpee Wampanoag Indian Tribe are closely intertwined, and for this reason the City urges the Committee to vote favorably on the legislation as soon as 

possible and to do everything within its power to ensure it becomes law in this Congress. 

Background 

The City of Taunton has a population of nearly 57,000 people and is located in 

southeastern Massachusetts. Founded in 1637 by members of the Plymouth Colony, 

the City is located squarely within Wampanoag traditional historical territory. 

Our City has a long history of successful economic development. The Taunton 

Ironworks was established in 1656 and operated for more than two hundred years. 

In the 19th century, we also became home to famous silversmithing companies, include some still known today, like Reed & Barton. Other famous manufacturers operating in Taunton beginning in the 19th century included the Weir Stove Company, 

the Field Tack Company, Mason Machine Works, Taunton Locomotive Works, and 

Whittenton Mills. Our location on the Taunton River made our City a major shipping point before the railroads were built, and afterwards Taunton became an important railroad hub for the transportation of agricultural goods and industrial 

products. 

Unfortunately, in more recent years, our manufacturing industries have suffered 

and diminished, and our City and our region has not been able to benefit from the 

same economic improvement as we see in other parts of the Commonwealth of 

Massachusetts and other parts of the United States. The impact on our City and 

its infrastructure is palpable. 

Close Working Relationship With the Mashpee Wampanoag Tribe 

The City and the Tribe have a close working relationship. The City and the Tribe 

have entered into an agreement under which, among other things, the Tribe will 

pay the City a share of net revenues generated from slot machines, the Tribe will 

make PILOT payments to the City, and the Tribe will pay for all up-front infrastructure costs. The agreement contemplates over fifteen million dollars in one-time 

mitigation improvements and over four million dollars in annual recurring mitigation payments to the City, as well as a minimum of eight million dollars per year 

of slot machine revenue. (Please See Exhibit A: Intergovernmental Agreement By 

and Between the Mashpee Wampanoag Tribe and the City of Taunton, dated May 

17, 2012, and, Amendment to Intergovernmental Agreement, dated March 13, 2013) 

Economic Importance to the Entire Southeastern Massachusetts Region 

The litigation that has raised technical legal objections to the creation of the 

Tribe’s reservation threatens thousands of much needed jobs, jeopardizes critical 

traffic infrastructure that would benefit the entire region, and prevents the 

Commonwealth from collecting hundreds of millions of dollars in revenue that could 

be going to education and economic development that would benefit all of us. This 

project will stimulate strong economic growth for the City of Taunton and the region 

and provide many needed jobs at a time when projects of this magnitude are few 

and far between. The Casino will supplement Taunton’s budget with an anticipated 

over $13 million dollars a year that would enable us to hire badly needed police officers, firefighters, teachers, and, to fund well overdue public infrastructure projects. 

We Urge Congress to Enact the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act 

The Tribe’s economic development plan has the overwhelming support of the City 

of Taunton, as demonstrated by the public referendum vote with 63 percent of those 

casting ballots voting in favor of the proposed Casino. (Please see Exhibit B: City 
77 

of Taunton 6/9/2012 Special Election Official Results) The City’s residents know that 

a tribal gaming facility located on the portion of the Tribe’s reservation that abuts 

our City will create thousands of good paying jobs, upwards of $75 million in local 

and state tax revenue, and another $15 million in desperately needed infrastructure 

improvements. And the economic multiplier effects for area businesses would be 

tremendous. 

Our schools, police and fire departments also need a boost in revenue. Cities 

across the state will benefit from the development that the Tribe has sought to do. 

We need Congress’ help to protect the Tribe, protect the people of Taunton, and to 

protect southeastern Massachusetts from the negative consequences of seemingly 

endless litigation about otherwise meaningless technical legal issues. 

In sum, not only is passing the Reservation Reaffirmation Act the right thing to 

do for the City economically, it is also the right thing to do considering the Tribe’s 

long-standing ties to Taunton and the surrounding area going back thousands of 

years, and the fact that it was the Wampanoag people that made the settlement of 

our state possible because of their hospitality. 

For these reasons, we urge Congress to enact this legislation as quickly as 

possible. 

TAUNTON AREA CHAMBER OF COMMERCE, 

TAUNTON, MASSACHUSETTS

Hon. RUBEN GALLEGO, CHAIRMAN, 

Hon. PAUL COOK, RANKING MEMBER, 

House Subcommittee on Indigenous Peoples of the United States, 

Washington, DC 20515. 

Re: The Taunton Area Chamber of Commerce Urges Swift Passage of the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Gallego and Ranking Member Cook: 

On behalf of the Taunton Area Chamber of Commerce, I am writing to respectfully urge the House Natural Resources Committee and its Subcommittee on Indian, 

Insular and Alaska Native Affairs, to work to enact the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act (H.R. 5244 and S. 2628). We commend the 

Committee for scheduling a hearing to hear testimony on this important legislation 

and we respectfully request to submit testimony for the hearing record. 

As we expressed in our June 7, 2018 letter to this Committee, the establishment 

of the Mashpee Wampanoag Tribe’s reservation has brought the promise of significant economic development that will not only benefit the Mashpee Wampanoag 

Tribe but the entire Taunton Community. H.R. 5244 will ensure that the Tribe’s 

reservation is protected and secure economic growth in the southeast region for 

years to come. 

The construction and operation of the Tribe’s planned casino and resort will create 

nearly 7,000 jobs. Additionally, the operation of the casino and resort will revitalize 

existing businesses in the surrounding areas and incentivize the creation of new 

ventures that will provide even more jobs for residents. The operation of the casino 

and resort will also bring more than just jobs to our community. The Tribe has committed to $30 million in upgrades to the Taunton water system and roadways and 

$10 million per year to local first responders and Taunton city services. 

Passage of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act is critically important to the economic future of Taunton, and we urge this Committee to 

act swiftly to support the enactment of this legislation. 

Sincerely, 

KERRIE BABIN
78 

TESTIMONY IN OPPOSITION FOR THE RECORD 

TESTIMONY OF THE HON. DAVID N. CICILLINE AND 

THE HON. JAMES R. LANGEVIN 

REPRESENTATIVES IN CONGRESS FROM THE STATE OF RHODE ISLAND 

Good afternoon Chairman Gallego, Ranking Member Cook, and members of the 

House Committee on Natural Resources’ Indigenous Peoples Subcommittee. Thank 

you for allowing us to submit our testimony today to express our strong opposition 

to H.R. 312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. H.R. 

312 would allow the Mashpee Wampanoag Tribe to open a casino in Taunton, 

Massachusetts. The bill would not only overturn a 2018 decision by the U.S. Department of Interior and reverse a 2016 ruling by the U.S. District Court in 

Massachusetts, but it would also deliver a devastating blow to Rhode Island’s 

economy. 

The Mashpee Wampanoag Tribe was federally recognized in 2007 after the Tribe 

hired former lobbyist and convicted felon Jack Abramoff. Prior to that time, the 

Tribe’s application for Federal recognition had not been acted upon since it was 

originally filed in the 1970s. In 2009, the U.S. Supreme Court ruled in Carcieri v. 

Salazar that the Federal Government could only take land into trust for tribes that 

were recognized when the Indian Reorganization Act passed in 1934. In 2015, the 

U.S. Department of Interior defied the 2009 Supreme Court ruling and unjustly took 

land into trust for the Mashpee Tribe using a novel and flawed methodology. A year 

later, residents of Taunton, Massachusetts sued in U.S. District Court and won to 

stop the U.S. Department of the Interior from taking land into trust for the Tribe. 

In 2018, the U.S. Department of the Interior reviewed the Mashpee application pursuant to the correct legal methodology and summarily rejected the Tribe’s application in a thorough and well-reasoned decision. The Mashpee Tribe, backed by a 

Malaysian Gaming Company, is now looking to Congress to reverse major Federal 

court decisions and the recent ruling by the U.S. Department of the Interior. 

If H.R. 312 were to become law, it would have a devastating impact on Rhode 

Island’s economy. The Twin River and Tiverton casinos generate over $300 million 

in revenue, representing the third largest source of revenue for Rhode Island. The 

revenue from the casino industry in Rhode Island helps fund education and infrastructure programs. Our state would suffer tremendously if Congress passed H.R. 

312 by allowing the Mashpee Wampanoag Tribe to build a casino on our border. 

While we are primarily concerned about the impact this bill will have on our 

state, we are also concerned about the precedent it will set. If Congress grants the 

Mashpee Tribe this exception, it would encourage other tribes to seek individual relief from Congress. Instead of Congress picking winners and losers, we believe that 

Congress should look at updating the Indian Reorganization Act of 1934 to make 

the land to trust process more transparent and fair. 

Last, we are concerned by the haste in which this bill was nearly brought to the 

Floor last week under suspension without a hearing or a markup. We thank 

Chairman Gallego and Ranking Member Cook for taking the time to have a hearing 

on this controversial bill today. A bill that overturns decisions by the U.S. Department of the Interior, U.S. Supreme Court, and U.S. District Court should go through 

the entire Committee process before being brought to the House Floor for vote under 

regular order. 

Thank you again for the opportunity to express our opposition to H.R. 312, the 

Mashpee Wampanoag Tribe Reservation Reaffirmation Act. 
79 

Submissions for the Record by Rep. Keating 

LETTERS OF SUPPORT 

AKIAK NATIVE COMMUNITY, 

AKIAK, ALASKA

June 5, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Please Support the H.R. 5244/S. 2628, Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of my Tribe, the Akiak Native Community, I write today to ask that 

you support H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act, which are now pending in the House Natural Resources 

Committee—Subcommittee on Indian, Insular, and Alaska Native Affairs, and in 

the Senate Indian Affairs Committee. This bipartisan bill is broadly supported in 

Indian country and is urgently needed in order to ensure that the Mashpee Reservation, located within the Mashpee Tribe’s traditional homelands, is not disestablished 

due to a technicality. 

The Mashpee Reservation was established in accordance with the Indian 

Reorganization Act and with the strong support of the local community. However, 

this reservation is now being threatened by litigation that could soon return the 

Tribe to landlessness—something that the IRA was enacted to prevent. As you 

know, tribal land allows tribes to protect their cultures, provide public services to 

their members, and engage in economic development. By reaffirming the status of 

the Mashpee Reservation, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act will ensure that these essential components of self-determination are 

preserved. 

We respectfully request that Congress fulfill its trust responsibility to the 

Mashpee Tribe by enacting the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. Thank you for considering this request and for the work you do for Indian 

country. 

Respectfully submitted, 

Ivan M. Ivan, Chief Michael Williams, Sr., Tribal Council 

Moses Owen, Tribal Council Sam Jackson II, Tribal Council 
80 

APACHE ALLIANCE, 

SCOTTSDALE, AZ 

May 16, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf the member tribes of the Apache Alliance, we are writing to express 

our support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 

5244 and S. 2628). As a federally recognized Indian Tribe, the Mashpee Wampanoag 

Tribe should be entitled to the same benefits under the Indian Reorganization Act 

as are other federally recognized tribes. Yet because of a legal technicality, the 

Mashpee Wampanoag Tribe’s federal reservation is under attack in the federal 

courts and could be disestablished by later this year—something the federal government has not allowed to happen since the Termination Era. 

Congress’s plenary authority over Indian issues is the only thing standing between the Mashpee Tribe’s reservation and the Tribe’s return to landlessness. We 

urge the Senate Indian Affairs Committee, and the House Natural Resources 

Committee and its Subcommittee on Indian and Alaska Native Affairs, to hold hearings on these bills and vote them out of Committee as quickly as possible. You have 

the power to prevent this Tribe from suffering yet another historical wrong. 

Sincerely, 

JEFF HAOZOUS, 

President. 
81 

AFFILIATED TRIBES OF NORTHWEST INDIANS, 

PORTLAND, OR 

June 6, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of our organization, the Affiliated Tribes of Northwest Indians (ATNI) 

representing over fifty tribes in the northwest, we respectfully urge that the Senate 

Indian Affairs Committee, and the House Natural Resources Committee and its 

Subcommittee on Indian and Alaska Native Affairs, do everything possible to ensure 

swift enactment of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

(H.R. 5244 and S. 2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe’s reservation—which was established with the 

strong support of surrounding local governments—is threatened by litigation 

brought by a NIMBY group based on technical legal issues. We urge Congress to 

use its plenary authority to ensure that the Mashpee Tribe is not forever rendered 

perpetually landless by enacting the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act. 

Respectfully, 

LEONARD FORSMAN, 

President. 
82 

BIG VALLEY BAND OF POMO INDIANS, 

LAKEPORT, CA 

May 10, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of my Tribe, we respectfully urge that the Senate Indian Affairs 

Committee, and the House Natural Resources Committee and its Subcommittee on 

Indian and Alaska Native Affairs, do everything possible to ensure swift enactment 

of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 

2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe’s reservation—which was established with the 

strong support of surrounding local governments—is threatened by litigation 

brought by a NIMBY group based on technical legal issues. We urge Congress to 

use its plenary authority to ensure that the Mashpee Tribe is not forever rendered 

perpetually landless by enacting the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act. 

Sincerely, 

ANTHONY JACK, 

Tribal Chairman. 
83 

CHEYENNE RIVER SIOUX TRIBE, 

EAGLE BUTTE, SOUTH DAKOTA

June 4, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

I am writing on behalf of my Tribe to respectfully request that you take all 

necessary action to ensure that the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as soon as possible. This is an urgent 

matter, as the Mashpee Tribe’s reservation is in danger of being taken out of trust, 

despite strong local government support for its creation. 

This threat to the Mashpee Tribe’s federally protected lands, established under 

the authority of the Indian Reorganization Act, is the result of litigation brought 

by a small group of individuals, challenging the Tribe’s reservation on technical 

legal grounds. This would be the first time in modern history that a reservation is 

disestablished, and would result in the Mashpee Tribe becoming perpetually landless. Congress must exercise its plenary authority to ensure that the Mashpee Tribe 

and its reservation land is protected. The Mashpee Tribe, like all other federally recognized tribes, should be entitled to a federally protected reservation where it can 

exercise its sovereignty, protect its culture, and engage in self-determination. Please 

enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. 

Thank you and if you have any questions please feel free to contact me at: 

XXXXXXXXXXXXXXX. 

Sincerely, 

HAROLD C. FRAZIER, 

Chairman. 
84 

THE CHIPPEWA CREE TRIBE OF THE ROCKY BOY’S RESERVATION, 

BOX ELDER, MONTANA

October 8, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Please Support the H.R. 5244/S. 2628, Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of my Tribe, the Chippewa Cree Tribe, I write today to ask that you 

support H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act, which are now pending in the House Natural Resources 

Committee—Subcommittee on Indian, Insular, and Alaska Native Affairs, and in 

the Senate Indian Affairs Committee. This bipartisan bill is broadly supported in 

Indian country and is urgently needed in order to ensure that the Mashpee Reservation, located within the Mashpee Tribe’s traditional homelands, is not disestablished 

due to a technicality. 

The Mashpee Reservation was established in accordance with the Indian 

Reorganization Act and with the strong support of the local community. However, 

this reservation is now being threatened by litigation that could soon return the 

Tribe to landlessness—something that the IRA was enacted to prevent. As you 

know, tribal land allows tribes to protect their cultures, provide public services to 

their members, and engage in economic development. By reaffirming the status of 

the Mashpee Reservation, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act will ensure that these essential components of self-determination are 

preserved. 

We respectfully request that Congress fulfill its trust responsibility to the 

Mashpee Tribe by enacting the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. Thank you for considering this request and for the work you do for Indian 

country. 

Sincerely, 

HARLAN BAKER, 

Chairman of the Chippewa Cree Tribe. 
85 

FORT SILL—CHIRICAHUA—WARM SPRINGS—APACHE TRIBE, 

APACHE, OKLAHOMA

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of my Tribe, we respectfully urge that the Senate Indian Affairs 

Committee, and the House Natural Resources Committee and its Subcommittee on 

Indian and Alaska Native Affairs, do everything possible to ensure swift enactment 

of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 

2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe’s reservation—which was established with the 

strong support of surrounding local governments—is threatened by litigation 

brought by a NIMBY group based on technical legal issues. We urge Congress to 

use its plenary authority to ensure that the Mashpee Tribe is not forever rendered 

perpetually landless by enacting the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act. 

Sincerely, 

JEFF HAOZOUS, 

Tribal Chairman. 
86 

THE GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, 

PESHAWBESTOWN, MI 

September 26, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for H.R. 5244, the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

In 1980, the Grand Traverse band of Ottawa and Chippewa Indians (GTB) 

became the first federally recognized tribe under the CFR Part 83 process. These 

administratively promulgated federal rules to recognize an Indian tribe have their 

origins in the Congressional Indian Policy Review Commission findings in the 1970s 

that the federal government had purposely or negligently neglected its trust obligation to primarily historic Midwest and Eastern Tribes. GTB, like many Indian 

tribes, had been administratively terminated by federal policy and, as a result, the 

federal trust relation between GTB and the United States was diminished, but 

never terminated. As part of the findings in the historic Indian Policy Review 

Commission, the Secretary of the Interior was congressionally directed to promulgate federal rules to recognize Indian tribes that had been neglected by variable and 

inconsistent administration of federal Indian policy over time. 

The Mashpee Wampanoag Tribe is substantially similar to the Grand Traverse 

Band of Ottawa and Chippewa Indians in its history of neglect by the federal 

government. That history of neglect by the United States should not now be used 

to categorically determine an arbitrary date under federal law tied to the Indian 

Reorganization Act (IRA). Without a question, the Mashpee Wampanoag Tribe is an 

Indian tribe. The circumstances of Mashpee’s relation to federal Indian law is largely a result of federal Indian policy, which is not controlled by the Mashpee tribe, 

indeed, the federal government by its neglect controlled the federal Indian law relationship between Mashpee and the federal government. GTB suffered a similar fate 

of neglect. 

GTB urges Congress to recognize the inequities of an arbitrary date created by 

the IRA and to therefore extend the benefits of federal Indian law to the Mashpee 

Wampanoag by the enactment of H.R. 5244, the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act. The enactment of H.R. 5244 would be a measure of 

historical justice to the Mashpee based upon its previous historical neglect by the 

federal government. 

Sincerely, 

THURLOW ‘‘SAM’’ MCCLELLAN, 

Tribal Chairman. 
87 

GUIDIVILLE INDIAN RANCHERIA, 

TALMAGE, CA 

June 7, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of our Tribe, we respectfully urge that the Senate Indian Affairs 

Committee, and the House Natural Resources Committee and its Subcommittee on 

Indian and Alaska Native Affairs, do everything possible to ensure swift enactment 

of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 

2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. We are acutely and painfully aware of the importance of this, having had our reservation lands illegally terminated by the federal government over 

60 years ago. Despite our best efforts, we have yet to recover a usable trust land 

base. The process to acquire new lands in trust is long, difficult, expensive and 

wrought with anti-Indian organizations obstructionist tactics and litigation. The result of no land base on all aspects of the Tribe is absolutely devastating, and we 

can testify to this fact first hand. 

We understand the Mashpee Tribe’s reservation, which was established with the 

strong support of surrounding local governments, but is now threatened by litigation 

brought by a NIMBY group based on technical legal issues. Addressing this situation is the perfect opportunity for the United States to demonstrate and perform its 

trust responsibility to the Tribe by using its lawmaking authority to protect the 

Tribe from such unethical attacks. We strongly urge Congress to use its plenary 

authority to ensure that the Mashpee Tribe is not forever rendered perpetually 

landless by enacting the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. 

Sincerely, 

MERLENE SANCHEZ, 

Tribal Chairperson. 
88 

HUALAPAI TRIBE,

OFFICE OF THE CHAIRPERSON, 

PEACH SPRINGS, ARIZONA

October 17, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of the Hualapai Tribe, we respectfully urge that the Senate Indian 

Affairs Committee, and the House Natural Resources Committee and its 

Subcommittee on Indian and Alaska Native Affairs, do everything possible to ensure 

swift enactment of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

(H.R. 5244 and S. 2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe’s reservation—which was established with the 

strong support of surrounding local governments—is threatened by litigation 

brought by a NIMBY group based on technical legal issues. We urge Congress to 

use its plenary authority to ensure that the Mashpee Tribe is not forever rendered 

perpetually landless by enacting the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act. 

Sincerely, 

DAMON R. CLARKE, CHAIRMAN

Hualapai Tribal Council 
89 

JENA BAND OF CHOCTAW INDIANS, 

JENA, LOUISIANA

May 9, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of the Jena Band of Choctaw Indians, a federally recognized Tribe in 

Louisiana and long time member of the United South and Eastern Tribes, we respectfully urge that the Senate Indian Affairs Committee and the House Natural 

Resources Committee and its Subcommittee on Indian and Alaska Native Affairs 

work diligently and do everything legally possible to ensure the swift enactment of 

the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 

2628). 

We believe every federally recognized tribe in the United States is entitled to a 

federally protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe’s reservation, which was established with the 

strong support of surrounding local governments and which I have visited, is threatened by litigation brought by a NIMBY group based on, as I understand it, technical 

legal issues. We urge Congress to use its plenary authority and enact the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act to ensure that the Mashpee Tribe 

is not forever rendered perpetually landless. 

Sincerely, 

B. CHERYL SMITH, 

Tribal Chief. 
90 

LAC VIEUX DESERT BAND OF LAKE SUPERIOR CHIPPEWA

TRIBAL GOVERNMENT, 

WATERSMEET, MICHIGAN

June 8, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for H.R. 5244/S. 2628, Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act 

Dear esteemed members of Congress: 

I am writing on behalf of Lac Vieux Desert Band of Lake Superior Chippewa 

Indians to advocate for the Mashpee Wampanoag Tribe Reservation Reaffirmation 

Act (H.R. 5244 and S. 2628). We strongly urge the Senate Indian Affairs Committee, 

and the House Natural Resources Committee and its Subcommittee on Indian and 

Alaska Native Affairs, to utilize their plenary power and ensure the reaffirmation 

of the Mashpee Tribe’s Reservation. 

The Mashpee Wampanoag Tribe is a federally recognized tribe with a reservation 

located within its historical homeland in Massachusetts. This reservation was established in accordance with the Indian Reorganization Act and with strong local 

government support. The Mashpee Tribe has been successful in rebuilding and providing for its members, as well as establishing great relationships with surrounding 

local governments. The Mashpee Tribe’s reservation is threatened by litigation that 

could disestablish the reservation, which has not happened since the Termination 

era. 

The Mashpee Tribe is not asking for new or special rights, only the reaffirmation 

of its reservation. If Congress does not exercise its plenary authority, the Mashpee 

Tribe’s reservation and means of self-sufficiency will be lost. This is consistent with 

the federal government’s trust obligations to federally recognized tribes. Please 

enact this important legislation. 

Sincerely, 

JAMES WILLIAMS, JR., 

Tribal Chairman. 
91 

LOWER BRULE SIOUX TRIBE,

TRIBAL ADMINISTRATION, 

LOWER BRULE, SD 

June 6, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for H.R. 5244/S. 2628, Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act 

Dear esteemed members of Congress: 

I am writing on behalf of the Lower Brule Sioux Tribe to advocate for the 

Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628). 

We strongly urge the Senate Indian Affairs Committee, and the House Natural 

Resources Committee and its Subcommittee on Indian and Alaska Native Affairs, 

to utilize their plenary power and ensure the reaffirmation of the Mashpee Tribe’s 

Reservation. 

The Mashpee Wampanoag Tribe is a federally recognized tribe with a reservation 

located within its historical homeland in Massachusetts. This reservation was established in accordance with the Indian Reorganization Act and with strong local 

government support. The Mashpee Tribe has been successful in rebuilding and providing for its members, as well as establishing great relationships with surrounding 

local governments. The Mashpee Tribe’s reservation is threatened by litigation that 

could disestablish the reservation, which has not happened since the Termination 

Era. 

The Mashpee Tribe is not asking for new or special rights, only the reaffirmation 

of its reservation. If Congress does not exercise its plenary authority, the Mashpee 

Tribe’s reservation and means of self-sufficiency will be lost. This is consistent with 

the federal governments trust obligations to federally recognized tribes. Please enact 

this important legislation. 

Sincerely, 

BOYD I. GOURNEAU, 

Chairman. 
92 

MASHANTUCKET PEQUOT TRIBE, 

LEDYARD, CONNECTICUT

June 8, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

I am writing on behalf of my Tribe to support the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act (H.R. 5244 and S. 2628). I understand that this is 

an urgent matter for the Mashpee Tribe and that they have strong local government 

support for the creation of its reservation. 

I further understand that the threat to the Mashpee Tribe’s federally protected 

lands is the result of litigation brought by a small group of individuals, challenging 

the Tribe’s reservation. Congress should exercise its plenary authority to ensure 

that the Mashpee Tribe and its reservation land are protected. The Mashpee Tribe, 

like all other federally recognized tribes, should be entitled to a federally protected 

reservation where it can exercise its sovereignty, protect its culture, and engage in 

self-determination. Please enact the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act. 

Sincerely, 

RODNEY BUTLER, 

Chairman. 
93 

CONGRESS OF THE UNITED STATES 

STAND WITH THE TRIBE WHO WELCOMED THE PILGRIMS: SUPPORT H.R. 312, THE MASHPEE WAMPANOAG TRIBE

RESERVATION REAFFIRMATION ACT

Dear Colleague, 

We write to ask for your support for H.R. 312, the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act. This bipartisan legislation would require the Department of the Interior (DOI) to keep the Mashpee Wampanoag land, approximately 

320 acres in Massachusetts, in trust as federally recognized reservation land. The 

Mashpee Wampanoags have called southeastern New England home for more than 

12,000 years. In fact, they were the tribe who welcomed the Pilgrims and helped 

to ensure their survival during their first winter in Plymouth, Massachusetts. 

Our country has a long, tragic history of disadvantaging Native American tribes. 

It took a nearly 40-year legal battle for the Mashpee Wampanoag Tribe to become 

federally recognized in 2007, which finally granted the Tribe access to important 

federal resources to help protect centuries of culture, provide adequate employment 

and housing, and ensure access to essential services like law enforcement, native 

language programs, pre-K education, and more. 

However, the Supreme Court’s decision in Carcieri v. Salazar just two 

years later called the status of the Mashpee Wampanoag Tribe—and the 

status of tribes around the country—into question. Additionally, the 

Mashpee Wampanoag Tribe has been uniquely affected. A 2018 decision by 

the DOI to reverse its support for the Tribe has left them vulnerable to the 

unprecedented fate of having their land taken out of trust and losing access to these critical resources. Without the straightforward fix in H.R. 312, 

the Tribe could cease to exist. 

All other federally recognized tribes in New England have congressionally ratified 

land claim settlements in which reservations were set aside for those tribes. Their 

reservations, therefore, are protected and not at any risk. The Mashpee Wampanoag 

Tribe is the only federally recognized New England tribe for which Congress has 

not taken action to create and protect a reservation. 

By passing H.R. 312, Congress will not only be protecting the Tribe whose ancestors helped ensure the survival of the Pilgrim settlement, it will protect all Native 

American tribes by sending a strong message that Congress does not approve of any 

efforts to undermine the statutory federal recognition of tribes throughout the 

country. 

Although there has been some negative representation of what H.R. 312 seeks to 

accomplish, the legislation does not provide the Mashpee Wampanoag Tribe with 

any new or special rights. Rather, it simply ensures the Mashpee Wampanoag Tribe 

is no longer vulnerable to having its land taken out of trust, and the Tribe is treated 

equally alongside other Native American tribes so it can care for its members and 

protect its legacy. This action is not without precedent, as Congress has previously 

acted in similar situations to protect tribal lands. H.R. 312 mirrors language 

recently enacted as parts of the Gun Lake Trust Land Reaffirmation Act (P.L. 113– 

179) and the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition 

Act of 2017 (P.L. 115–121). 

H.R. 312 has received widespread support from Native American communities 

across the country, including: 

• Pantribal Organizations including the National Congress of American 

Indians, the United South and Eastern Tribes, the Apache Alliance, the 

Rocky Mountain Tribal Leaders Council, the Affiliated Tribes of Northwest 

Indians, the Midwest Alliance of Sovereign Tribes, the Native American 

Rights Fund, the National Indian Gaming Association, and the Native 

American Finance Officers Association 

• Individual Tribes including the Akiak Native Community (Alaska), the 

Tohono O’odham Nation (Arizona), the Pascua Yaqui Tribe (Arizona), the San 

Carlos Apache Tribe (Arizona), the Tonto Apache Tribe (Arizona), the 

Hualapai Tribe (Arizona), the Mechoopda Indian Tribe (California), the Big 

Valley Band of Pomo Indians (California), the Sycuan Band of the Kumeyaay 

Nation (California), the Guidiville Indian Rancheria (California), the 

Mashantucket Pequot Tribe (Connecticut), the Mohegan Tribe (Connecticut), 

the Nez Perce Tribe (Idaho), the Jena Band of Choctaw Indians (Louisiana), 

the Grand Traverse Band of Ottawa and Chippewa Indians (Michigan), the 

Lac Vieux Desert Band of Lake Superior Chippewa (Michigan), the Chippewa 
94 

Cree Tribe of the Rocky Boy’s Reservation (Montana), the Shinnecock Indian 

Nation (New York), the Spirit Lake Tribe (North Dakota), the Ft. Sill Apache 

Tribe (Oklahoma), the Otoe Missouri Tribe of Indians (Oklahoma), the 

Narragansett Indian Tribe (Rhode Island), the Yankton Sioux Tribe (South 

Dakota), the Cheyenne River Sioux Tribe (South Dakota), the Lower Brule 

Sioux Tribe (South Dakota), the Ute Indian Tribe (Utah), the Suquamish 

Tribe (Washington), the Stockbridge-Munsee Band of Mohican Indians 

(Wisconsin), the Oneida Nation (Wisconsin), and the St. Croix Tribe of 

Chippewa Indians (Wisconsin) 

Thank you for your attention to this bipartisan legislation as we work to support 

the existence of the Mashpee Wampanoag Tribe. If you have any questions or concerns about this legislation, please contact Michael Wertheimer with Rep. Keating 

at (XXX) XXX–XXXX. Should the opportunity arise, we respectfully urge you to vote 

Yes on passage of this legislation. 

Sincerely, 

William R. Keating Joseph P. Kennedy, III 

Member of Congress Member of Congress 

Richard E. Neal James P. McGovern 

Member of Congress Member of Congress 

Stephen F. Lynch Katherine M. Clark 

Member of Congress Member of Congress 

Seth Moulton Ayanna Pressley 

Member of Congress Member of Congress 

Lori Trahan 

Member of Congress 
95 

THE COMMONWEALTH OF MASSACHUSETTS,

MASSACHUSETTS SENATE, 

BOSTON, MA 

August 6, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. DOUG LAMALFA, 

Hon. RUBEN GALLEGO, 

House Subcommittee on Indian and Alaska Native Affairs, 

Washington, DC 20515. 

Re: The Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and 

S. 2628) 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa, and 

Ranking Member Gallego: 

I write to you today in support H.R. 5244 as an economic stimulus to our state 

and region. The construction and operation of the First Light Resort and Casino by 

the Mashpee Wampanoag Tribe will bring a significant economic impact to the 

Southeastern Massachusetts economy, providing stable and good paying jobs for 

years to come. Through partnerships with local businesses, the Tribe has showed 

an exceptional commitment to revitalizing the entirety of the local and regional 

economy, and the immediate creation of nearly 7,000 rests on their success in this 

endeavor. 

I would like to thank the Committee for holding a hearing on this matter, and 

respectfully request that this legislation be passed. 

Sincerely, 

NICK COLLINS, 

State Senator,

First Suffolk District. 
96 

THE COMMONWEALTH OF MASSACHUSETTS,

MASSACHUSETTS SENATE,

OFFICE OF THE MINORITY LEADER, 

BOSTON, MA 

August 6, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. DOUG LAMALFA, 

Hon. RUBEN GALLEGO, 

House Subcommittee on Indian and Alaska Native Affairs, 

Washington, DC 20515. 

Re: The Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and 

S. 2628) 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa, and 

Ranking Member Gallego: 

Job creation and sustainable economic development are crucial to the continued 

growth of the Southeastern Massachusetts region. The construction and operation 

of the First Light & Casino by the Mashpee Wampanoag Tribe will bring a much 

needed boost to struggling Southeastern Massachusetts economy. The bipartisan 

Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628) 

will ensure that the Tribe’s reservation is protected, and will secure economic 

growth in Southeastern Massachusetts for years to come. I applaud the Committee 

for scheduling a hearing on this important legislation and I respectfully request that 

this letter be submitted for the hearing record. 

The Tribe has worked to build partnerships with many local businesses to facilitate the construction of the First Light Resort & Casino. These partnerships will 

help to revitalize and strengthen the Southeastern Massachusetts community. All 

of this vital economic development for Southeastern Massachusetts is now at risk 

due to bureaucratic red tape and technical legal issues that are blocking the Tribe 

from moving ahead with the casino and resort. 

If H.R. 5244 passes, construction of the casino and resort could resume immediately, instantly creating jobs for residents of Southeastern Massachusetts. The 

construction and operation of the casino and resort will create nearly 7,000 jobs. 

Additionally, the operation of the casino and resort will revitalize existing business 

in Southeastern Massachusetts and incentivize businesses to come to the community. I urge this Committee to support economic development in Southeastern 

Massachusetts by working to secure passage of H.R. 5244. 

Sincerely, 

BRUCE E. TARR, 

State Senator,

Minority Leader. 
97 

THE COMMONWEALTH OF MASSACHUSETTS,

HOUSE OF REPRESENTATIVES, 

STATE HOUSE, BOSTON, MA 

July 25, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. DOUG LAMALFA, 

Hon. RUBEN GALLEGO, 

House Subcommittee on Indian and Alaska Native Affairs, 

Washington, DC 20515. 

Re: The Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and 

S. 2628) 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa, and 

Ranking Member Gallego: 

Job creation and sustainable economic development are crucial to the continued 

growth of the Southeastern Massachusetts region. The construction and operation 

of the First Light Resort & Casino by the Mashpee Wampanoag Tribe will bring a 

much needed boost to the struggling Southeastern Massachusetts economy. The bipartisan Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and 

S. 2628) will ensure that the Tribe’s reservation is protected and secure economic 

growth in the Southeastern Massachusetts region for years to come. I applaud the 

Committee for scheduling a hearing on this important legislation and I respectfully 

request that this letter be submitted for the hearing record. 

The Tribe has worked to build partnerships with many local businesses to facilitate the construction of the First Light Resort & Casino. These partnerships will 

help to revitalize and strengthen the Southeastern Massachusetts community. All 

of this vital economic development for Southeastern Massachusetts is now at risk 

due to bureaucratic red tape and technical legal issues that are blocking the Tribe 

from moving ahead with the casino and resort. 

If H.R. 5244 passes, construction of the casino and resort could resume immediately, instantly creating jobs for residents of Southeastern Massachusetts. The 

construction and operation of the casino and resort will create nearly 7,000 jobs. 

Additionally, the operation of the casino and resort will revitalize existing business 

in Southeastern Massachusetts and incentivize businesses to come to the community. I urge this Committee to support economic development in Southeastern 

Massachusetts by working to secure passage of H.R. 5244. 

Sincerely, 

BRADLEY H. JONES JR., 

Minority Leader. 
98 

THE COMMONWEALTH OF MASSACHUSETTS,

HOUSE OF REPRESENTATIVES, 

STATE HOUSE, BOSTON, MA 

March 27, 2019 

Hon. RUBEN GALLEGO, CHAIRMAN, 

Hon. PAUL COOK, RANKING MEMBER, 

House Subcommittee on Indigenous Peoples of the United States, 

Washington, DC 20515. 

Re: Mashpee Wampanoag Tribe Reservation Reaffirmation Act, H.R. 312 

Dear Chairman Gallego and Ranking Member Cook: 

I am writing to urge the House Natural Resources Committee and its 

Subcommittee on Indigenous Peoples of the United States to support the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act. 

The establishment of the Mashpee Wampanoag Tribe’s reservation has brought 

the promise of significant economic development that will not only benefit the 

Mashpee Wampanoag Tribe but the entire southeastern Massachusetts region. It 

will ensure that the Tribe’s reservation is protected and secure long-term economic 

growth in the entire region for years to come. 

The construction and operation of the Tribe’s planned casino and resort will create 

nearly 7,000 jobs. Additionally, the operation of the casino and resort will revitalize 

existing businesses in the surrounding areas and incentivize the creation of new 

ventures that will provide even more jobs for residents. The operation of the casino 

and resort will also bring more than just jobs to our community. The Tribe has committed to $30 million in upgrades to infrastructure in the region and $10 million 

per year to local first responders and municipal services. 

Passage of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act is critically important to the economic future of southeastern Massachusetts and we urge 

you and this Committee to act swiftly to support the enactment of this legislation. 

Sincerely, 

SHAUNNA O’CONNELL, 

State Representative. 
99 

THE COMMONWEALTH OF MASSACHUSETTS,

HOUSE OF REPRESENTATIVES, 

STATE HOUSE, BOSTON, MA 

March 27, 2019 

Hon. RAUL GRIJALVA, CHAIRMAN, 

Hon. ROB BISHOP, RANKING MEMBER, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Dear Chairman Grijalva and Ranking Member Bishop: 

Wuneekeesuq. I am the State Representative for the Third Barnstable District in 

Massachusetts, that includes the town of Mashpee. I am writing to urge the House 

Natural Resources Committee to move H.R. 312—The Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act to the floor of the House as soon as possible. H.R. 

312 will confirm the status of the tribe’s reservation. 

The Mashpee Wampanoag Tribe has longstanding positive relationships with local 

communities surrounding its reservation. The Mashpee Wampanoag Tribe’s ancestors taught the Pilgrims how to survive and farm the land. Leaders of the tribe 

formed an alliance with the Pilgrims, and the very first Thanksgiving was a 

Wampanoag feast joined by the Pilgrims to celebrate a successful fall harvest. That 

feast provided an enduring lesson of what can come from people of different backgrounds sitting down together and authentically listening to each other. 

Over the centuries, the tribe has endured challenges brought about as a result 

of settlement and development. These challenges have been overcome with a sense 

of purpose and identity, and the tribe was officially recognized by the federal 

government in 2007. The town of Mashpee and the Mashpee Wampanoag Tribe 

have worked together to build a relationship of mutual respect and recognition as 

is evidenced by the town’s support for H.R. 312. 

Much of the dialogue around tribal recognition and land in trust has surrounded 

the development of a resort casino and the economic benefits to the Wampanoag and 

Southeastern Massachusetts. While this is definitely an important factor, it should 

not be the sole reason for reaffirming the reservation status. The lands currently 

in trust are a small representation of the aboriginal homeland of the Wampanoag 

people. The People of the First Light have sustainably lived on this land for over 

12,000 years. Reaffirmation of land in trust by the U.S. Congress would be a clear 

message that also reaffirms the dignity and identity of a culture that predates the 

American experiment. 

As for the economic benefits of H.R. 312, the construction and operation of the 

tribe’s planned casino and resort will create nearly 7,000 jobs that will benefit residents of Southeastern Massachusetts. Furthermore, the operation of the casino and 

resort will rejuvenate existing businesses in the surrounding areas and help to bring 

further development to our communities. 

The Mashpee Wampanoag Tribe is an important partner to local governments 

with the shared goal of creating a prosperous Southeastern Massachusetts community. Passage of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act will 

not only serve to benefit Southeastern Massachusetts, it will reaffirm the culture 

and identity of a people who helped settle the Commonwealth of Massachusetts. As 

my Wampanoag friends would say, that in and of itself is Wuneeshkeety (Good 

Medicine). I urge the Committee to favorably release this legislation and work 

toward its enactment. 

Kutaputunumuw, 

DAVID T. VIEIRA, 

State Representative. 
100 

GENERAL SOCIETY OF MAYFLOWER DESCENDANTS,

THE MAYFLOWER SOCIETY, 

PLYMOUTH, MA 

March 26, 2019 

Hon. NANCY PELOSI, 

Speaker of the House 

12th District, California 

Dear Speaker Pelosi: 

The General Society of Mayflower Descendants requests your support for H.R. 

312, a bill designed to provide federal protection for Mashpee Wampanoag reservation lands that were designated for the Tribe by action of the US Department of 

the Interior in 2015. This legislation enjoys bipartisan support, including key members of the House Natural Resources Committee. 

The decision by the Department of the Interior to hold the Tribe’s land in trust 

was based on a lengthy and arduous process which demonstrated, among other 

things, that these 321 acres in Massachusetts were just a tiny part of the homeland 

originally held by the ancestors of the Mashpee Wampanoags. We find it to be 

unconscionable that on September 7, 2018, the Interior Department reversed that 

decision, based on their interpretation that the Tribe was not ‘‘under federal 

jurisdiction’’ in 1934. 

You may know that in March 1621 our ancestors and the ancestors of the 

Mashpee Wampanoags formulated an agreement of mutual support. That peaceful 

agreement lasted for over fifty years, outliving all of those who signed it or who witnessed its creation, and allowing Plymouth Colony to survive. Among the signers 

was Governor John Carver for the Pilgrims and Massasoit, Osamequin, the Great 

Sachem of the Wampanoags. Terms of that agreement spelled out that King James 

would esteem Massasoit as his friend and ally. The agreement is a worthy precedent 

to be followed today by all who honor the Pilgrims and the Native Americans who 

created this critical part of American society. 

The General Society of Mayflower Descendants is composed of 30,000 members, 

each of whom has proven lineage from the Mayflower Pilgrims. We have members 

in all fifty states, Canada, and around the world. It is no stretch to state that none 

of us would be here today without the historically documented help that the people 

of the Wampanoag Tribe gave to our ancestors. Part of our organization’s purpose 

is to perpetuate the memory of the Pilgrims’ accomplishments. Upholding the spirit 

of their agreement with their neighbors honors that purpose. 

On behalf of our members I urge you to support H.R. 312 to guarantee the 

Mashpee Wampanoag Tribe the protection of their lands, which is an important element of their self-determination as a Tribe. Thank you for your consideration of this 

request. 

Sincerely, 

GEORGE P. GARMANY, JR. MD, 

Governor General. 
101 

MECHOOPDA INDIAN TRIBE OF CHICO RANCHERIA, 

CHICO, CA 

April 30, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of my Tribe, we respectfully urge that the Senate Indian Affairs 

Committee, and the House Natural Resources Committee and its Subcommittee on 

Indian and Alaska Native Affairs, do everything possible to ensure swift enactment 

of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 

2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe’s reservation—which was established with the 

strong support of surrounding local governments—is threatened by litigation 

brought by a NIMBY group based on technical legal issues. We urge Congress to 

use its plenary authority to ensure that the Mashpee Tribe is not forever rendered 

perpetually landless by enacting the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act. 

Sincerely, 

DENNIS E. RAMIREZ, 

Chairman. 
102 

MIDWEST ALLIANCE OF SOVEREIGN TRIBES, 

GRESHAM, WI 

June 13, 2018 

Hon. JOHN HOEVEN, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Hoeven: 

The MAST office understands and respects these key issues that you are working 

on day to day for Indian Country! 

We respectfully, ask that the Senate Indian Affairs Committee, the House Natural 

Resources Committee and it’s Subcommittee on Indian and Alaska Native Affairs 

take all action to ensure enactment of the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act—H.R. 5244 and S. 2628. 

All Federally recognized tribes in the United States should be holding federally 

protected lands labeled Reservations where all Nations recognize and respect each 

other’s Sovereignty! 

We ask Congress to use its plenary authority to ensure that the Mashpee 

Wampanoag Nation is not forever rendered perpetually landless by enacting H.R. 

5244 and S. 2628. 

Respectfully, 

SCOTT R. VELE, 

Executive Director. 
103 

THE MOHEGAN TRIBE, 

UNCASVILLE, CT 

June 6, 2016 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: The Mohegan Tribe Supports the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of the Mohegan Tribe of Indians of Connecticut, I respectfully request 

that the Senate Indian Affairs Committee, and the House Natural Resources 

Committee and its Subcommittee on Indian and Alaska Native Affairs, do everything possible to ensure enactment of the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act (H.R. 5244 and S. 2628). 

The Mashpee Tribe is the only federally recognized tribe in the Northeast that 

does not have a land claim settlement. As a result, unlike other tribes with such 

settlements, Mashpee had no alternative but to rely on the general land acquisition 

authority provided in the Indian Reorganization Act (IRA) to establish a reservation. 

The Mashpee Tribe’s reservation is located within Mashpee’s traditional homelands, 

and was established in accordance with the IRA and with the strong support of surrounding local governments. Unfortunately, the existence of this reservation is now 

threatened by litigation based on technical legal issues. These technical legal issues 

could lead to the disestablishment of Mashpee’s reservation—the first time an 

Indian reservation would be disestablished since the Termination Era. 

A land base is a foundational component of tribal sovereignty and provides the 

space for tribes to maintain our cultural identities and build our economies. The 

Mashpee Wampanoag Tribe Reservation Reaffirmation Act reaffirms that status of 

the Tribe’s reservation so that the Tribe can continue to provide vital services to 

its members, protect its culture, and expand its economy to provide for future 

generations. 

We urge Congress to employ its plenary authority to enact the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act to ensure that the Mashpee Tribe 

is not forever rendered continually landless. 

Sincerely, 

KEVIN P. BROWN, ’RED EAGLE’’, 

Chairman. 
104 

1 Indian Reorganization Act of 1934, 25 U.S.C. ch. 14, subch. V § 461 et seq. 

NAFOA, 

WASHINGTON, DC 

July 20, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

NAFOA is a national organization representing tribal governments with the 

mission of building and sustaining economic and community development. In furtherance of that mission, we are writing to express our support for the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628) and 

respectfully urge its swift enactment. 

Lands are integral to tribal sovereignty, cultural identity, and for building 

institutions and economies that foster the well-being of tribal citizens. The U.S. 

Department of the Interior (DOI) has exercised its authority under the Indian 

Reorganization Act (IRA) 1 to restore tribal homelands following devastating Federal 

actions including removal, allotment, and relocation policies. Over the last several 

decades, restoration of homelands has enabled tribes to provide essential government services to tribal members and develop their communities. Any uncertainty regarding the status of tribal lands will harm tribal governments’ ability to make 

independent self-determined decisions and provide for the well-being of its citizens— 

two fundamental rights of any sovereign. 

The Department of Interior issued a decision on September 18, 2015 to take 

approximately 321 acres of land into trust on behalf of the Mashpee Wampanoag 

Tribe of Massachusetts. A subsequent legal challenge to the decision threatens 

tribal sovereignty and the Mashpee Wampanoag Tribe’s ability to make important 

decisions affecting its members. The Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act will provide much-needed certainty regarding the status of the 

tribe’s newly restored lands and allow the tribe to go forward in providing necessary 

services to tribal members. 

We urge Congress to use its authority to restore Mashpee Wampanoag Tribe’s 

lands through the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. 

Please feel free to contact me if you have questions or need further information. 

Sincerely, 

DANTE DESIDERIO, 

Executive Director. 
105 

NARRAGANSETT INDIAN TRIBE, 

CHARLESTOWN, RHODE ISLAND

March 26, 2019 

Hon. DAVID CICILLINE, 

Hon. JIM LANGEVIN, 

U.S. House of Representatives, 

Washington, DC 20515. 

Re: Mashpee Wampanoag Reservation Reaffirmation Act 

Dear Congressmen: 

The Narragansett Indian Tribe wrote to Congress last year, and would like to 

take this opportunity to reiterate our strong support for the Mashpee Wampanoag 

Reservation Reaffirmation Act (currently H.R. 312, formerly H.R. 5244). 

This emergency legislation was crafted in an effort to prevent the Mashpee 

Wampanoag Tribe from the threat of losing their reservation lands. It also addresses the significant damage that has plagued the Mashpee Wampanoag Tribe by commercial casino companies that have chosen to challenge the status of the 

Wampanoag Tribe’s reservation for no other apparent reason than their own financial gain. The Wampanoag Tribe has been forced to lay off workers and cut programs; with the unfortunate truth being that more layoffs and program cuts are on 

the horizon if their reservation cannot be protected. This has inevitably become a 

moral issue for the United States; the entirety of Indian Country is watching and 

collectively poses the question—Will the United States of America honor its word 

to the Wampanoag Tribe and Protect their reservation? 

It should be noted that both the Wampanoag Tribe and this respective Bill are 

strongly supported by the state government’s with closest proximity to the Tribe’s 

Reservation; the Town of Mashpee and the City of Taunton. 

We urge you to vote in favor of H.R. 312. 

I thank you for your time with this matter. 

Respectfully, 

ANTHONY DEAN STANTON, 

Chief Sachem. 
106 

TESTIMONY OF CHIEF SACHEM ANTHONY DEAN STANTON 

NARRAGANSETT INDIAN TRIBE 

‘‘INDIGENOUS PEOPLES LEGISLATIVE HEARING’’ ON H.R. 312, H.R. 375 AND

RESPECT ACT 

APRIL 3, 2019 

On behalf of the more than 2,700 members of the Narragansett Indian Tribe, I 

write to express our Tribe’s support for two measures introduced in the 116th 

Congress: H.R. 312, the ‘‘Mashpee Wampanoag Tribe Reservation Reaffirmation 

Act,’’ and H.R. 375, a measure to reaffirm the authority of the Secretary of the 

Interior to take land into trust for Indian Tribes under the Indian Reorganization 

Act. The Narragansett Indian Tribe also endorses Natural Resources Committee 

Chairman Raul Grijalva’s discussion draft measure, the ‘‘Requirements, 

Expectations, and Standard Procedures for Executive Consultation with Tribes’’ or 

the ‘‘RESPECT Act,’’ a measure to prescribe procedures for effective consultation 

and coordination by Federal agencies with federally recognized Indian Tribes concerning actions of the Federal Government that impact Tribal lands and interests 

to ensure that meaningful tribal input is an integral part of the Federal decisionmaking process. 

This Subcommittee, and the 116th Congress, must decide whether the economic 

interests of the State of Rhode Island should dictate Federal Indian policy for the 

Nation and the millions of American Indians and Alaska Natives, most of whom live 

at or below the poverty level. In the 17th Century, the ancestors of the Mashpee 

Wampanoag Tribe and the Narragansett Indian Tribe extended friendship and protection to the European immigrants who struggled to survive on our lands. The 

roles of their respective descendants are now reversed. We ask whether the United 

States, in the 21st Century, will return the favor and protect the descendants of the 

Mashpee Wampanoag and us, the Narragansett. We are confident in the ultimate 

outcome. Dr. Martin Luther King once said that the moral arc of the universe is 

long, but it bends toward justice. The question is how many years will we and other 

Tribes have to wait. 

The history of the Narragansett Indian Tribe in what today is Rhode Island is 

well established. Although we have existed in Rhode Island for millennia, we regained Federal acknowledgement only in 1983, after a century of effort, through the 

cumbersome Federal Acknowledgement Process (FAP). It was the Narragansett that 

granted Roger Williams asylum and safe haven as he fled from Plymouth and the 

Massachusetts Bay colonies. With the assistance and protection of our Tribal ancestors, Canonicus and Miantonomi, Williams was able to establish Providence 

Plantations in 1636 as a haven for religious tolerance and peaceful coexistence with 

our ancestors. Roger Williams, a minister and theologian, advocated honorable 

dealings with our Tribe. 

What would Roger Williams make of the current leaders of the State of Rhode 

Island, their representatives in Congress, and the testimony presented to the 

Subcommittee today on behalf of its Governor—opposing the right of the Mashpee 

Wampanoag Tribe to retain in Federal trust a 321-acre Tribal homeland for their 

members in Taunton, Massachusetts, and provide essential governmental services— 

for the stated reason that Rhode Island claims a 100-mile economic zone of interest 

around its two de facto State casinos in Lincoln and Newport, Rhode Island. 

Those who lack empathy for the plight of others do not govern well. They use tactics of divide and conquer and are forever pitting ‘‘us’’ against ‘‘them.’’ By ignoring 

the universal and unalienable right of all people to ‘‘life, liberty, and the pursuit 

of happiness,’’ they stand astride history and the unrelenting progress of a Nation 

and its people to better themselves. It was true of the Civil Rights movement and 

it is true of the latest ‘‘Indian Wars’’ over Carcieri, gaming and other land-into trust 

issues. 

It will take the leadership of the House Natural Resources Committee, its 

Chairman, Ranking Member, and members, and the entire Congress, to push aside 

those who would stifle and suppress the aspirations of Native Americans to improve 

their condition. State officials will bitterly fight, as they have done for decades, to 

keep the economic competitive advantage they have gained at the expense of Native 

Americans. The Mashpee Wampanoag Tribe are their latest victim. There are 535 

State representatives serving in Congress. All of them are also Federal trustees who 

must honor the Nation’s treaties and Federal laws enacted for the benefit of Indian 

tribes. With unity and courage, the Nation can do better for Indian tribes. 
107 

If Rhode Island prevails in defeating passage of H.R. 312, the State, with just over 

one million people, will set back by a generation the aspirations of millions of the 

American Indians and Alaska Natives who seek community stability and economic 

development opportunities that can only occur if Congress reaffirms, once and for 

all, that Tribal trust lands are in fact trust lands and a Tribe’s homeland that the 

United States will defend and safeguard for generations. Tribal trust lands allow 

federally recognized Indian Tribes to provide essential government services to underserved and poverty-stricken Tribal communities with Federal funds—services 

which often depend on the trust status of the land. 

Mashpee Wampanoag Vice Chairwoman Jessie Little Doe Baird eloquently 

described the dire consequences her members face if the trust status of their 

reservation is lost as a result of litigation brought for the sole purpose of undermining the Tribe’s sovereign status and leaving Mashpee the only New England 

Indian Tribe without a reservation. 

Why is self-determination and self-governance so important to Native people? As 

noted above, most Indian tribes struggle to provide core governmental services to 

their members. We American Indians, by any measure, fall well below our nonIndian fellow Americans in health status and life expectancy, economic status, and 

living conditions (housing, schools, drinking water and wastewater systems, 

broadband and other utilities, law enforcement and public safety, hospitals and clinics, and other essential services). Tribal lands, held in trust by the United States, 

empowers tribes and afford us the opportunity to establish infrastructure, a key 

requirement for promoting community stability—which every people seek. 

In other words, Tribal lands are an essential ingredient that allows us to maintain and perpetuate cultural, social and religious practices that help define us and 

give us our Tribal identity as a separate and distinct people who wish to exercise 

self-determination. It is the aspiration of all people to be free and independent. 

This Committee need only look back to the 105th Congress in 1998 when it considered important amendments to the Indian Self-Determination and Education 

Assistance Act (ISDEAA), Pub. L. 93–638, to understand the importance of Tribal 

self-governance. The ISDEAA, first enacted in 1975, was landmark legislation that 

ushered in the modern era of Federal Indian law and the empowerment of Tribal 

nations by allowing Tribes to step into the shoes of the Secretary of the Interior and 

the Secretary of the Department of Health and Human Services to plan, design and 

carry out Federal programs for Indians with funds provided by the Federal Government. When doing so, the United States fulfills its part of the contract between 

Tribes and the Federal Government, in return for the transfer of millions of acres 

of our aboriginal lands in return for the protection of the United States and for 

services to our members who gave up a way of life. 

With regard to the principles of Self-Governance, former Natural Resources 

Committee Chairman George Miller stated: 

The nature of Self-Governance is rooted in the inherent sovereignty of American 

Indian and Alaska Native tribes. From the founding of this Nation, Indian 

tribes and Alaska Native villages have been recognized as ‘distinct, 

independent, political communities’ exercising powers of self-government, not by 

virtue of any delegation of powers from the Federal Government, but rather by 

virtue of their own innate sovereignty. See Worcester v. Georgia, 31 U.S. (6 Pet.) 

515, 559 (1832). See also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 

(1978). The tribes’ sovereignty predates the founding of the United States and 

its Constitution and forms the backdrop against which the United States has 

continually entered into relations with Indian tribes and Native villages. 

The present model of tribal Self-Governance arose out of the federal policy of 

Indian Self-Determination. The modern Self-Determination era began as 

Congress and contemporary Administrations ended the dubious experiment of 

Termination which was intended to end the federal trust responsibility to 

Native Americans. 

*** 

As a policy, Termination was a disaster. Recognizing this, President Kennedy 

campaigned in 1960 promising the Indian tribes that: 

There would be no change in treaty or contractual relationships without the consent of the tribes concerned. There would be protection of 

the Indian land base, credit assistance, and encouragement of tribal 

planning for economic development. 
108 

*** 

President Richard Nixon’s 1970 ‘Special Message on Indian Affairs’ also called 

for increased tribal self-determination: 

This, then, must be the goal of any new national policy toward the 

Indian people: to strengthen the Indian’s sense of autonomy without 

threatening his sense of community. We must assure the Indian that 

he can assume control of his own life without being separated involuntarily from the tribal group. And we must make it clear that Indians 

can become independent of Federal control without being cutoff from 

Federal concern and Federal support. 

House Rep. No. 105–765, 105th Cong., 2d Sess., Committee on Natural Resources, 

to accompany H.R. 1833, Tribal Self-Governance Amendments of 1998, Additional 

Views of Ranking Member George Miller, pp. 54–55 (1998). 

In concluding his support for the legislation that would become Pub. L. 106–260, 

Act of Aug. 18, 2000, adding title V to the ISDEAA, Congressman Miller noted: 

Sometimes we need to look to the past in order to understand our proper relationship with Indian tribes. More than two centuries ago, Congress set forth 

what should be our guiding principles. In 1789, Congress passed the Northwest 

Ordinance, a set of seven articles intended to govern the addition of new states 

to the Union. These articles served as a compact between the people and the 

States . . . Article Three set for the Nation’s policy toward Indian tribes: 

The utmost good faith shall always be observed toward the Indians; their land 

and property shall never be taken away from them without their consent * * * 

but laws founded in justice and humanity shall from time to time be made, for 

preventing wrongs being done to them * * *. 

Id. p. 60. Emphasis supplied. 

H.R. 312 is such a law—founded in justice and humanity—to prevent further 

wrongs being done to the Mashpee Wampanoag Tribe. The bipartisan measure, introduced by Congressman Keating of Massachusetts, and supported by the Town of 

Mashpee, the City of Taunton, Massachusetts, State legislators and the 

Massachusetts Congressional delegation, would reaffirm, ratify and confirm the 

2016 decision of the Secretary of the Interior to take land into trust for the benefit 

of the Mashpee Wampanoag Tribe. It would further protect the act of Congress from 

legal challenge and, importantly, with limited exception, extend all laws of general 

applicability to Indians and Indian nations applicable to the Mashpee Wampanoag 

Tribe and their members. 

As noted by Vice Chairwoman Jessie Little Doe Baird, H.R. 312 is quite similar 

to Federal laws passed by Congress in recent years that reaffirmed a Tribe’s trust 

land holdings: S. 1603, the Gun Lake Restoration Act, and H.R. 984, the Indian 

Tribes of Virginia Recognition Act. 

Just as the Northwest Ordinance permitted new states to enter the Union on an 

‘‘equal footing’’ with existing states, Congress extended the same principle to tribes. 

In 1994, well before the ill-conceived and wrongly decided 2009 U.S. Supreme Court 

Carcieri decision, Congress amended the Indian Reorganization Act by enacting 

Pub. L. 103–263 to prohibit the federal government and executive agencies from 

taking any action that ‘‘classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes by 

virtue of their status as Indian tribes.’’ 25 U.S.C. § 5123(f). With the history of the 

Northwest Ordinance, it was logical for the Federal Government to reaffirm the 

same principle as to the Nation’s 573 federally recognized Tribes. 

The equal footing amendment to the IRA, sponsored by Senator John McCain, a 

two-time chairman of the Senate Indian Affairs Committee, ‘‘put an end to the discriminatory practices that had been developing’’ within the Department of the 

Interior to classify tribes as either ‘‘historic’’ and ‘‘entitled to the full panoply of inherent sovereign powers not otherwise divested by treaty or congressional action’’ 

or ‘‘created’’ and ‘‘therefore possessing limited sovereign powers.’’ Sen. Rep. No. 112– 

166, 112th Cong., 2d Sess., May 17, 2012, Committee on Indian Affairs, to accompany S. 676, amending the Act of June 18, 1934, to reaffirm the authority of the 

Secretary of the Interior to take land into trust for Indian tribes, p.12 (‘‘Our amendment makes it clear that it is and has always been Federal law and policy that 

Indian tribes recognized by the Federal Government stand on an equal footing to 

each other and to the Federal Government.’’ 140 Cong. Rec. S6147 (daily ed. May 
109 

19, 1994) (statement of Sen. Daniel K. Inouye).’’ (emphasis in original)). Id. at 12, 

fn. 71. 

As noted by Dean Washburn, the ‘‘central flaw in Carcieri’s reasoning is this: 

every tribe that is federally recognized today necessarily existed when the IRA was 

enacted in 1934.’’ The 1994 equal footing amendment to the IRA reaffirmed its applicability to all federally recognized tribes, not just those under Federal superintendence as of 1934. Any tension between the IRA and the 1994 equal footing 

amendment to it, should have been resolved by the courts to harmonize the legislation consistent with the expressed sentiment of Congress that all tribes should be 

treated equal, and not divided into ‘‘haves’’ and ‘‘have nots’’ as is now the case. 

For the above noted reason, we strongly urge this Subcommittee and the Congress 

to also pass H.R. 375, Congressman Tom Cole’s bipartisan measure to reaffirm the 

authority of the Secretary of the Interior to take land into trust for all Indian tribes 

for the simple reason that ‘‘it is and has always been’’ Federal law and policy to 

treat Tribes equally. 

As noted by Dean Washburn, Congressman Cole’s measure would amend the 

Indian Reorganization Act (IRA) in three important ways. First, it strikes the 

phrase ‘‘now under federal jurisdiction’’ from the Act, making it clear that the IRA 

applies to all federally recognized tribes. Second, it makes the amendment retroactive to 1934, the original date of the IRA, and ensures the proper authorization 

for all Secretarial actions taken since and removes the threat of litigation. Third, 

the bill amends the definitions in the IRA to make it clear that the Interior 

Secretary has authority to take lands into trust for Alaska Native villages, putting 

every Tribal Nation on an equal footing as Congress has always intended. 

H.R. 375 is especially important for us, the Narragansett. The Carcieri decision 

was about us and our rights and privileges as a federally recognized Tribe. We 

sought to place a 31-acre parcel in trust for housing development under a jurisdictional framework separate and distinct from that of our 1,800-acre trust settlement 

lands. Rhode Island challenged our right to create a Tribal community under our 

jurisdiction. Rhode Island fought to have our settlement act interpreted as it wanted, in an unnatural manner that strained credulity, rather than as prior Federal 

court decisions held which granted us a degree of independence from State 

interference. 

The State of Rhode Island now opposes Congressman Cole’s measure and argues 

that it ‘‘undermines’’ the Carcieri decision. We recall that the State of Rhode Island 

reversed a Federal court decision in our favor in 1996. The difference is that the 

late Senator John Chafee did it through stealth and without the transparency of today’s hearing. He added a non-germane rider to the FY 1996 appropriations act, a 

must-pass piece of legislation, days before the Senate vote that unilaterally amended our 1978 settlement legislation, and reversed a 1994 decision of the United 

States Court of Appeals for the First Circuit in State of Rhode Island v. 

Narragansett Indian Tribe, 19 F.3d 685 (1994). That decision held that we, like 

other federally recognized Tribes, had the right to pursue economic development 

under the Indian Gaming Regulatory Act (IGRA). There was no consultation between Rhode Island and the Tribe before Senator Chafee acted. We had won an important court victory against Rhode Island and the State was not going to let it 

stand. 

Here, Congressman Cole introduced legislation in the House, Congressional 

hearings are being held, and there is ample public debate by all concerned. 

This is not the first Congress to introduce a ‘‘clean fix’’ to reverse the Carcieri 

decision. Rhode Island has opposed any measure that would include the 

Narragansett Indian Tribe. They would have the Nation believe that we are somehow different than other Indian tribes in the continental United States. We are not. 

Our history is the history of the United States’ treatment of its indigenous people. 

From the King Phillip’s War of 1675, and the Great Swamp Massacre of our ancestors by colonial militia a century before the Declaration of Independence, our aboriginal lands were stolen and diminished in size. Rhode Island colonists, and then 

as State citizens, purchased our lands at cheap prices. By the 19th Century, we had 

little more than a few hundred acres in Washington County, Rhode Island. In the 

latter part of the 19th Century, agents of the State began a lengthy and unrelenting 

campaign to unilaterally and unlawfully de-tribalize the Narragansett Tribe. The 

State passed legislation in violation of the Federal Nonintercourse Act, a combination of acts passed by Congress in the 1790s to protect the inalienability of aboriginal title to Tribal lands without the consent of Congress. In debt, our remaining 

Tribal lands, with the exception of three acres of Indian church lands were sold. We 

have fought ever since to regain recognition and the return of our aboriginal lands. 
110 

But we never stopped being Narragansett. In 1900, the Tribe incorporated itself, 

and in 1934, a long house was built to hold Tribal meetings. 

In 1975, the same year as the ISDEAA was enacted, we brought suit against the 

State of Rhode Island and private landowner, reasserting our aboriginal title claim 

to our ancestral lands. Despite the State’s strong opposition, we prevailed and the 

State entered into settlement negotiations. We were ignored by Rhode Island until 

we asserted our rights. In 1983, we regained Federal recognition that we were and 

have always been a separate and distinct Indian tribe. The State of Rhode Island 

has fought us ever since. The State has opposed nearly all our efforts to pursue economic development. Now the State opposes the Mashpee Wampanoag Tribe because 

the Tribe, and its economic development interests, pose a risk to the State’s two 

casinos and the many Massachusetts residents who travel to Rhode Island to 

gamble. 

Rhode Island State officials have misrepresented the truth on several occasions, 

including today’s hearing. The Governor’s representative, in her written remarks, 

asserts that if H.R. 312 were to become law, the federally recognized Tribes (plural) 

in Rhode Island would argue for similar treatment. Rhode Island’s two senators are 

also on record making similar statements to their Senate colleagues. There is only 

one federally recognized Indian Tribe in the State of Rhode Island, the 

Narragansett. 

In the 1994 First Circuit decision decided in our favor, the Court found that: 

‘‘based on our understanding of the statutory interface, we hold that the provisions 

of the Indian Gaming Regulatory Act apply with full force to the lands in Rhode 

Island now held in Trust by the United States for the Narragansett Indian Tribe.’’ 

Based on that decision, the then-Governor of Rhode Island negotiated the TribeState compact that would permit us to construct and operate a Class III facility on 

Tribal lands under IGRA. He required, however, that we submit to a State referendum. Non-Indians wishing to open casinos in Rhode Island flooded the ballot 

initiative. 

With the prospect of multiple casinos, Rhode Islanders rejected them all. We then 

opted to build and open a bingo hall (class II gaming under IGRA) on our trust 

lands and were completing an environmental assessment, as required by law. 

Senator Chafee had had enough. He inserted a one-sentence amendment to our settlement legislation, the Rhode Island Indian Claims Settlement Act, that stripped 

us of the rights we had fought so hard to secure. Senator Chafee’s amendment read: 

‘‘For purposes of the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.), settlement lands shall not be treated as Indian Lands.’’ Senator McCain objected to this 

unilateral action by Senator Chafee. On the Senate floor, Senator McCain rose and 

remarked: 

Mr. President, I want to express my concern regarding an opposition to 

Section 330 of the general provisions of the Interior and related agencies 

portions of this Omnibus Appropriations Bill because Section 330 would, in 

a discriminatory fashion, dismantle the rights of one Indian tribe to conduct 

gaming activities on its lands like all other Indian tribes. Section 330 is 

specific to Rhode Island. It would expressly deny the only federally recognized Indian tribe in Rhode Island, the Narragansett Indian Tribe, the 

rights other Indian Tribes have under the Indian Gaming Regulatory Act. 

. . . I must say that Section 330 of this appropriations bill is an . . . unfair 

end run around the ongoing work of the authorizing committee [Senate 

Indian Affairs Committee]. Section 330 would substantially amend the authorizing legislation on an appropriation measure without the benefit of any 

legislative hearing, without any contribution by the authorizing committee 

of jurisdiction and without any public debate by those most affected—the 

Narragansett Indian Tribe of Rhode Island. 

That was 23 years ago. We know all too well what happens when State and 

Federal officials exercise power against Indian Tribes without consultation or any 

public debate and with indifference to the aspirations of Native people to provide 

for their communities. 

John Adams famously remarked: 

‘‘Facts are stubborn things; and whatever may be our wishes, our 

inclinations, or the dictates of our passions, they cannot alter the state of 

facts and evidence.’’ 

The weight of public opinion is clear. The Carcieri decision was wrongly decided 

in 2009 and upended 70 years of Federal Indian policy that sought to reverse the 

destructive effects of the Indian Allotment Act that caused the loss of more than 
111 

90 million acres of Indian lands lead to great poverty and suffering for the Nation’s 

first Americans—suffering which continues mostly unabated to this day. We 

Narragansett were among the Indian Tribes that lost our aboriginal lands. We are 

no different than other federally recognized Tribes who fight a never-ending battle 

to hold our Tribal communities together and maintain our cultural identity. It is 

long past time that the Carcieri decision be consigned to the dust bin of history 

where it belongs. 

In conclusion, we enthusiastically endorse and support H.R. 312, H.R. 375 and the 

proposed RESPECT Act that would codify as Federal law the principles of good 

governance; that the United States and the Indian nations should engage in meaningful government-to-government consultation concerning matters that can have 

profound impacts on Tribal communities. 

Thank you for the opportunity to present testimony to the Subcommittee. 

NATIONAL CONGRESS OF AMERICAN INDIANS, 

WASHINGTON, DC 

May 7, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of the National Congress of American Indians, the oldest and largest 

national organization representing the collective interests of American Indian and 

Alaska Natives tribes and their citizens, we respectfully request that you take all 

actions necessary to ensure that the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as soon as possible. This is 

an urgent matter, as the Mashpee Tribe’s reservation is in danger of being taken 

out of trust, despite strong local government support for its creation. 

This threat to the Mashpee Tribe’s federally protected lands, established under 

the authority of the Indian Reorganization Act, is the result of litigation brought 

by a small group of individuals, challenging the Tribe’s reservation on technical 

legal grounds. The Mashpee Tribe, like all other federally recognized tribes, is entitled to a federally protected reservation where it can exercise its sovereignty, protect 

its culture, and engage in self-determination. 

Further, on June 6, 2018, NCAI passed a motion by the full body of its 2018 

Midyear Conference, stating its complete support for the Mashpee Tribe and calling 

upon Congress to pass the Mashpee Wampanoag Tribe Reservation Reaffirmation 

Act. The failure of Congress to act in this instance could result in the Mashpee 

Tribe’s reservation being disestablished. This would be the first time in modern history that a reservation is disestablished, and would leave the Tribe perpetually 

landless. For this reason, it is imperative that Congress exercise its authority to provide the Tribe a land base and an opportunity to effectively self-govern and prosper. 

In closing, thank you for your consideration of this important issue. If you have 

any further questions or comments, please feel free to reach out to Derrick Beetso, 

NCAI Senior Counsel, at XXXXXXXXXX. Thanks again. 

Sincerely, 

JACQUELINE PATA, 

NCAI Executive Director. 
112 

1See P.L. 103–263, 108 Stat 707 (1994 providing that ‘‘[d]epartments or agencies of the United 

States shall not promulgate any regulation or make any decision or determination pursuant to 

the Act of June 18, 1934 (25 U.S.C. 461 et seq., 48 Stat. 984) as amended, or any other Act 

of Congress, with respect to a federally recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally 

recognized tribes by virtue of their status as Indian tribes.’’). 

TESTIMONY OF THE NATIONAL CONGRESS OF AMERICAN INDIANS 

HEARING ON H.R. 375 

APRIL 18, 2019 

On behalf of the National Congress of American Indians (NCAI), the oldest and 

largest national organization made up of American Indian and Alaska Native tribal 

governments and their citizens, I write to submit testimony on H.R. 375—To amend 

the Act of June, 18, 1934, to reaffirm the authority of the Secretary of the Interior 

to take land into trust for Indian Tribes, and for other purposes. H.R. 375 is legislation that would protect existing Indian trust lands and restore 

certainty and fairness to the tribal land into trust process which has been impaired 

by the Supreme Court’s decision Carcieri v. Salazar, 555 U.S. 379 (2009). As demonstrated below, Carcieri has effectively created two classes of tribal nations, and 

has overburdened tribal, federal, and state resources by generating unnecessary 

conflict over the restoration and retention of tribal homelands and consequently impeded economic development. Accordingly, NCAI strongly urges Congress to end this 

turmoil by enacting a congressional fix to the Indian Reorganization Act (IRA) 

which reaffirms the Secretary of the Interior’s (Secretary) authority to restore tribal 

homelands for all federally recognized tribal nations. 

I. Overview on Congress’ Intent in Passing the IRA & the Carcieri Problem 

Tribal nations are the sovereign beneficiaries of a unique fiduciary relationship 

with the Federal Government, and Congress has plenary and exclusive authority to 

legislate over Indian affairs. 

In exercise of this plenary authority, in 1934 Congress repudiated its policy of 

forced assimilation of tribal people and allotment of their lands under the General 

Allotment Act of 1887 by enacting the IRA. By that time, federal allotment policies 

had resulted in the taking and loss of 86 million acres of tribal homelands. In doing 

so, such policies severely fractionated treaty-bargained for Indian Reservations, resulting in the mismanagement of tribal interests, the ‘‘checker-boarding’’ of Indian 

lands, and the jurisdictional patchwork surrounding many residents of Indian 

country today. 

The IRA ended this destructive policy by setting forth a process to restore and 

protect tribal homelands in order to provide tribal nations with the tools to succeed 

as self-governing bodies. To accomplish this purpose, 25 U.S.C. § 5108 authorized 

the Secretary to acquire lands ‘‘within or without existing reservations’’ for the 

‘‘purpose of providing land for Indians.’’ For over 75 years, the United States 

Department of the Interior (Interior) consistently interpreted the IRA as authorizing 

the Secretary to acquire land in trust status for any tribal nation—so long as that 

nation was federally recognized at the time of the trust application. 

In Carcieri the Supreme Court departed from this long-standing precedent and 

determined that the IRA land into trust process requires tribal nations to demonstrate that they were ‘‘under federal jurisdiction’’ in 1934. However, the Carcieri 

decision did not explain how ‘‘under federal jurisdiction’’ should be defined. To that 

end, in 2014, the implementing agency, Interior, provided interpretive guidance in 

the form of a Solicitor’s Opinion M–37029. 

M–37029 introduced the following two-part agency analysis to address the ‘‘under 

federal jurisdiction’’ question presented by the Carcieri decision: (1) whether there 

is a sufficient showing in a tribal nation’s history that during or prior to 1934, the 

tribal nation was under federal jurisdiction; and (2) whether the tribal nation’s 

jurisdictional status remained intact in 1934. 

While M–37029 provides some guidance for Interior’s evaluation of land-into-trust 

applications, it does not address the resulting disparate treatment of tribal nations, 

and did not stem the tide of post-Carcieri litigation. 

II. The Carcieri Decision Has Effectively Created Two Classes of Tribal Nations 

Effectively, the Carcieri decision has resulted in two classes of tribal nations in 

violation of P.L. 103–263.1 Those determined to have been under federal jurisdiction 

in 1934 and those determined not to have been under federal jurisdiction in 1934. 

Simply put, Congress’ intent—to provide the necessary tools for tribes to effectively 

self-govern—is not wholly realized by all tribal nations. Until Congress acts, there 
113 

2 ‘‘Carcieri: Bringing Certainty to Trust Land Acquisitions’’ testimony by former Assistant 

Secretary of Indian Affairs, Kevin Washburn, November 20, 2013. https://www.govinfo.gov/ 

content/pkg/CHRG-113shrg87133/html/CHRG-113shrg87133.htm. 3 Id. 

4To re-affirm an existing trust acquisition for the Match-E-Be-Nash-She-Wish Band of 

Pottawatomi Indians, in 2014 Congress enacted the ‘‘Gun Lake Trust Land Reaffirmation Act,’’ 

Pub. L. 113–179, 128 Stat. 1913. 5 ‘‘Year in Review,’’ Chico News and Review, December 18, 2018, https://issuu.com/ 

news_review/docs/c-2018-12-27. 

are some tribes that Interior is simply unable to acquire land for. These tribes’ 

lands, while owned in fee simple by a tribal nation, are unable to realize their full 

potential as economic drivers and residential homelands for tribal citizens. This is 

contrary to Congress’ intent and results in certain tribes having less opportunities 

with respect to developing a sufficient tax base, providing critical tribal services for 

their citizens, or protecting and preserving critical lands and natural resources. 

III. The Carcieri Decision Has Overburdened Governmental Resources 

The uptick in litigation elicited by the Carcieri decision has caused irrevocable 

damage to affected communities. Within three years of the decision in 2013, then 

Assistant Secretary of Indian Affairs, Kevin Washburn testified that the federal 

government was ‘‘up to [its] eyeballs in litigation on these matters.’’ 2 During that 

same hearing, entitled Carcieri: Bringing Certainty to Trust Land Acquisitions, 

Washburn also testified that: 

[Interior] is . . . forced to expend resources both before and during litigation to defend against such spurious claims—resources that are needed for 

social services, protection of natural resources and implementation of treaty 

rights. A straightforward Carcieri fix would be a tremendous economic 

boost to Indian country, at no cost to the Federal government.3

To Washburn’s point, presently tribal nations are forced to spend scarce resources 

through the following process to acquire homelands: (1) purchase or otherwise acquire land in fee; (2) commence the labor intensive and lengthy fee-into-trust administrative application process; (3) subsequently defend against Carcieri attacks in the 

district and appellate courts; and (4) occasionally—in the worst scenarios—tribal 

nations are forced to seek specific land acquisition legislation through Congress. 

Each of these steps comes with an enormous monetary and political cost to tribal 

nations. In addition to these costs, tribal communities bear the lost opportunity 

costs of foregoing expenses, both internally and at the federal level as noted in 

Washburn’s testimony above, on critical service needs such as education, public safety, housing, and other needs, in order to support the expense of a fee to trust 

application. 

At taxpayer’s expense, the federal government also pays the price at the executive, judicial, and congressional branches. At the executive level, Interior expended 

many workhours in developing and implementing M–37029’s two-step analysis, 

which now requires Interior to engage in a time-intensive analysis, sometimes taking years to complete, on whether a tribal nation was under federal jurisdiction in 

1934. Assuming a favorable decision is reached on behalf of the tribe, it often then 

gets challenged through litigation where Interior and the Department of Justice, in 

coordination with the affected tribal nation, then expend years defending the trust 

acquisition in fulfillment of the federal trust responsibility. Further, burdening 

Interior resources has created ancillary harm for tribal nations that were under 

federal jurisdiction in 1934 as it has slowed the land into-trust-process. 

Federal judicial resources are concurrently stretched as Carcieri cases crowd their 

dockets for years and mandate painstaking reviews of lengthy administrative 

records involving history and genealogy. This drain on the federal judiciary has led 

a D.C. Circuit judge to exclaim ‘‘[e]nough is enough!’’ in a case involving a 16-yearold land into trust acquisition that was aggravated by post-Carcieri litigation.4

Likewise, Congress’s resources have been expended both in the consideration of 

15 Carcieri fixes for over a decade and through tribe-specific bills which are the 

final resort for acquisition and re-affirmation of tribal homelands. 

Lastly, states and local governments have also exhausted tax-payer resources on 

unsuccessful Carcieri litigation. For example, in a 15-year long case that was exacerbated by post-Carcieri litigation, a rural California county with a 20% poverty rate 

expended $850,000 5 to oppose a Interior tribal trust acquisition. 
114 

6See, e.g., Oregon Secretary of State, Oregon Blue Book, https://sos.oregon.gov/blue-book/ 

Pages/national-tribes-intro.aspx (acknowledging that tribal governments are some of the ‘‘largest 

employers in their counties—generating employment for tax-paying employees, benefiting local 

communities and the entire state.’’); Northwest Portland Indian Health Board (Coeur D’Alene 

profile showcases a tribal ambulatory health care facility, on trust land, that ‘‘employs 170 staff 

and serves 6,000 native and non-native patients.’’) http://www.npaihb.org/member-tribes/coeurdalene-tribe/. 

IV. Tribal Homelands are Critical to the Health, Safety, and Welfare of Tribal 

Communities 

The IRA has enabled tribal nations to restore their homelands through the land 

into trust process and has been vital to tribal self-governance, including greater 

economic self-sufficiency. Through the IRA process, tribal nations are better able to 

deliver essential government services through the construction of schools, health 

facilities, Head Start centers, elder and veteran centers, housing, and justice facilities. Restoration of homelands has also enabled tribal nations to protect their cultures and traditions and aligns with Congress and the Administration’s goal of 

supporting tribal self-determination and self-sufficiency. 

Tribal trust acquisitions further aid tribal economic development by generating 

public and private partnerships that lead to increased jobs and services for tribal 

and non-tribal communities. As a result, in rural counties tribal nations are often 

the largest employers and health service providers for the entire community.6

V. Conclusion 

For a decade, NCAI has requested that Congress address the Carcieri problem by 

(1) restoring the Secretary’s authority under the IRA to take land into trust for all 

federally recognized tribal nations; and (2) reaffirming existing Indian trust lands. 

This common sense approach is wholly consistent with the IRA’s intent to rebuild 

tribal homelands, governments and economies and has the demonstrated potential 

to benefit all tribal nations and their surrounding communities. Equally, a clean fix 

would end the confusion and intergovernmental disputes that resulted from the 

Supreme Court’s ill-advised decision a decade ago in Carcieri. We thank you in advance for consideration of this testimony, and look forward to engaging on solutions 

to this critical issue in the 116th Congress. 
115 

NATIONAL INDIAN GAMING ASSOCIATION 

RESOLUTION 05–LAS–BOD–4–20–18 

TITLE: To Support H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act. 

WHEREAS, the National Indian Gaming Association (NIGA) is an intertribal 

association of 184 federally recognized Indian Tribes established to support Indian 

gaming and defend Indian sovereignty; and 

WHEREAS, Indian Tribes are sovereigns that pre-date the United States, with 

prior and treaty protected rights to self-government and to our Indian lands, and 

WHEREAS, the Constitution of the United States, through the Treaty, Commerce, 

and Apportionment Clauses and the 14th Amendment, recognizes the sovereign 

status of Indian Tribes as Native nations established prior to the United States; and 

WHEREAS, before the United States, Indian nations were independent sovereigns 

with complete authority over our lands and our citizens; and 

WHEREAS, on September 18, 2015 the Department of the Interior issued a 

decision to accept approximately 321 acres of land into trust for the Mashpee 

Wampanoag Tribe of Massachusetts as the Tribe’s initial reservation, and within 

the Tribe’s historical territory; and 

WHEREAS, the Department’s decision has since been subject to challenge, thereby 

threatening the Tribe’s newly established trust lands, its ability to acquire lost 

homelands, and more broadly, its people and its sovereignty; and 

WHEREAS, bipartisan legislation, the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act (H.R. 5244 and S. 2628) has been introduced in Congress, which 

reaffirms the Department’s trust acquisition for the Mashpee Tribe. 

NOW THEREFORE BE IT RESOLVED, NIGA hereby calls on Congress to enact 

H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe Reservation Reaffirmation 

Act; and 

BE IT FURTHER RESOLVED that this resolution shall be the policy of NIGA 

until it is withdrawn or modified by subsequent resolution. 

CERTIFICATION 

The foregoing resolution was adopted by the Board of Directors at a meeting of the 

National Indian Gaming Association, held at the Westgate Las Vegas Resort & 

Casino, 3000 Paradise Rd, on April 20, 2018, Las Vegas, NV, with a quorum 

present. 

Ernest L. Stevens, Jr., Chairman Paulette Jordan, Secretary 
116 

NATIVE AMERICAN RIGHTS FUND, 

BOULDER, COLORADO

May 11, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

The Native American Rights Fund respectfully urges the Senate Indian Affairs 

Committee, and the House Natural Resources Committee and its Subcommittee on 

Indian and Alaska Native Affairs, to do everything possible to ensure swift enactment of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 

and S. 2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe’s reservation—which was established with the 

strong support of surrounding local governments—is threatened by litigation 

brought by a NIMBY group based on technical legal issues. 

We urge Congress to use its authority to deal with Indian Tribes to ensure that 

the Mashpee Tribe is not forever rendered perpetually landless by enacting the 

Mashpee Wampanoag Tribe Reservation Reaffirmation Act. 

Sincerely, 

JOHN E. ECHOHAWK, 

Executive Director. 
117 

July 8, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244/S. 2628) 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

We, the undersigned, request your support for the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act (H.R. 5244 and S. 2628) and ask that you act swiftly 

to move this bill through the legislative process in your respective committees in 

order to ensure its passage in the House and Senate. 

The Mashpee Indian Tribe, a federally recognized tribe with a history, culture and 

government that pre-dates the founding of the United States—the Tribe that helped 

the Pilgrims—eventually lost all of its historical lands because of the federal government’s failure to protect those lands from encroachment. In 2015, with 

overwhelming local support, the Department of the Interior finally rectified this historical injustice and established Mashpee’s first reservation. The status of 

Mashpee’s reservation is now threatened by technical legal issues. This could result 

in the disestablishment of Mashpee’s reservation and could return the Tribe to 

landlessness. 

The Mashpee Wampanoag Tribe Reservation Reaffirmation Act reaffirms the 

status of the Mashpee Reservation and will allow the Tribe to continue to provide 

the cultural, economic, and public services to its members that are the essential ingredients of its self-determination as a Tribe. Passage of the legislation also will 

bring thousands of jobs and millions of dollars of related infrastructure and community development to Taunton and surrounding communities, as part of the Tribe’s 

economic development efforts. 

We respectfully request that Congress enact the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act to ensure that the Mashpee Reservation is protected 

and that the Tribe is not made landless. Thank you for your consideration of this 

request. 

Sincerely, 

Signed by 185 Residents of the New England Area. 
118 

NEZ PERCE TRIBAL EXECUTIVE COMMITTEE, 

LAPWAI, IDAHO

November 6, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244/S. 2628) 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

The Nez Perce Tribe requests your support of the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act (H.R. 5244 and S. 2628) and asks that you act swiftly 

to move this bill through the legislative process in your respective committees in 

order to ensure its passage in the House and Senate. 

In 2015, pursuant to the Indian Reorganization Act and with strong support from 

local governments and the state of Massachusetts, the Department of the Interior 

(Department) took into trust lands located within the Mashpee Wampanoag Tribe’s 

(Mashpee’s) traditional homeland and proclaimed those lands as the Mashpee 

Reservation. Unfortunately, despite strong support of the surrounding community, 

the existence of the Reservation is threatened by litigation based on technical legal 

issues initiated by a small group of local residents. In May 2017, the Department 

withdrew from the litigation and is no longer defending the status of the Mashpee 

Reservation. 

On September 7, 2018, the Department issued a decision refusing to reaffirm its 

own authority to confirm the status of the Mashpee Reservation opening the door 

for the Reservation to be taken out of trust and disestablished. 

As you know, land is fundamental to tribal self-determination—it provides the 

means for tribes to protect their cultures and to engage in desperately needed 

economic development. The Mashpee Wampanoag Tribe Reservation Reaffirmation 

Act confirms the Mashpee Reservation’s status and allows the Tribe to continue providing cultural, economic, and public services to its members that are the essential 

ingredients of its self-determination as a Tribe. 

The Nez Perce Tribe respectfully requests that Congress enact the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act to ensure that the Mashpee 

Reservation is protected and that the Tribe is not made landless. Thank you for 

your consideration of this request. 

Sincerely, 

SHANNON F. WHEELER, 

Chairman. 
119 

ONEIDA NATION,

ONEIDA BUSINESS COMMITTEE, 

ONEIDA, WI 

June 8, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

I am writing on behalf of my Tribe to respectfully request that you take all 

necessary action to ensure that the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as soon as possible. This is 

an urgent matter, as the Mashpee Tribe’s reservation is in danger of being taken 

out of trust. 

This threat to the Mashpee Tribe’s federally protected lands, established under 

the authority of the Indian Reorganization Act, is the result of litigation brought 

by a small group of individuals, challenging the Tribe’s reservation on technical 

legal grounds. This would result in the Mashpee Tribe becoming perpetually landless. Congress must exercise its plenary authority to ensure that the Mashpee Tribe 

and its reservation land is protected. The Mashpee Tribe, like all other federally recognized tribes, should be entitled to a federally protected reservation where it can 

exercise its sovereignty, protect its culture, and engage in self-determination. Please 

enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. 

Sincerely, 

TEHASSI HILL, 

Chairman. 
120 

OTOE MISSOURIA TRIBE OF INDIANS, 

RED ROCK, OK 

June 5, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

I am writing on behalf of my Tribe to respectfully request that you take all 

necessary action to ensure that the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as soon as possible. This is 

an urgent matter, as the Mashpee Tribe’s reservation is in danger of being taken 

out of trust, despite strong local government support for its creation. 

This threat to the Mashpee Tribe’s federally protected lands, established under 

the authority of the Indian Reorganization Act, is the result of litigation brought 

by a small group of individuals, challenging the Tribe’s reservation on technical 

legal grounds. This would be the first time in modern history that a reservation is 

disestablished, and would result in the Mashpee Tribe becoming perpetually landless. Congress must exercise its plenary authority to ensure that the Mashpee Tribe 

and its reservation land is protected. The Mashpee Tribe, like all other federally 

recognized tribes, should be entitled to a federally protected reservation where it 

can exercise its sovereignty, protect its culture, and engage in self-determination. 

Please enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. 

Sincerely, 

JOHN SHOTTON, 

Tribal Chairman. 
121 

1Public Law No. 95–375, 97 Stat. 712 (1978). 

2Public Law No. 103–263, 108 Stat. 707 (1994). 

PASCUA YAQUI TRIBE,

OFFICE OF THE CHAIRMAN, 

TUCSON, ARIZONA

May 1, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of the Pascua Yaqui Tribe, we respectfully urge that the Senate Indian 

Affairs Committee, and the House Natural Resources Committee and its 

Subcommittee on Indian and Alaska Native Affairs, do everything possible to ensure 

swift enactment of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

(H.R. 5244 and S. 2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its 

culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe is threatened by litigation challenging the 

status of its reservation based on technical legal issues. 

Pascua Yaqui was restored to federal recognition in 1978.1 In 1991, we faced a 

crisis similar to the one Mashpee faces now. In the process of reviewing amendments to our constitution, the Department of the Interior purported to determine 

that Pascua Yaqui was a ‘‘created’’ tribe rather than an ‘‘historic’’ tribe for the purposes of the Indian Reorganization Act of 1934 (IRA), and as a result Interior 

asserted that we did not have the inherent authority to regulate law and order on 

our reservation. Congress did the right thing to ensure that Pascua Yaqui would 

be treated fairly when in 1994 Congress passed an amendment to the IRA that 

clarified that all federally recognized tribes must be treated equally under the IRA,2

thereby putting an end to the Department’s practice of creating different classifications of federally recognized tribes. As a federally recognized tribe, Mashpee must 

also be treated equally under the IRA with all other federally recognized tribes. 

We urge Congress to enact the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act will ensure that the Mashpee Tribe receives equal treatment 

under the IRA and by so doing, will protect the Tribe from being rendered perpetually landless. Enactment of the legislation is consistent with the federal government’s trust responsibility toward Mashpee, and we urge you to do whatever you 

can to ensure that the proposed legislation becomes law. 

Sincerely, 

ROBERT VALENCIA, 

Chairman. 
122 

PRAIRIE ISLAND INDIAN COMMUNITY, 

WELCH, MN 

April 16, 2019 

Hon. RAUL GRIJALVA, 

Hon. ROB BISHOP, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. RUBEN GALLEGO, 

Hon. PAUL COOK, 

House Subcommittee on Indigenous Peoples of the United States, 

Washington, DC 20515. 

Re: The Prairie Island Indian Community Urges Passage of H.R. 312, the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Grijalva, Ranking Member Bishop, Chairman Gallego, and 

Ranking Member Cook: 

On behalf of the Prairie Island Indian Community, a federally recognized Tribe 

located on the banks of the Mississippi River in Welch, Minnesota, I write to express our concerns and to request your unequivocal support for swift passage of the 

Mashpee Wampanoag Reservation Reaffirmation Act. We believe that the establishment of the Mashpee Wampanoag Reservation was very long overdue and that this 

legislation is needed to protect their Reservation as well as the Tribal Sovereignty 

of the Tribal Nations in the United States of America. This bipartisan bill is broadly 

supported in Indian Country and is urgently needed in order to ensure that the 

Mashpee Reservation, located within the Mashpee Tribe’s traditional homelands, is 

not disestablished due to a technicality. 

The Mashpee Reservation was established in accordance with the Indian 

Reorganization Act and with the strong support of the State and the local community. However, this Reservation is now being threatened by litigation that could 

result in the Tribe’s land being taken out of trust—something that the federal government has not allowed to happen since the Termination Era in the 1950’s. 

Like the Mashapee Wampanoag, the overall goal of the Prairie Island Indian 

Community is to protect its members and to support the long-term health and selfsufficiency of the Tribe in the face of overwhelming odds. In 1938, Lock and Dam 

No. 3 was placed in operation by the Army Corps of Engineers on the Upper 

Mississippi River, less than three miles downstream from the Prairie Island 

Reservation. It resulted in a permanent and unauthorized taking of our Reservation 

land. Lock and Dam No. 3 also regularly overflows and as a result severe flooding 

of the Reservation takes place seasonally. 

In 1973, without consultation, the Prairie Island Nuclear Generating Plant 

(PINGP) was then placed a mere 600 yards from our land. Currently, forty-four dry 

casks of spent nuclear fuel are also stored in close proximity to Tribal homes, our 

church, our learning center, the Tribe’s community center and Tribal businesses. No 

other human beings in this country live closer to nuclear power plant and spentfuel storage. The Nuclear Regulatory Commission (NRC) has licensed the storage 

of an additional fifty-four dry casks of spent nuclear fuel at the plant by 2034. Our 

community is located within the Plume Exposure Pathway Emergency Planning 

Zone for the nuclear plant, an area with a higher risk of exposure or evacuation in 

the event of an accident. 

Finally to further complicate the situation, there is only one reliable road leading 

on and off of our Reservation, and this road is often blocked by railroad traffic 

carrying a variety of freight, including highly volatile Bakken crude oil. 

Because of the circumstances we face, we must look elsewhere for safe land. The 

Mashpee Wampanoag decision causes great concern to our community as it conveys 

this administration’s view on fee-to-trust transfers for Native American Tribes that 

desperately need it are not a priority. 

We believe that the decision made by the Department of Interior severely affects 

the Mashpee Wampanoag’s Tribal Sovereignty and restricts their ability for proper 

self-governance. Their ability for further economic development, which the Tribe 

relies on to fund many functions of their government, will without a doubt be affected and therefore the many social service programs the Tribe provides to its 

citizens will suffer. As was clear from the Mashpee Tribe’s testimony before the 
123 

House Natural Resources Committee on April 3rd, 2019, the quality of life for the 

Tribe and its citizens has been significantly affected. The uncertain status of the 

Reservation has caused great harm to programs such as, elder services and addiction treatment services, and has been forced to lay off much of its Tribal government work force. For this reason we join so many other voices from Indian Country 

and around the United States to respectfully urge that Congress fulfill its trust responsibility to the Mashpee Tribe by enacting the Mashpee Wampanoag Reservation 

Reaffirmation Act as soon as possible. 

The Prairie Island Indian Community would like to thank you for the excellent 

work that you do, and are pleased with your interest in helping, not only the 

Mashpee Wampanoag Tribe, but Tribal Nations across the country. If you have any 

questions, please do not hesitate to contact me directly, or have your staff contact 

our Government Relations Specialist, Cody Whitebear, at telephone number XXX– 

XXX–XXXX. 

Sincerely, 

SHELLEY BUCK, 

President. 

PYRAMID LAKE PAIUTE TRIBE, 

NIXON, NEVADA

June 5, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of the Pyramid Lake Paiute Tribe, we respectfully urge that the Senate 

Indian Affairs Committee, and the House Natural Resources Committee and its 

Subcommittee on Indian and Alaska Native Affairs, do everything possible to ensure 

swift enactment of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

(H.R. 5244 and S. 2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe’s reservation—which was established with the 

strong support of surrounding local governments—is threatened by litigation 

brought by a NIMBY group based on technical legal issues. We urge Congress to 

use its plenary authority to ensure that the Mashpee Tribe is not forever rendered 

perpetually landless by enacting the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act. 

Sincerely, 

VINTON HAWLEY, 

National Indian Health Board, Chairman 

HHS, Secretary’s Tribal Advisory Committee, Member 
124 

ROCKY MOUNTAIN TRIBAL LEADERS COUNCIL 

RESOLUTION #20-June-2018-2 

A RESOLUTION TO SUPPORT H.R. 5244 AND S. 2628, THE MASHPEE 

WAMPANOAG TRIBE RESERVATION REAFFIRMATION ACT 

WHEREAS, the Rocky Mountain Tribal Leaders Council (TLC) has been created for 

the express purpose of providing its member Tribes with a unified voice and a collective organization to address issues of concern to the Tribes and Indian people; and 

WHEREAS, the Board of Directors of the Tribal Leaders Council consists of duly 

elected Tribal Chairs, Presidents and Council Members who are fully authorized to 

represent their respective Tribes; and 

WHEREAS, as a manifestation of their solemn duty, the Tribal governments 

actively engage in policy formation on any matters that affect the Tribes and 

reservations; and 

WHEREAS, the governments of the various Native American nations have 

exercised full sovereign authority since time immemorial, including over their separate territories, lands, sacred grounds, and natural resources, including clean and 

fresh water; and 

WHEREAS, Indian Tribes are sovereigns that pre-date the United States, with 

prior and treaty protected rights to self-government and to our Indian lands; and 

WHEREAS, the Constitution of the United States, through the Treaty, Commerce, 

and Apportionment Clauses and the 14th Amendment, recognizes the sovereign 

status of Indian Tribes as Native nations established prior to the United States; and 

WHEREAS, before the United States, Native nations were independent sovereigns 

with complete authority over our lands and our citizens; and 

WHEREAS, on September 18, 2015 the Department of the Interior issued a 

decision to accept approximately 321 acres of land into trust for the Mashpee 

Wampanoag Tribe of Massachusetts as the Tribe’s initial reservation, and within 

the Tribe’s historical territory; and 

WHEREAS, the Department’s decision has since been subject to challenge, thereby 

threatening the Tribe’s only trust land and more broadly, its people and its 

sovereignty; and 

WHEREAS, bipartisan legislation, the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act (H.R. 5244 and S. 2628), has been introduced in Congress to reaffirm the Department’s trust acquisition for the Mashpee Tribe and to prevent the 

Tribe from once again being made landless. 

NOW THEREFORE BE IT RESOLVED, that the Rocky Mountain Tribal Leadership Council hereby calls on Congress to enact H.R. 5244 and S. 2628, the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act. 

CERTIFICATION 

We, the undersigned, as the Chair and the Secretary of the Tribal Leaders Council, 

do hereby certify that the foregoing Resolution was duly presented and approved 

unanimously at an official Board Meeting of the Rocky Mountain Tribal Leaders 

Council, which was held on the 7th day of June in Billings, Montana with 9 member 

Tribes present to constitute a Quorum. 

Alvin Not Afraid Jr., Gerald Gray, 

Chairman—Tribal Leaders Council Secretary—Tribal Leaders Council 
125 

SAN CARLOS APACHE TRIBE, 

SAN CARLOS, ARIZONA

May 9, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of the 16,500 members of the San Carlos Apache Tribe (the ‘‘Tribe’’), 

I respectfully urge that the Senate Indian Affairs Committee, and the House 

Natural Resources Committee and its Subcommittee on Indian and Alaska Native 

Affairs, do everything possible to ensure swift enactment of the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Wampanoag Reservation—which was established 

with the strong support of surrounding local governments—is threatened by 

litigation brought by a group of individual citizens opposed to tribal sovereignty proclaims that the Mashpee Wampanoag reservation should not be in their back yard 

based on technical legal issues. 

Reservations form a core component of tribal sovereignty, cultural identity and 

the foundation of a tribe’s economy. All tribes have an interest in protecting our 

reservations. All tribes have an interest in reacquiring our aboriginal territories, our 

ancestral homelands. A threat to one reservation is a threat to all reservations. Any 

threat to the restoration of a tribe’s land base, is a threat to all tribes. 

As our partner in the preservation of tribal reservations and aboriginal territories, 

the federal government has a solemn duty borne out of its trust responsibility to 

all tribes to prioritize the restoration of our tribal land bases. However, this NIMBY 

action threatens the ability of the Mashpee Wampanoag Tribe to rebuild its economy and provide essential government services to its members—the fundamental 

goal of the land-into-trust process. The Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act simply provides legal certainty to the status of the Tribe’s trust 

lands, allowing their efforts to move forward. 

We urge Congress to use its plenary authority to ensure that the Mashpee Tribe 

is not forever rendered perpetually landless by enacting the Mashpee Wampanoag 

Tribe Reservation Reaffirmation Act. 

As we say in our Apache language, Ahi’yi’e ́, thank you for your support in this 

critically important matter. 

Sincerely, 

TERRY RAMBLER, 

Chairman. 
126 

SHINNECOCK INDIAN NATION,

SHINNECOCK INDIAN TERRITORY, 

SOUTHAMPTON, NEW YORK

July 13, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

I am writing on behalf of my tribe, the Shinnecock Indian Nation, to respectfully 

request that you take all necessary action to ensure that the Mashpee Wampanoag 

Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as soon as 

possible. This is an urgent matter, as the Mashpee Tribe’s reservation is in danger 

of being taken out of trust, despite strong local government support for its creation. 

This threat to the Mashpee Tribe’s federally protected lands, established under 

the authority of the Indian Reorganization Act, is the result of litigation brought 

by a small group of individuals, challenging the Tribe’s reservation on technical 

legal grounds. This would be the first time in modern history that a reservation is 

disestablished, and would result in the Mashpee Tribe becoming perpetually landless. Congress must exercise its plenary authority to ensure that the Mashpee Tribe 

and its reservation land is protected. 

As another Indian Nation from the Northeast, we stand united with the Mashpee 

Wampanoag in the fight to protect their historic lands. As you are aware, tribes in 

the Northeast endured the first contact with settlers and have the longest recorded 

history of all Indian Nations. As such, we personally recognize the immense tribulations the Mashpee Wampanoag have faced and the importance for its reservation 

lands to remain protected. 

The Mashpee Tribe, like all other federally recognized tribes, should be entitled 

to a federally protected reservation where it can exercise its sovereignty, protect its 

culture, and engage in self- determination. Please enact the Mashpee Wampanoag 

Tribe Reservation Reaffirmation Act. 

Respectfully, 

Charles K. Smith II, Donald Williams Jr., 

Chairman, Council of Trustees Sachem, Council of Trustees 
127 

SPIRIT LAKE TRIBE, 

FORT TOTTEN, ND 

June 7, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

I am writing on behalf of my Tribe to respectfully request that you take all 

necessary action to ensure that the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as soon as possible. This is 

an urgent matter, as the Mashpee Tribe’s reservation is in danger of being taken 

out of trust, despite strong local government support for its creation. 

This threat to the Mashpee Tribe’s federally protected lands, established under 

the authority of the Indian Reorganization Act, is the result of litigation brought 

by a small group of individuals, challenging the Tribe’s reservation on technical 

legal grounds. This would be the first time in modern history that a reservation is 

disestablished, and would result in the Mashpee Tribe becoming perpetually landless. Congress must exercise its plenary authority to ensure that the Mashpee Tribe 

and its reservation land is protected. 

The Mashpee Tribe, like all other federally recognized tribes, should be entitled 

to a federally protected reservation where it can exercise its sovereignty, protect its 

culture, and engage in self-determination. Please enact the Mashpee Wampanoag 

Tribe Reservation Reaffirmation Act. 

Sincerely, 

DOUGLAS YANKTON, 

Vice-Chairman. 
128 

ST. CROIX CHIPPEWA INDIANS OF WISCONSIN, 

WEBSTER, WI 

June 11, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: The St. Croix Tribe Supports the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of the St. Croix Tribe of Chippewa Indians of Wisconsin, I respectfully 

request that the Senate Indian Affairs Committee, and the House Natural 

Resources Committee and its Subcommittee on Indian and Alaska Native Affairs, 

do everything possible to ensure enactment of the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act (H.R. 5244 and S. 2628). 

The Mashpee Tribe is the only federally recognized tribe in the Northeast that 

does not have a land claim settlement. As a result, unlike other tribes with such 

settlements, Mashpee had no alternative but to rely on the general land acquisition 

authority provided in the Indian Reorganization Act (IRA) to establish a reservation. 

The Mashpee Tribe’s reservation is located within Mashpee’s traditional homelands, 

and was established in accordance with the IRA and with the strong support of surrounding local governments. Unfortunately, the existence of this reservation is now 

threatened by litigation based on technical legal issues. These technical legal issues 

could lead to the disestablishment of Mashpee’s reservation—the first time an 

Indian reservation would be disestablished since the Termination Era. 

A land base is a foundational component of tribal sovereignty and provides the 

space for tribes to maintain our cultural identities and build our economies. The 

Mashpee Wampanoag Tribe Reservation Reaffirmation Act reaffirms that status of 

the Tribe’s reservation so that the Tribe can continue to provide vital services to 

its members, protect its culture, and expand its economy to provide for future 

generations. 

We urge Congress to employ its plenary authority to enact the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act to ensure that the Mashpee Tribe 

is not forever rendered continually landless. 

Sincerely, 

LEWIS TAYLOR, 

Chairman, Tribal Council. 
129 

STOCKBRIDGE-MUNSEE COMMUNITY,

BAND OF MOHICAN INDIANS, 

BOWLER, WI 

June 5, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

I am writing on behalf of my Tribe to respectfully request that you take all 

necessary action to ensure that the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as soon as possible. This is 

an urgent matter, as the Mashpee Tribe’s reservation is in danger of being taken 

out of trust, despite strong local government support for its creation. 

This threat to the Mashpee Tribe’s federally protected lands, established under 

the authority of the Indian Reorganization Act, is the result of litigation brought 

by a small group of individuals, challenging the Tribe’s reservation on technical 

legal grounds. This would be the first time in modern history that a reservation is 

disestablished and would result in the Mashpee Tribe becoming perpetually landless. Congress must exercise its plenary authority to ensure that the Mashpee Tribe 

and its reservation land is protected. 

The Mashpee Tribe, like all other federally recognized tribes, should be entitled 

to a federally protected reservation where it can exercise its sovereignty, protect its 

culture, and engage in self-determination. Please enact the Mashpee Wampanoag 

Tribe Reservation Reaffirmation Act. 

Sincerely, 

SHANNON HOLSEY, 

President. 
130 

THE SUQUAMISH TRIBE 

PORT MADISON INDIAN RESERVATION 

RESOLUTION 2018–107 

WHEREAS, the Suquamish Tribal Council is the duly constituted governing body 

of the Port Madison Indian Reservation by authority of the Constitution and Bylaws 

for the Suquamish Tribe of the Port Madison Indian Reservation, Washington, as 

approved on July 2, 1965, by the Under-Secretary of the United States Department 

of the Interior; 

WHEREAS, under Article III of the Constitution and Bylaws of the Suquamish 

Tribe, the Suquamish Tribal Council is charged with the general governance of the 

Port Madison Indian Reservation and to this end, has the power, right, and authority to take all actions necessary to carry such duties into effect, including protecting 

the health, security, and general welfare of the Tribe; 

WHEREAS, the Mashpee Indian Tribe, a federally recognized Tribe with a history, 

culture, and government that predates the founding of the United States—the Tribe 

that helped the Pilgrims—eventually lost all of its historical lands because of the 

federal government’s failure to protect those lands from encroachment; 

WHEREAS, in 2015, the Department of the Interior (‘‘Interior’’) finally rectified this 

historical injustice when it took into trust certain land within the Tribe’s historical 

territory in Massachusetts and made it the Tribe’s reservation, with overwhelming 

local support, pursuant to the Indian Reorganization Act (‘‘IRA’’); 

WHEREAS, a suit was filed in federal court to challenge Interior’s action, and the 

court rejected Interior’s original legal theory, which was based on the second definition of ‘‘Indian’’ in the IRA, calling into question the legal status of the Tribe’s 

reservation; however, the court further allowed the Tribe to petition Interior under 

a different legal theory, based on the first definition of ‘‘Indian’’ in the IRA; 

WHEREAS, Interior originally sought to defend its decision and the Tribe’s 

reservation when it filed an appeal in December 2016, but in May 2017 the Department of Justice withdrew from the litigation and is no longer defending the status 

of the Tribe’s reservation; 

WHEREAS, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 

5244 and S. 2628) will reaffirm the status of the Tribe’s reservation and make clear 

that the Tribe is entitled to be treated the same way under the IRA as other 

federally recognized Tribes; and 

WHEREAS, the Mashpee Wampanoag Tribe is not asking for new or special rights, 

but rather is asking Congress, through this Act, to exercise its plenary authority 

to ensure that the Tribe will be treated equally with other federally recognized 

Tribes under the IRA, thereby protecting the Tribe’s existing reservation so that it 

can continue to provide services to its members, protect its culture, and provide 

employment and housing for its members; 

NOW THEREFORE BE IT RESOLVED, that the Suquamish Tribal Council 

hereby declares its support for the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act, joining with the Mashpee Wampanoag Tribe in urging Congress 

to pass the Act. 

CERTIFICATION 

The foregoing resolution was duly adopted on June 25, 2018 at a regular meeting 

of the Suquamish Tribal Council at which a quorum was present, by a vote of 6 for 

and 0 against, with 0 abstention(s), in accordance and pursuant to the authority 

vested in it by the Constitution and Bylaws of the Suquamish Tribe. 

By: Attested to by: 

Leonard Forsman, Chairman Nigel Lawrence, Secretary 
131 

SYCUAN TRIBE, 

EL CAJON, CA 

June 6, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of my Tribe, we respectfully urge that the Senate Indian Affairs 

Committee, and the House Natural Resources Committee and its Subcommittee on 

Indian and Alaska Native Affairs, do everything possible to ensure swift enactment 

of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 

2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe’s reservation—which was established with the 

strong support of surrounding local governments—is threatened by litigation 

brought by a NIMBY group based on technical legal issues. We urge Congress to 

use its plenary authority to ensure that the Mashpee Tribe is not forever rendered 

perpetually landless by enacting the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act. 

Sincerely, 

CODY J. MARTINEZ, 

Chairman. 
132 

RESOLUTION OF THE TOHONO O’ODHAM LEGISLATIVE COUNCIL 

(Supporting Mashpee Wampanoag Tribe Reservation Reaffirmation Act) 

RESOLUTION NO. 18–145 

WHEREAS, the Constitution of the Tohono O’odham Nation vests the Legislative 

Council with the authority to ‘‘consult, negotiate and conclude agreements and 

contracts on behalf of the Tohono O’odham Nation with Federal, State and local governments or other Indian tribes or their departments, agencies, or political 

subdivisions . . .’’ (Constitution, Article VI, Section 1(f); and 

WHEREAS, as a direct result of federal policies designed to break up tribal governments and Indian land bases and relocate tribes to economically unproductive 

reservation lands, Indian land holdings in the United States fell from 138 million 

acres in 1887 to 48 million acres in 1934, a loss that crippled tribes’ ability to provide employment and economic opportunities; and 

WHEREAS, these nineteenth century policies were repudiated and replaced by the 

land-into-trust acquisition provisions of the Indian Reorganization Act of 1934 (25 

U.S.C. § 465) and other land acquisition authorities which authorize the Secretary 

of the Interior to acquire lands in trust for the benefit of Indian tribes, thereby providing for the acquisition of land bases that are essential to meet the needs of tribal 

governments, including economic development; and 

WHEREAS, despite the Department of the Interior’s ongoing trust obligation, after 

acquiring land in trust for the Mashpee Wampanoag Tribe in 2015, the United 

States has withdrawn from a suit defending its trust acquisition and, as a direct 

result, the Tribe is now facing the loss of its reservation lands; and 

WHEREAS, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act, introduced as H.R. 5244 and companion bill S. 2628, will protect the trust status of 

Mashpee Wampanoag Tribe’s reservation; and 

WHEREAS, ‘‘[tlhe Nation’s written comments to federal, state, and local governments on laws and rules proposed by those entities must be approved by the Tohono 

O’odham Legislative Council.’’ (1 Tohono O’odham Code Chapter 3, Section 3102); 

and 

WHEREAS, the Tohono O’odham Nation strongly supports the protection of all 

tribal trust lands, and the Agricultural and Natural Resources Committee 

recommends that the Legislative Council support the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act. 

NOW THEREFORE BE IT RESOLVED that the Tohono O’odham Legislative 

Council calls upon the United States Congress to enact the Mashpee Wampanoag 

Tribe Reservation Reaffirmation Act and any subsequent federal legislation 

protecting the trust status of Mashpee Wampanoag Tribe’s reservation. 

BE IT FINALLY RESOLVED that the Tohono O’odham Legislative Council 

authorizes and directs the Chairman of the Nation and appropriate Legislative 

Council delegations to advocate for the enactment of the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act. 

The foregoing Resolution was passed by the Tohono O’odham Legislative Council on 

the 3rd day of May, 2018 at a meeting at which a quorum was present with a vote 

of 2,875.6 FOR; -0- AGAINST; -0- NOT VOTING; and 209.0[06] ABSENT, pursuant 

to the powers vested in the Council by Article VI, Section 1(f); and Article VII, 

Section 2(c) and 2(d) of the Constitution of the Tohono O’odham Nation, adopted by 

the Tohono O’odham Nation on January 18, l986; and approved by the Acting 

Deputy Assistant Secretary—Indian Affairs (Operations) on March 6, 1986, 

pursuant to Section 16 of the Act of June 18, 1934 (48 Stat. 984). 

ATTEST: TOHONO O’ODHAM LEG. 

COUNCIL 

Evonne Wilson, Leg. Secretary Timothy Joaquin, Leg. Chairman 

3rd day of May, 2018 3rd day of May, 2018 

Said Resolution was submitted for approval to the office of the Chairman of the 

Tohono O’odham Nation on the 3rd day of May, 2018 at 1:48 o’clock, p.m., pursuant 

to the provisions of Section 5 of Article VII of the Constitution and will become 

effective upon his approval or upon his failure to either approve or disapprove it 

within 48 hours of submittal. 

[X] APPROVED on the 4th day of May, 2018 at 1:30 o’clock, p.m. 

TOHONO O’ODHAM NATION 

Edward D. Manuel, Chairman 
133 

TONTO APACHE TRIBE,

TONTO APACHE RESERVATION #30, 

PAYSON, ARIZONA

June 4, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of my Tribe, we respectfully urge that the Senate Indian Affairs 

Committee, and the House Natural Resources Committee and its Subcommittee on 

Indian and Alaska Native Affairs, do everything possible to ensure swift enactment 

of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 

2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe’s reservation—which was established with the 

strong support of surrounding local governments—is threatened by litigation 

brought by a group based on technical legal issues. We urge Congress to use its 

plenary authority to ensure that the Mashpee Tribe is not forever rendered perpetually landless by enacting the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act. 

Sincerely, 

VICE CHAIRMAN, 

Tonto Apache Tribe. 
134 

1 USET SPF member Tribal Nations include: Alabama-Coushatta Tribe of Texas (TX), 

Aroostook Band of Micmac Indians (ME), Catawba Indian Nation (SC), Cayuga Nation (NY), 

Chitimacha Tribe of Louisiana (LA), Coushatta Tribe of Louisiana (LA), Eastern Band of 

Cherokee Indians (NC), Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw Indians 

(LA), Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag Tribe (MA), Miccosukee 

Tribe of Indians of Florida (FL), Mississippi Band of Choctaw Indians (MS), Mohegan Tribe of 

Indians of Connecticut (CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY), 

Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township (ME), Passamaquoddy 

Tribe at Pleasant Point (ME), Penobscot Indian Nation (ME), Poarch Band of Creek Indians 

(AL), Saint Regis Mohawk Tribe (NY), Seminole Tribe of Florida (FL), Seneca Nation of Indians 

(NY), Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana (LA), and the 

Wampanoag Tribe of Gay Head (Aquinnah) (MA). 

USET—UNITED SOUTH AND EASTERN TRIBES, INC., 

WASHINGTON, DC 

April 27, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

We write on behalf of United South and Eastern Tribes Sovereignty Protection 

Fund (USET SPF) to respectfully urge the Senate Indian Affairs Committee, and 

the House Natural Resources Committee and its Subcommittee on Indian and 

Alaska Native Affairs, to ensure swift enactment of the Mashpee Wampanoag Tribe 

Reservation Reaffirmation Act (H.R. 5244 and S. 2628). 

USET SPF is an intertribal organization comprised of twenty-seven federally 

recognized Tribal Nations, ranging from Maine to Florida to Texas.1 USET SPF is 

dedicated to enhancing the development of federally recognized Tribal Nations, to 

improving the capabilities of Tribal governments, and assisting USET SPF Member 

Tribal Nations in dealing effectively with public policy issues and in serving the 

broad needs of Indian people. 

The Tribal land base is a core aspect of Tribal sovereignty, cultural identity, and 

represents the foundation of our Tribal economies. USET SPF Tribal Nations, 

including the Mashpee Wampanoag Tribe, continue to work to reacquire our homelands, which are a fundamental to our existence as sovereign governments and our 

ability to thrive as vibrant, healthy, self-sufficient communities. And as our partner 

in the trust relationship, it is incumbent upon the federal government to prioritize 

the restoration of our land bases. 

However, the Mashpee Wampanoag Tribe’s reservation—which was established 

with the strong support of surrounding local governments—is threatened by litigation brought by a group of individual citizens opposed to Tribal sovereignty. This 

jeopardizes the ability of the Mashpee Wampanoag Tribe to rebuild its economy and 

provide essential government services to its citizens, which are the fundamental 

goals of the land-into-trust process. The Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act simply provides legal certainty to the status of the Tribe’s trust 

land, allowing these efforts to proceed forward. 

As a federally recognized Tribal Nation, it is critical for the Mashpee Wampanoag 

Tribe to restore its homelands. We urge Congress to use its authority to ensure that 

the Mashpee Tribe is not forever rendered perpetually landless by enacting the 

Mashpee Wampanoag Tribe Reservation Reaffirmation Act. Should you have any 

questions or require further information, please contact Ms. Liz Malerba, USET SPF 

Director of Policy and Legislative Affairs, at (XXX) X–XXXX. 

Sincerely, 

Kirk Francis, Kitcki A. Carroll, 

President Executive Director 
135 

1 USET SPF member Tribal Nations include: Alabama-Coushatta Tribe of Texas (TX), 

Aroostook Band of Micmac Indians (ME), Catawba Indian Nation (SC), Cayuga Nation (NY), 

Chitimacha Tribe of Louisiana (LA), Coushatta Tribe of Louisiana (LA), Eastern Band of 

Cherokee Indians (NC), Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw Indians 

(LA), Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag Tribe (MA), Miccosukee 

Tribe of Indians of Florida (FL), Mississippi Band of Choctaw Indians (MS), Mohegan Tribe of 

Indians of Connecticut (CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY), 

Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township (ME), Passamaquoddy 

Tribe at Pleasant Point (ME), Penobscot Indian Nation (ME), Poarch Band of Creek Indians 

(AL), Saint Regis Mohawk Tribe (NY), Seminole Tribe of Florida (FL), Seneca Nation of Indians 

(NY), Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana (LA), and the 

Wampanoag Tribe of Gay Head (Aquinnah) (MA). 

TESTIMONY OF THE UNITED SOUTH AND EASTERN TRIBES 

SOVEREIGNTY PROTECTION FUND 

FOR THE RECORD OF THE HOUSE NATURAL RESOURCES SUBCOMMITTEE ON

INDIGENOUS PEOPLES OF THE UNITED STATES LEGISLATIVE HEARING ON, ‘‘H.R. 375, H.R. 312, AND THE RESPECT ACT’’ 

APRIL 17, 2019 

The United South and Eastern Tribes Sovereignty Protection Fund (USET SPF) 

is pleased to provide the House Natural Resources Subcommittee on Indigenous 

Peoples of the United States with the following testimony for the record of its legislative hearing on, ‘‘H.R. 375, H.R. 312, and the Requirements, Expectations, and 

Standard Procedures 3 for Executive Consultation with Tribes (RESPECT) Act.’’ 

USET SPF appreciates the Subcommittee’s willingness to begin its work in the 

116th Congress with two issues of great import to USET SPF and across Indian 

Country: the restoration of Tribal homelands and the strengthening of Tribal 

consultation requirements. 

USET SPF is a non-profit, inter-tribal organization representing 27 federally 

recognized Tribal Nations from Texas across to Florida and up to Maine.1 USET 

SPF is dedicated to enhancing the development of federally recognized Tribal 

Nations, to improving the capabilities of Tribal governments, and assisting USET 

SPF Member Tribal Nations in dealing effectively with public policy issues and in 

serving the broad needs of Indian people. This includes advocating for the full 

exercise of inherent Tribal sovereignty. 

Restoration of Tribal Homelands 

The Tribal Nations located in the eastern part of what is now the United States 

have a lengthier history when it comes to the systematic dispossession of our lands 

as a result of hundreds of years of federal (and before that, colonial) policies. In the 

wake of these policies, a majority of USET SPF Tribal Nations hold only a fraction 

of their homelands and some remain landless. 

In response to federal policies that stripped us of our land base, the Department 

of the Interior (DOI) has, for nearly 85 years, restored Tribal lands through trust 

acquisitions to enable Tribal Nations to build schools, health clinics, hospitals, housing, and provide other essential services to Tribal citizens. Over this period, DOI 

has approved trust acquisitions for approximately 5 million acres of former Tribal 

homelands, which represents only a small fraction of the more than 100 million 

acres lost through Federal policies of removal, allotment, and assimilation. 

USET SPF Tribal Nations continue to work to reacquire our homelands, which 

are fundamental to our existence as sovereign governments and our ability to thrive 

as vibrant, healthy, self-sufficient communities. And as our partner in the trust relationship, it is incumbent upon the federal government to prioritize the restoration 

of our land bases. The federal government’s objective in the trust responsibility and 

obligations to our Nations must be to support healthy and sustainable selfdetermining Tribal governments, which fundamentally includes the restoration of 

lands to all federally recognized Tribal Nations, as well as the legal defense of these 

land acquisitions. 

No Tribal Nation should remain landless. All Tribal Nations, whatever their 

historical circumstances, need and deserve a stable, sufficient land base—a 

homeland—to support robust Tribal self-government, cultural preservation and economic development. The federal government should ensure every Tribal Nation has 

the opportunity to restore its homelands, regardless of the concerns of other units 

of government, private citizens, or other interests. This is a necessary function of 

the U.S. government in delivering upon the trust responsibility and obligations to 

Tribal Nations. Regaining a land base is essential to the exercise of Tribal self- 
136 

government. When the federal government holds land in trust for a Tribal Nation, 

the Tribal Nation is able to exercise jurisdiction over the land, including over individuals’ actions and over taxation. This jurisdiction allows the Tribal Nation to protect its people and to generate economic growth, which in turn encourages the 

flourishing of the Tribal Nation’s cultural practices. Jurisdiction over territory is a 

bedrock principle of sovereignty, and Tribal Nations must exercise such jurisdiction 

in order to fully implement the inherent sovereignty they possess. Just as states exercise jurisdiction over their land, Tribal Nations must also exercise jurisdiction, 

thereby promoting government fairness and parity between state governments and 

Tribal Nation governments. 

While USET SPF member Tribal Nations ultimately seek full jurisdiction and 

management over our homelands without federal government interference and oversight, we recognize the critical importance of the restoration of our land bases 

through the land-into-trust process. We further recognize that the federal government has a trust responsibility and obligation to Tribal Nations in the restoration 

and management of trust lands. With this in mind, it is vital that the land-intotrust process be available to and applied equally to all federally recognized Tribal 

Nations. This parity is central to the federal government’s legal and moral 

obligations to all of Indian Country. 

The fundamentally incorrect 2009 decision in Carcieri v. Salazar has created a 

deeply inequitable 2-class system, in which some Tribal Nations have the ability to 

restore the homelands stolen from them and others do not. This 2-class system 

serves to deny these Tribal Nations a critical component of the trust relationship, 

vital aspects of the exercise of inherent sovereignty, and the opportunity to qualify 

for several government programs. To add insult to injury, in the years following the 

decision, the rhetoric surrounding the need to correct this grave injustice has been 

perverted by those who seek to undermine the acquisition of trust lands for Tribal 

Nations. This has led to widespread misunderstanding about the purpose and effects 

of a fix. 

As Congress (and other branches of the federal government) approaches the 

restoration of Tribal homelands, USET SPF continues to repeat that this basic correction is simply that. It returns us to the status quo prior to 2009—a rigorous 

process for the acquisition of trust land for ALL federally recognized Tribal Nations. 

This long overdue fix does not confer any additional benefits or supersede any existing law, nor is it about anything other than the rightful restoration of Tribal 

homelands. 

USET SPF continues to call for the immediate passage of a fix that contains the 

two features necessary to restore parity to the land-into-trust process: (1) a reaffirmation of the status of current trust lands; and (2) confirmation that the Secretary 

has authority to take land into trust for all federally recognized Tribal Nations. 

USET SPF extends its gratitude to Rep. Tom Cole for his continued introduction 

of bi-partisan legislation that would right this wrong. 

RESPECT Act 

Another essential aspect of the federal trust responsibility and obligations to 

Tribal Nations is the duty to consult on the development of federal policies and actions that have Tribal implications. This requirement is borne out of the sacred relationship between the federal government and Tribal Nations, as well as numerous 

treaties, court cases, laws, and executive actions. It is a recognition of our inherent 

sovereignty and self-determination. 

However, the duty to consult, despite existing policies and agreements, including 

Executive Order (E.O.) 13175, is not consistently undertaken or applied, nor is it 

codified in law. As a result, Tribal Nations continue to experience inconsistencies 

in consultation policies, the violation of consultation policies, and mere notification 

of federal action as opposed to a solicitation of input. Letters are not consultation. 

Teleconferences are not consultation. Providing the opportunity for Tribal Nations 

to offer guidance and then failing to honor that guidance is not consultation. 

Meaningful consultation is a minimal standard for evaluating efforts to engage 

Tribal Nations in decision-making, and in the context of high-stakes infrastructure 

projects, Tribal consent is required to fulfill the federal treaty and trust responsibilities. The determination of what level of consultation is required should come from 

Tribal Nations. Meaningful consultation requires that dialogue with Tribal partners 

occur with a goal of reaching consent. 

Indeed, the relationship between the United States and Tribal Nations began as 

one of mutual consent to treaty terms and other agreements, even if the Tribal 

Nations were under duress. That mutual consent principle should continue, though 

of course applied this time in an honorable fashion. In the short term, we must 

move beyond the requirement for Tribal consultation via Executive Order to a 
137 

strengthened model achieved via statute. In the long term, we must return to the 

achievement of Tribal Nation consent for federal action in recognition of sovereign 

equality. 

It is time that the U.S. work to reform the Tribal consultation process, as conducted by agencies across the federal government. USET SPF strongly supports the 

codification of consultation requirements for all federal agencies and departments. 

This is consistent with our efforts to modernize the federal trust relationship, 

including ensuring that Tribal Nations are full and equal participants in the shaping of federal Indian policy. 

With this in mind, USET SPF supports the spirit and intent of the discussion 

draft of the Requirements, Expectations, and Standard Procedures for Executive 

Consultation with Tribes (RESPECT) Act. We commend Chairman Grijalva for beginning an important dialogue on how to strengthen consultation requirements. 

USET SPF is especially pleased to see that the RESPECT Act would apply to all 

federal agencies and departments, including independent agencies, as each of these 

entities shares equally in the federal trust responsibility and obligations. 

We are also pleased that the Chairman has released the RESPECT Act as a discussion draft. We believe there are opportunities to further refine and strengthen 

this draft legislation, including addressing issues related to the achievement of 

Tribal Nation consent, as well as supporting inter-agency coordination and training, 

and the creation of an Indian desk at the Office of Management and Budget. In 

addition, we share some concern about the unintentionally narrow scope of the Act. 

We look forward to the opportunity to work with Chairman to sharpen the legislative language and ensure the RESPECT Act is appropriately comprehensive. 

UTE INDIAN TRIBE,

UTE TRIBAL BUSINESS COMMITTEE, 

FORT DUCHESNE, UTAH

June 12, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act 

Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and Vice 

Chairman Udall: 

On behalf of my Tribe, we respectfully urge that the Senate Indian Affairs 

Committee, and the House Natural Resources Committee and its Subcommittee on 

Indian and Alaska Native Affairs, do everything possible to ensure swift enactment 

of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 

2628). 

Every federally recognized tribe in the United States should be entitled to a 

federally-protected reservation where it can exercise its sovereignty, protect its culture, and benefit from the federal laws and programs that are tied to having 

reservation land. The Mashpee Tribe’s reservation—which was established with the 

strong support of surrounding local governments—is threatened by litigation 

brought by a NIMBY group based on technical legal issues. We urge Congress to 

use its plenary authority to ensure that the Mashpee Tribe is not forever rendered 

perpetually landless by enacting the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act. 

Sincerely, 

LUKE DUNCAN, 

Chairman. 
138 

THE WACCAMAW INDIAN PEOPLE, 

CONWAY, SC 

September 30, 2018 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Dear Congressman: 

I am writing in support of H.R. 5244. I know that you are the ranking member 

of the House Natural Recourses Committee and it is your participation with that 

committee that I believe is very key at this moment in time. I fear that your committee, surrendering the authority to reaffirm the Mashpee Wampanoag’s Tribal 

Reservation, will harm real people and a real culture, in the near future. Mashpee 

should not be forced to jump through hopes that no one else does. Indians already 

have to meet arbitrary standards that never apply to non-Indians. 

I realize that your job is a difficult one and that no matter which step you take, 

one side is happy, the other side disappointed. This issue needs to be raised above 

the ‘‘feels good today’’ status, to a level that will support this country and Native 

Culture, into the future generations. 

The Mashpee Wampanoag are real. They are real fathers, mothers, sons, daughters and friends. We are real people who have made a strong contribution to this 

country. Our (Indian) people, serve more per capita in the United States Armed 

Forces than any other ethnic group. 49 of our people are awarded the congressional 

Medal of Honor and countless of our people have died to protect your position as 

a United States Congressman and all freedoms enjoyed by every citizen of this 

country, except the Indian people. 

The history and culture of this country is predated by that of the Indian communities by centuries. As an American, we cannot afford to lose it, least our history 

be a mere 249 years old. As an Indian, our people deserve to feel secure in what 

we have earned over the years. We should not be subjected to the ‘‘to and fro’’ 

threats, to our people and society. 

Congressman, please support H.R. 5244 and give us back some security! Thank 

you for your time today and for what you do for this country. 

I remain sincerely, 

HAROLD (BUSTER) HATCHER, 

Chief of the Waccamaw. 
139 

YANKTON SIOUX TRIBE, 

WAGNER, SD 

June 1, 2018 

Hon. ROB BISHOP, 

Hon. RAUL GRIJALVA, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. JOHN HOEVEN, 

Hon. TOM UDALL, 

Senate Committee on Indian Affairs, 

Washington, DC 20510. 

Re: Support for H.R. 5244/S. 2628, the Mashpee Wampanoag Tribe Reservation 

Reaffirmation Act 

Dear esteemed Members of Congress: 

I am writing on behalf of the Yankton Sioux Tribe to advocate for the Mashpee 

Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628). We 

strongly urge the Senate Indian Affairs Committee, and the House Natural 

Resources Committee and its Subcommittee on Indian and Alaska Native Affairs, 

to ensure the reaffirmation of the Mashpee Tribe’s Reservation. 

The Mashpee Wampanoag Tribe is a federally recognized tribe with a reservation 

located within its historical homeland in Massachusetts. This reservation was established in accordance with the Indian Reorganization Act and with strong local 

government support. The Mashpee Tribe has been successful in rebuilding and providing for its members, as well as establishing great relationships with surrounding 

local governments. The Mashpee Tribe’s reservation is threatened by litigation that 

could disestablish the reservation, which has not happened since the Termination 

era. 

The Mashpee Tribe is not asking for new or special rights, only the reaffirmation 

of its reservation. If Congress does not exercise its plenary authority, the Mashpee 

Tribe’s reservation and means of self- sufficiency will be lost. This is consistent with 

the federal government’s trust obligations to federally recognized tribes. Please 

enact this important legislation. 

Sincerely, 

ROBERT FLYING HAWK, 

Chairman, Business and Claims Committee. 

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE

COMMITTEE’S OFFICIAL FILES]

Submission for the Record by Vanessa L. Ray-Hodge 

—NCAI Comments on Tribal Trust Compliance and Federal 

Infrastructure Decision-Making, November 30, 2016 

Æ