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78-759 PS 2002

H.R. 103, H.R. 3476 and H.R. 3534

LEGISLATIVE HEARING

BEFORE THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

April 17, 2002

Serial No. 107-105

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://resourcescommittee.house.gov

(II)

COMMITTEE ON RESOURCES

JAMES V. HANSEN, Utah, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,

Vice Chairman

W.J. ‘‘Billy’’ Tauzin, Louisiana

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Joel Hefley, Colorado

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Scott McInnis, Colorado

Richard W. Pombo, California

Barbara Cubin, Wyoming

George Radanovich, California

Walter B. Jones, Jr., North Carolina

Mac Thornberry, Texas

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Bob Schaffer, Colorado

Jim Gibbons, Nevada

Mark E. Souder, Indiana

Greg Walden, Oregon

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Tom Osborne, Nebraska

Jeff Flake, Arizona

Dennis R. Rehberg, Montana

George Miller, California

Edward J. Markey, Massachusetts

Dale E. Kildee, Michigan

Peter A. DeFazio, Oregon

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Calvin M. Dooley, California

Robert A. Underwood, Guam

Adam Smith, Washington

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Jay Inslee, Washington

Grace F. Napolitano, California

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

James P. McGovern, Massachusetts

Anibal Acevedo-Vila, Puerto Rico

Hilda L. Solis, California

Brad Carson, Oklahoma

Betty McCollum, Minnesota

Tim Stewart, Chief of Staff

Lisa Pittman, Chief Counsel/Deputy Chief of Staff

Steven T. Petersen, Deputy Chief Counsel

Michael S. Twinchek, Chief Clerk

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

(III)

CONTENTS

Page

Hearing held on April 17, 2002 .............................................................................. 1

Statement of Members:

Carson, Hon. Brad, a Representative in Congress from the State of

Oklahoma ...................................................................................................... 91

Prepared statement on H.R. 3534 ........................................................... 92

Hansen, Hon. James V., a Representative in Congress from the State

of Utah ........................................................................................................... 1

Prepared statement on H.R. 103, H.R. 3476, and H.R. 3534 .............. 2

Hayworth, Hon. J.D., a Representative in Congress from the State of

Arizona ........................................................................................................... 6

Prepared statement on H.R. 103 ............................................................. 6

Issa, Hon. Darrell, a Representative in Congress from the State of

California ....................................................................................................... 3

Prepared statement on H.R. 3476 ........................................................... 5

Kildee, Hon. Dale, a Representative in Congress from the State of

Michigan ........................................................................................................ 3

Prepared statement on H.R. 103 ............................................................. 57

Prepared statement on H.R. 3476 ........................................................... 3

Prepared statement on H.R. 3534 ........................................................... 96

Pallone, Hon. Frank, Jr., a Representative in Congress from the State

of New Jersey, Prepared statement on H.R. 3476 ..................................... 100

Rahall, Hon. Nick J. II, a Representative in Congress from the State

of West Virginia ............................................................................................ 9

Prepared statement on H.R. 103, H.R. 3476, and H.R. 3534 .............. 9

Watkins, Hon. Wes, a Representative in Congress from the State of

Oklahoma ...................................................................................................... 94

Prepared statement on H.R. 3534 ........................................................... 95

Statement of Witnesses:

Anoatubby, Bill, Governor, The Chickasaw Nation ....................................... 79

Prepared statement on H.R. 3534 ........................................................... 80

Avery, Jim, Senior Vice President, San Diego Gas & Electric ..................... 38

Prepared statement on H.R. 3476 ........................................................... 39

Brulte, Hon. Jim, State Senator, The State of California ............................. 7

Prepared statement on H.R. 3476 ........................................................... 8

Garcia, Joe A., Tribal Councilman, San Juan Pueblo Indians ..................... 57

Prepared statement on H.R. 103 ............................................................. 59

George, Keller, President, United South and Eastern Tribes, Inc. .............. 65

Prepared statement on H.R. 103 ............................................................. 68

Macarro, Mark, Chairman, Pechanga Band of Luiseno Mission Indians .... 33

Prepared statement on H.R. 3476 ........................................................... 35

Marquez, Deron, Chairman, San Manuel Band of Mission Indians ............ 60

Prepared statement on H.R. 103 ............................................................. 63

Pyle, Gregory, Chief, Choctaw Nation of Oklahoma ..................................... 81

Prepared statement on H.R. 3534 ........................................................... 82

Smith, Chad, Principal Chief, The Cherokee Nation .................................... 85

Prepared statement on H.R. 3534 ........................................................... 87

Smith, Wayne, Deputy Assistant Secretary—Indian Affairs, Bureau of

Indian Affairs, U.S. Department of the Interior ........................................ 11

Prepared statement on H.R. 103 ............................................................. 28

Prepared statement on H.R. 3476 ........................................................... 12

Prepared statement on H.R. 3534 ........................................................... 31

(1)

LEGISLATIVE HEARING ON H.R. 3476, TO PROTECT CERTAIN LANDS HELD IN FEE BY

THE PECHANGA BAND OF LUISENO MISSION INDIANS FROM CONDEMNATION

UNTIL A FINAL DECISION IS MADE BY THE

SECRETARY OF THE INTERIOR REGARDING

A PENDING FEE TO TRUST APPLICATION

FOR THAT LAND, AND FOR OTHER PURPOSES; H.R. 103, TO AMEND THE INDIAN

GAMING REGULATORY ACT TO PROTECT

INDIAN TRIBES FROM COERCED LABOR

AGREEMENTS; AND H.R. 3534, TO PROVIDE

FOR THE SETTLEMENT OF CERTAIN LAND

CLAIMS OF THE CHEROKEE, CHOCTAW,

AND CHICKASAW NATIONS TO THE ARKANSAS RIVERBED IN OKLAHOMA.

Wednesday, April 17, 2002

U.S. House of Representatives

Committee on Resources

Washington, DC

The Committee met, pursuant to call, at 10 a.m., in room 1334,

Longworth House Office Building, Hon. James V. Hansen (Chairman of the Committee) presiding.

STATEMENT OF THE HON. JAMES V. HANSEN, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH

The CHAIRMAN. The Committee will come to order. Good morning. It is good to see you all here. I notice there is a group of folks

standing. We are not going to use this bottom tier here today. If

you want to come up and take it, if you can stand the embarrassment of sitting up there, we would love to have you come up and

take it.

[Laughter.]

The CHAIRMAN. We normally like to use 1324 for our hearings.

That is the room on the other end, but there is some work being

done on it right now, so we all are stuck in this little room.

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Today’s hearing is on three bills of distinct subject matter. The

first is H.R. 3476, which protects from condemnation certain fee

land belonging to the Pechanga Band—and I will probably foul up

all of these words, so just ignore that, will you?—of the Luiseno

Mission Indians, is that close, Darrell?—until the Secretary of the

Interior renders a final decision on the tribe’s pending fee to trust

application. H.R. 3476 was introduced by Congressman Darrell

Issa of California. Mr. Issa will be testifying on his bill this morning, and we thank you for being here.

The CHAIRMAN. The second bill is H.R. 103, introduced by Mr.

Hayworth. H.R. 103 amends the Indian Gaming Regulatory Act to

protect tribes from coerced labor agreements in tribal state gaming

compacts. H.R. 103 has generated some controversy, but it raises

issues that are important to members on both sides of the aisle.

The CHAIRMAN. The third bill, H.R. 3534, was introduced by Mr.

Carson. H.R. 3534 settles claims asserted by the Cherokee, Choctaw, and Chickasaw Nations for damages for the United States use

or mismanagement of tribal trust resources from the Arkansas

riverbed. The legislation extinguishes all the nations’ claims to the

riverbed lands at issue, and authorizes $41 million in appropriated

claim settlement funds to be allocated among the Cherokee, Choctaw, and Chickasaw Nations.

The CHAIRMAN. We look forward to some enlightening testimony

this morning. I understand that one of our witnesses, California

Senator Brulte, may have an unavoidable scheduling conflict requiring his early departure. I hope our other witnesses will not object to the Senator moving up in order and testifying immediately

after Mr. Issa.

[The prepared statement of Chairman Hansen follows:]

Statement of The Honorable James V. Hansen, Chairman,

Committee on Resources

Today’s hearing is on three bills of distinct subject matter. The first is H.R. 3476,

which protects from condemnation certain fee land belonging to the Pechanga Band

of Luiseno Mission Indians until the Secretary of the Interior renders a final decision on the tribe’s pending fee to trust application. H.R. 3476 was introduced by

Congressman Darrell Issa of California. Mr. Issa will be testifying on his bill this

morning and we thank him for being here.

The second bill is H.R. 103, introduced by Mr. Hayworth. H.R. 103 amends the

Indian Gaming Regulatory Act to protect tribes from coerced labor agreements in

tribal-state gaming compacts. H.R. 103 has generated some controversy, but it

raises issues that are important to Members on both sides of the aisle.

The third bill, H.R. 3534, was introduced by Mr. Carson. H.R. 3534 settles claims

asserted by the Cherokee, Choctaw, and Chickasaw Nations for damages for the

United States’ use and mismanagement of tribal trust resources from the Arkansas

Riverbed. The legislation extinguishes all of the Nations’ claims to the riverbed

lands at issue, and authorizes $41 million in appropriated claim settlement funds

to be allocated among the Cherokee, Choctaw, and Chickasaw Nations.

We welcome our witnesses and look forward to hearing from you.

The CHAIRMAN. Excuse me. Mr. Miller, did you have any opening

comment you wanted to make?

Mr. MILLER. No, sir.

The CHAIRMAN. Mr. Kildee?

Mr. KILDEE. Are we dealing first with H.R. 3476, Mr. Chairman?

The CHAIRMAN. Pardon me, sir?

Mr. KILDEE. Are we dealing first with H.R. 3476?

3

The CHAIRMAN. Yes.

Mr. KILDEE. I would like to make a statement on that, Mr.

Chairman.

The CHAIRMAN. All right.

STATEMENT OF THE HON. DALE E. KILDEE, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

MICHIGAN

Mr. KILDEE. Mr. Chairman, I am in strong support of H.R. 3476,

a bill to protect certain lands held in fee by the Pechanga Band of

Luiseno Mission Indians from condemnation proceedings until the

Secretary of Interior makes a final decision regarding the pending

fee to trust application for that land.

Mr. Chairman, since last fall you and I have worked together

with Chairman Macarro to find a legislative solution to protect the

land in question from condemnation proceedings until the

Secretary makes a final decision. Last month the Department of

Interior gave notice of its intent to take the land in trust for the

Pechanga Band.

The Federal administrative process for taking land into trust for

tribes should continue without interruption. We therefore should

act swiftly to protect that land from the actions of corporations that

wish to begin condemnation proceedings on the Pechanga ancestral

lands.

Mr. Chairman, I look forward to working with you on this and

hearing the testimony today.

[The prepared statement of Mr. Kildee follows:]

Statement of The Honorable Dale E. Kildee, a Representative in Congress

from the State of Michigan, on H.R. 3476

Mr. Chairman, I am in strong support of H.R. 3476, a bill to protect certain lands

held in fee by the Pechanga Band of Luiseno Mission Indians from condemnation

proceedings until the Secretary of Interior makes a final decision regarding the

pending fee to trust application for that land.

Mr. Chairman, since last fall, you and I have worked together with Chairman

Macarro to find a legislative solution to protect the land in question from condemnation proceedings until the Secretary makes a final decision. Last month, the Department of Interior gave notice of its intent to take the land in trust for the Pechanga

Band.

The Federal administrative process for taking land into trust for tribes should

continue without interruption. We, therefore, should act swiftly to protect that land

from the actions of corporations that wish to begin condemnation proceedings on the

Pechanga ancestral lands.

I look forward to hearing the testimony today. Thank you.

The CHAIRMAN. I thank the Gentleman.

I ask unanimous consent that following his testimony, the Gentleman from California, Mr. Issa, be allowed to sit on the dais and

participate in the hearing. Is there objection?

Hearing none, so ordered.

We are honored to have our colleague from California with us,

and we will turn the time to him.

STATEMENT OF HON. DARRELL ISSA, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. ISSA. Thank you, Mr. Chairman, and thank you for convening this hearing. H.R. 3476 will protect 724 acres known as the

4

Great Oak Ranch property from condemnation by San Diego Gas

and Electric until, and only until, a final decision is made by

Secretary Gale Norton regarding the pending trust application.

Mr. Chairman, just as I was sworn into office, the Pechanga

Band of Mission Indians purchased the Great Oak Ranch. That is

not because of any coincidence of my election, but in fact because

they had sought this land for more than 30 years and its owner

had sought to retain it, I guess until their death. As soon as this

property was available, Pechanga paid the full list price to purchase this land, and did so because it takes land which has previously been missing from reuniting two portions of their tribal and

now makes them whole. This is a perfect example of where land

should be placed in trust because it makes their reservation contiguous.

Unfortunately, the celebration surrounding the purchase of land

was short-lived. On March 23, 2001, San Diego Gas & Electric released a map proposing 17 different alignments for a 31-mile

stretch of what is now a 500,000-volt line known as the ValleyRainbow transmission line. Unfortunately, one of the alignments

goes through the heart of the Great Oak Ranch property and the

city of Temecula. The city of Temecula has objected to this alignment, as have the Pechanga Band of Indians.

I think it is best to try to shape if I can for you the nature of

this land in trust request. If this were the preferred route that

went through the Pechanga Reservation, I certainly would be looking differently upon it. It is not. As a matter of fact, the San Diego

Gas & Electric, in meetings directly with me, has said that the preferred route is an alignment which is presently not available to

them, because what they would like to do is either be just on Federal property, part of a national forest, or on existing land, land in

trust of the Pechanga Indians. Negotiations have been ongoing on

that alignment, and I would expect them to continue.

So it was with more than a little bit of consternation when I discovered that steadily San Diego Gas & Electric was opposing this

land being placed in trust, and intends to appeal the Notice of Decision. When I asked why they would do so, I received no official

answer. However, based on earlier discussions, it is very clear that

this piece of land represents, appropriate to San Diego Gas & Electric but inappropriate in my opinion, leverage to get a preferred

alignment.

Additionally, it has come to my attention that one of the alignments, and you may hear about it today, which I call the western

alignment, which goes through national forest lands, was never

submitted, although another organization wishing to do a water,

hydroelectric project, has requested that alignment. When asked

why San Diego Gas & Electric did not choose to request that one,

they said although it was a good alignment, it was difficult, and

the water project would not go through.

Today you will also hear from State Senator Brulte, who not only

is a State Senator and former State Assemblyman, but who has

been working on these issues for his entire tenure in the State

House.

5

Mr. Chairman, I would ask that my entire statement be put in

the record, and I will abbreviate it in hopes that I be able to join

you on the dais and witness if there are any new developments.

[The prepared statement of Mr. Issa follows:]

Statement of The Honorable Darrell E. Issa, a a Representative in Congress

from the State of California, on H.R. 3476

Mr. Chairman, I want to thank you for holding a hearing on H.R. 3476, which

will protect a 724-acre parcel of land known as the Great Oak Ranch Property from

condemnation by San Diego Gas and Electric until a final decision is made by

Secretary Gale Norton regarding their pending trust application.

First, I want to give you a brief background on why I introduced this bill. Last

April, I was approached by the Pechanga Band of Luiseno Mission Indians concerning a developing situation involving land they recently purchased for the purpose of making their fragmented reservation whole again.

The celebration surrounding the purchase of this property was short-lived. On

March 23, 2001, San Diego Gas & Electric (SDG&E) released a map proposing 17

different alignments for a thirty-one mile, 500,000-volt Valley–Rainbow transmission line project. Unfortunately, one alignment goes through the heart of the

Great Oak Ranch Property. The City of Temecula has come out in opposition to this

alignment and this project, questioning its need and justification.

The interesting thing is that the Great Oak Ranch Property alignment selected

is not SDG&E’s preferred route. The preferred route is intended to go around the

periphery of the existing reservation and SDG&E is using a threat of a transmission

line through the Great Oak Ranch Property to gain an unfair advantage against the

tribe into granting an easement.

On March 21, 2002, the Department of Interior registered a Notice of Decision to

accept the Great Oak Ranch Property in trust. That same day, a SDG&E spokesperson stated in a local paper that they would plan to appeal this Notice of Decision.

If this happens, an appeal could potentially delay the Pechanga Indians’ land into

trust application for years, with the threat of condemnation hanging over them the

entire time.

I respect the committee’s stance that placing land into trust should be done administratively, based on the application’s merits, with the benefit of an environmental assessment and community input. My bill simply allows the Pechanga Indians application to continue through the administrative process and prevent any encumbrance from being placed on the land until a final decision is issued by the

Secretary of Interior.

The Pechanga reservation has received overwhelming public support regarding

their attempts to protect the Great Oak Ranch property from condemnation. The

city councils, state legislators, such as State Senator Jim Brulte, who will be testifying shortly, and members of Congress, including Congresswoman Mary Bono and

Congressman Ken Calvert, a distinguished member of this committee, have all

voiced or written support for this endeavor. Mr. Chairman, I would like to submit

for the record a packet of letters in support of Pechanga’s land into trust application. Many of these letters are from California State Assembly Members, demonstrating how important this application is to the state.

Mr. Chairman, H.R. 3476 is a good bill. It will protect the Pechanga Indians’ land

from condemnation, while Secretary Norton decides on the application. Having finally connecting the two parcels of the reservation with the Great Oak Ranch Property, the Pechanga Indians shouldn’t have to worry about the land being condemned

and divided again.

Thank you again for the opportunity to testify before for your committee. I stand

ready to answer any questions that you may have.

The CHAIRMAN. Without objection, and all the testimony will be

put in in its entirety, if people would like to speak off the cuff.

I appreciate the Gentleman. Do we have any questions for our

colleague from California? Mr. Miller?

Mr. MILLER. I have no questions. I am obviously in strong support of the legislation. I thought we were going to get this done last

year, and it didn’t happen. Hopefully we will have the success this

6

year. Thank you for your testimony, and I look forward to Senator

Brulte’s testimony.

The CHAIRMAN. I thank the Gentleman from California.

The Gentleman from Arizona, Mr. J.D. Hayworth, has done us

an exceptionally good job on these matters, Indian matters, and

J.D. happens to be our expert on it. I have a military issue I have

to take care of, so I am going to turn the chair over to Mr.

Hayworth, who does such an admirable job in this area, and ask

our friend from California to please join us on the dais.

Mr. ISSA. Thank you, Mr. Chairman.

The CHAIRMAN. And thanks to all the witnesses. And let me reiterate for you folks standing there, we are not going to use this bottom tier. If you are so inclined, come on up and sit there. If it embarrasses you to death, so be it. We go through that every day.

[Laughter.]

STATEMENT OF THE HON. J.D. HAYWORTH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA

Mr. HAYWORTH. [Presiding.] Mr. Chairman, thank you, and I

hope the embarrassment does not extend to yielding the gavel to

me.

We also welcome the Ranking Member of the Full Committee,

Mr. Rahall. Thank you for joining us this morning. And for those

who join us on the lower dais, I think it lends credence to the notion that this is in fact the people’s House.

Mr. Issa, of course you are free to come join us here, as well, and

we thank you for that. In fact, unanimous consent came earlier. It

pays to be on time, Mr. Rahall. Don’t start.

Now, commensurate with staying on time, we will move now to

Panel 2, and that means we call on our friend, Wayne Smith, the

Deputy Assistant Secretary of Indian Affairs for the Bureau of Indian Affairs.

[The prepared statement of Mr. Hayworth follows:]

Statement of The Honorable J.D. Hayworth, a Representative in Congress

from the State of Arizona, on H.R. 103

H.R. 103 amends the Indian Gaming Regulatory Act to prohibit tribal-state gaming compacts from including or being conditioned on any agreement containing any

provision relating to labor terms or conditions for employees of tribally owned businesses located on Indian lands. The legislation voids any such provisions that have

been entered into before, on, or after the legislation’s enactment.

In 1998, the California Supreme Court overturned Proposition 5, which confirmed

California tribes’ right to gaming enterprises. As a result, the United States attorney declared that all tribal gaming in the state would cease unless Tribal–State

compacts were signed by October 13, 1999. Faced with the prospect that their most

valuable economic assets (which help fund health care facilities, education facilities,

and other social and economic endeavors), would be shut down, 61 California tribes

were essentially coerced into signing gaming compacts with Governor Gray Davis

that carried separate labor agreements. It was made very clear by Governor Davis

that a gaming compact would not be signed without a labor agreement.

As a matter of Federal law, the National Labor Relations Act does not apply to

Indian tribes because they are recognized as sovereign governmental entities under

the Constitution. Nevertheless, under the time-sensitive deadline set in California,

tribes in that state were forced to cede their sovereignty—their constitutional

rights—to the State of California in order to save their enterprises from being shut

down.

The issue here is not whether tribes should unionize their gaming facilities, but

who should make that decision. Should it be up to the sovereign tribal governments,

or should it be up to the states or the Federal Government? The U.S. Constitution

7

states that it is the tribes, as sovereign government entities, that have the right to

make this decision.

Recently, referring to the San Juan Pueblo of New Mexico tribe’s right-to-work ordinance, the 10th U.S. Circuit Court of Appeals stated that the ordinance was

‘‘clearly an exercise of sovereign authority over economic transactions on the reservation.’’ H.R. 103, the Tribal Sovereignty Protection Act, will ensure that states do not

force Indian tribes to unionize their casino employees as a condition of a tribal-state

gaming compact made under the Indian Gaming Regulatory Act. The bill will allow

sovereign tribes to have the freedom to determine their own labor policies, rather

than be blackmailed by the state and/or Federal Government.

Mr. HAYWORTH. Oh, I beg your pardon. There has been a late

change, speaking of time. Forgive me, Wayne. We will bring you up

all in due time, but mindful of the schedule that Senator Brulte

must keep to return to serve the people in Sacramento and the

State of California, we welcome him to the table for his testimony.

So, Senator Brulte, welcome, and again, your entire statement will

be put into the record and you may summarize in the time for

which we recognize you. Welcome.

STATEMENT OF HON. JAMES BRULTE, STATE SENATOR,

STATE OF CALIFORNIA

Mr. BRULTE. Thank you, Mr. Chairman and members, and thank

you for the opportunity to testify on this legislation today. I am

here to support H.R. 3476, and the reason is quite simple. A vast

majority of State and local interests support the protection of the

Great Oak Ranch and its return to the Pechanga Reservation. This

support is demonstrated by a list and a stack of letters that I

would like to provide the Committee today.

I think the depth and breadth of the support here is a strong indication of the uniqueness of the property in question and the need

for this legislation. Later in this hearing Chairman Macarro will

provide you a moving and powerful story about this land, a particular tree and its cultural significance. It is a story that he has

shared quite effectively throughout Riverside County and the corridors of our State Capitol. It is a story of pictures, one of which

is here today, this 1500-year-old tree with its 26-foot diameter

trunk.

I am here today on behalf of myself and many State legislators

and local officials to ask the Committee to take favorable action on

the bill introduced by Congressman Issa and cosponsored by Congresswoman Bono, so that our efforts to protect the Great Oak

Ranch are successful.

H.R. 3476 does not impede California’s right to act through its

Public Utilities Commission to determine the need for better electrical transmission capability. H.R. 3476 does not take a position

on the March 2002 position of the United States Department of

Interior to take this land into trust. H.R. 3476 simply calls a time

out in the condemnation process until the United States Department of Interior makes a final determination on taking that particular piece of land into trust.

Mr. Chairman, thank you for allowing me the opportunity to

speak, and particularly for allowing me the opportunity to speak

out of order, and I will provide my written testimony to the

Committee.

8

[The prepared statement of Mr. Brulte follows:]

Testimony of The Honorable James Brulte, Senator,

California State Senate—31st District

Mr. Chairman and Members, thank you for the opportunity to testify today on

this important legislation. I also want to publicly thank our Congressman, Darrell

Issa, for his leadership role on this matter.

I am here in support of H.R. 3476. My message to you is simple. A vast majority

of state and local interests support protection of the Great Oak Ranch and its return

to the Pechanga Reservation. This support is demonstrated by this list and the

stack of letters I am providing the committee.

I do not need to tell members of this committee how unusual it is to have such

strong local support for the protection of lands on behalf of a tribe. I think the depth

and breadth of the support here is a strong indication of the uniqueness of the property in question and the need for this legislation.

Chairman Macarro has presented to you the moving and powerful story of this

land, its tree, and its cultural significance. It’s a story that he has shared quite effectively throughout Riverside County and in the corridors of our state capitol. It’s a story with pictures, one in particular, that he has shared with you today—that

1500-year old tree with its 26-foot diameter trunk. As incredible as that picture is,

it still doesn’t do the tree justice. The next time you’re in our part of the world, I

hope you will contact me or Chairman Macarro and arrange a visit so you can stand

under the tree and really grasp its grandeur.

I am here on behalf of myself and many other state and local officials to ask the

committee to take favorable action on the bill introduced by Congressman Issa and

co-sponsored by Congresswoman Bono so that our efforts to protect the Great Oak

Ranch are successful.

It should be no surprise to anyone here today that as a state senator, I am quite

partial to the final amendment in the Bill of Rights. The 10th Amendment is the

foundation of our Federalist form of government and is what protects the notion

that what might be good for Californians isn’t always the best solution for Arizonians—and vice versa.

I’d be remiss if I did not thank those of you who first looked at this legislation

with a skeptical eye and through the prism of the 10th Amendment. However, as

demonstrated by the chart on the easel and by my attendance at this hearing today,

rest assured that the action taken by you and the Department of Interior is not only

appropriate in the eyes of local officials, but, in my opinion, is required.

As a legislator, I could give you a very technical overview about Section 625 of

the California Public Utilities Code, which has been cited here today. But, in a nutshell, SDG&E’s efforts to condemn this property before the CPUC has made a decision on the necessity of the line is why we are here today and why this legislation

is necessary. But rather than get into a detailed discussion about Public Utilities

Code Section 625, I am submitting a briefing on the issue for the record.

The bottom line is that the community supports the protection of the Great Oak

Ranch and this legislation. The Issa/Bono bill tracks our state law in the sense it

gives the benefit of the doubt to the private property owner and puts the burden

of proof on the utility company.

This legislation merely protects the status quo with respect to this particular

piece of land that the Federal Government has deemed worthy of being taken into

Federal trust on behalf of the Pechanga Tribe.

Mr. Chairman, I again thank you for the opportunity to testify today and I again

urge the Committee’s favorable and expeditious action on H.R. 3476. I look forward

to answering the committee’s questions.

Mr. HAYWORTH. And, Senator, we thank you for that, and we

thank the other witnesses and the Full Committee for the accommodation to allow you to appear at this point.

If you could, briefly summarize and just reaffirm for the

Committee the benefits, in your opinion, that the transfer of the

Great Oak Ranch into trust would bring to the surrounding

community.

Mr. BRULTE. Well, this is a historic growth. We have so much

land in California. Much of it is being taken into development. This

is a piece of land that divides a reservation. It is land that is part

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of the ancestral home of the Pechanga Indian Nation. It is land

that ought to be saved, set apart, and not devastated by any type

of development, by any entity whatsoever.

Mr. HAYWORTH. Senator, what are the adverse impacts to the

county or State resulting from removal of this land from the tax

rolls? Are there any adverse impacts, in your estimation?

Mr. BRULTE. No, the tax rate on this property isn’t that great to

begin with, but the State of California is quite capable of dealing

with any problem that might be created by that.

Mr. HAYWORTH. It has been argued by some this legislation is a

Federal intrusion on the right of a State-regulated utility to condemn land. What is your response to that accusation?

Mr. BRULTE. Well, the Federal Government is charged with the

responsibility of dealing with other sovereign entities, in this case

the sovereign Nation of the Pechanga Indians. Our California Public Utilities Commission has not ruled today on whether or not this

land should be condemned and taken into action. This simply calls

a time out in the process pending a final determination by the Federal Government.

Mr. HAYWORTH. Senator, I thank you for those answers.

Any questions from the minority side? The Ranking Member.

STATEMENT OF THE HON. NICK J. RAHALL II, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

WEST VIRGINIA

Mr. RAHALL. Thank you, Mr. Chairman. I have no questions, and

certainly no objection to the bill. I just wanted to make a comment

here that we have seen Indian sacred sites around the country

being damaged or destroyed at quite an alarming rate. In this regard, it is my opinion we do need a nationwide bill to address protection of Indian sacred sites. I do have legislation that would provide that nationwide protection, and we are working very closely

with the tribes, because it is their feeling that we need such a Federal law as well.

But in this particular instance there is this 1500-year-old tree on

land that the Pechanga bought, and it is almost humorous to think

that a Federal law may be needed, that we may need to pass a

Federal law to buy the tree a little time, as you have just stated,

while the BIA decides on the tribe’s trust application. We can only

imagine what this tree has been through over the hundreds of

years it has stood there, and now its fate may be in the hands of

the BIA’s ability to make a quick decision. This could be the most

sacred time of this tree’s life.

I do commend the Gentleman from California, my good friend,

Mr. Issa, for introducing this legislation. Let’s just hope and pray

that the BIA will work to bring the land into trust status for protection in some sort of expeditious fashion, if that is possible.

I yield my time back, Mr. Chairman. Thank you.

Statement of The Honorable Nick J. Rahall, II, Ranking Democrat,

Committee on Resources, on H.R. 3476, H.R. 103 and H.R. 3534

Mr. Chairman, there are three bills on the schedule this morning and it is my

understanding we will be allowed an opening statement on each one.

Mr. Miller will address H.R. 103, Mr. Carson his bill, H.R. 3534 and I will speak

to H.R. 3476 for the time being.

10

This legislation by my good friend, Darrell Issa, would protect land containing a

valuable piece of history and sacred sites of the Pechanga Tribe from possible condemnation. The Tribe has bought land in its ancestral area and has an application

pending for it to be brought into trust status and it should be.

Indian sacred sites are being damaged and destroyed at an alarming rate all

across our nation. I believe we need to pass legislation to address the problem nationwide and am working with tribes on such a bill.

In this particular instance, there is a 1,500 year old tree on the land the Pechanga

bought. It is almost humorous to think that a Federal law may need to be passed

to buy the tree a little time while BIA decides on the tribe’s trust application.

Imagine what that tree has been through over the hundreds of years it has stood

there—and now—its fate may be in the hands of the BIA’s ability to make a quick

decision,

This could be the scariest time of this tree’s life. Let us just hope and pray that

the BIA will work to bring the land into trust status for protection in an expeditious

fashion.

As I noted, George Miller will have some comments to make on H.R. 103 when

it is brought up for consideration.

I would simply observe that the bill an anti-labor, anti-worker, and a not even

thinly disguised assault on labor unions. No surprise there ‘‘

The surprise is, however, that it has been dressed up to look something like a

pro-tribal sovereignty and that is just a bad political ploy.

I welcome our witnesses and I thank them for traveling here.

Mr. HAYWORTH. Thank you, Mr. Rahall.

Anyone on this side with other questions?

The Gentleman from California, Mr. Miller.

Mr. MILLER. Thank you, Mr. Chairman. I just want to say, Jim,

welcome to the Committee, and thank you for all your work on behalf of these lands. You and Congressman Issa have done a great

job in seeking to protect these lands, and work out all the intricacies and the nervousness of the utilities and everyone else.

When we think of what is happening in some of the oak forests

in northern California that are succumbing to sudden oak disease

and we are losing magnificent trees, this may be more important

than we thought when we originally started to save this tree and

the surrounding environment. So thank you for your effort, and

thank you for making the effort to come back and testify on the

bill.

Mr. BRULTE. Thank you, sir.

Mr. HAYWORTH. Our friend from California, Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman.

Senator Brulte, would it be fair to say that the question of

whether or not this power line is needed and where the appropriate

alignments are to be placed is a State issue, and whether or not

this particular one of 17 stated alignments is available is a Federal

issue? Would you say that is sort of the balance we are considering

here today?

Mr. BRULTE. Sure, and the California Public Utilities Commission, if and when this bill is passed, will still be charged with the

responsibility of determining whether or not the line is needed, and

San Diego Gas & Electric will still have condemnation rights everywhere but this land. So I don’t think States’ rights are being

impeded at all. If it were, Senator Burton, my majority party counterpart, and local elected officials numbering in the hundreds,

wouldn’t be in support of this legislation.

Mr. ISSA. Senator Brulte, just one last follow-up. Would my observation be correct that there is virtually no support on either side

11

of the aisle in California, in the Senate, the Assembly, or local, in

the surrounding areas, for this project at this time, and certainly

this alignment?

Mr. BRULTE. I am not aware of any support for it, Congressman

Issa.

Mr. ISSA. Thank you, Senator. Thank you for being here today.

I realize this was quite a detour for you.

Mr. BRULTE. Well, thank you very much.

Mr. HAYWORTH. Thank you, Mr. Issa.

The Gentleman from Michigan, Mr. Kildee.

Mr. KILDEE. Just briefly, Senator, having served in my State

Senate, I am always pleased when I find a representative of one

of our sovereign States being sensitive to the concerns of our sovereign native tribes, and I just commend you for your position and

commend you for testifying today.

Mr. BRULTE. Thank you, sir.

Mr. KILDEE. Thank you very much.

Mr. HAYWORTH. And I thank my friend from Michigan for waxing

nostalgic and hopeful all in one great statement.

If there are no other questions or comments for our witness,

again, Senator Brulte, thank you, and safe travels back to your

home State and up to Sacramento. We appreciate you being here.

And now a fellow who warmed up for moving front and center

is now prepared to do that, and that again is the aforementioned

Wayne Smith, the Deputy Assistant Secretary of Indian Affairs

from the Bureau of Indian Affairs. Good morning, Mr. Smith. We

apologize for the false start earlier, but we trust you are ready to

offer testimony on these three pieces of legislation, and we welcome

you.

STATEMENT OF WAYNE SMITH, DEPUTY ASSISTANT

SECRETARY, INDIAN AFFAIRS, BUREAU OF INDIAN AFFAIRS,

DEPARTMENT OF THE INTERIOR

Mr. SMITH. Good morning, Mr. Chairman. Thank you for allowing me to be here. It is always fun to testify before this Committee.

As a matter of process, do you want me to testify to all three bills

at this time, or just the bill that is being heard at this time?

Mr. HAYWORTH. We would like you to go for it. Maybe I shouldn’t

use the term ‘‘trifecta’’ but all three bills.

Mr. SMITH. Yes, that is good. I have never done very well at the

horse track, so I won’t do that.

I thought in the interest of time and brevity I will leave some

of the background information out of all three of the bills, because

there are Gentlemen that will testify after me that are much more

knowledgeable about those than I am. So what I would like to do

is talk more about either the policies or the law that affects any

one of these three bills.

In terms of the instant bill, as to the Pechanga Reservation, on

March 21st of 2002 the Acting Regional Director of the BIA’s

Pacific Region issued a Notice of Decision to accept the ranch property into trust status pursuant to the Indian Land Consolidation

Act. A copy of that notice is attached to my complete testimony, for

all of you gentlemen here today.

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Under 25 C.F.R. Part 151, unless an acquisition is mandated, the

BIA must consider the following factors before determining to take

the land into trust. One is the tribe’s need for additional land. Two

is the purpose for which the land will be used. Three is the impact

on the State and its political subdivisions resulting from the removal of the land from the tax rolls. Four is jurisdictional problems, potential conflict on the land which may arise. Five is whether the BIA is equipped to discharge the additional responsibilities

resulting from the acquisition of the land. And, six, whether or not

contaminants or other hazardous material may be present on the

property.

The BIA found in its decision that the tribe did have need for the

additional land; that the land would be used for religious and cultural preservation purposes; that there would be no adverse impact

on the local government’s financial situation; that there would be

no jurisdictional problems or potential conflicts after the transfer

of the title into trust; that we are indeed equipped to administer

additional responsibilities resulting from the acquisition; and that

there are no contaminants or other hazardous substances present

on the property.

This decision, however, is not a final decision, a final agency action as defined by the Administrative Procedures Act, and any

party who is adversely affected may file an appeal of a Notice of

Decision with the Interior Board of Indian Appeals within 30 days

of the initial decision. Upon the conclusion of the 30-day period, unless there is an appeal to the IBIA, the Regional Director will publish notice of final agency action pursuant to 25 C.F.R. 151.12(b),

to allow for 30-day judicial review.

The Department believes that in this case the procedures set out

in 25 C.F.R. Part 151 should continue to be followed. We recognize

Congress has the plenary power to take the land into trust on behalf of the tribe. However, we remain seriously concerned with congressional intervention once the administrative process has been

initiated.

This concludes my testimony on this bill. If you would like to ask

me some questions, I would be happy, before we move to the next

bill, Mr. Chairman.

[The prepared statement of Mr. Smith follows:]

Statement of Wayne Smith, Deputy Assistant Secretary—Indian Affairs,

U.S. Department of the Interior, on H.R. 3476

Good morning, Mr. Chairman, Members of the Committee. I would first like to

take the opportunity to thank you for the invitation to present testimony today on

H.R. 3476, a bill to protect certain land located in Riverside County, California, that

is held in fee simple by the Pechanga Band of Luiseno Mission Indians (‘‘Tribe’’)

from condemnation until a final decision is made by the Secretary of the Interior

on a pending application for trust status of the lands.

BACKGROUND

The Pechanga Reservation was established by Executive Order on June 27, 1882,

in what is now Riverside County, California and currently consists of 4,396 acres

of trust lands. In 2001, the Pechanga Band of Luiseno Indians acquired a parcel of

land in fee simple consisting of 697.35 acres of land and known as the Great Oak

Ranch (‘‘Ranch’’). In June 2001, the Tribe applied to the Department’s Bureau of Indian Affairs (‘‘BIA’’) to have the land placed into trust status, pursuant to the provisions of 25 CFR, Part 151.

The Ranch is contiguous to the Pechanga Indian Reservation and is home to the

largest natural-growing, indigenous live oak tree in the United States, estimated to

13

be over 1,500 years old. The tree serves as a spiritual place and has been used by

the Tribe for generations for ceremonies.

Additionally, there are other cultural resources located within the Ranch property

which are of importance to the Tribe. There are seven archaeological sites located

on the property, and along with the tree, the tract is eligible for inclusion on the

National Register of Historic Places. The Tribe’s stated purpose for acquiring the

ranch is to preserve and protect the cultural resources of the Luiseno people.

CURRENT SITUATION

On March 21, 2002, the Acting Regional Director of the BIA Pacific Region issued

a Notice of Decision to accept the Ranch property into trust status pursuant to the

Indian Land Consolidation Act of 1983 (25 U.S.C. 2202 et seq.). A copy of the Notice

of Decision is attached.

Under 25 CFR, Part 151, unless an acquisition is mandated, the BIA must consider the following factors before determining to take land into trust:

1. the Tribe’s need for additional land;

2. the purpose for which the land will be used;

3. the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls;

4. jurisdictional problems and potential conflict of land use which may arise;

5. whether the BIA is equipped to discharge the additional responsibilities resulting from the acquisition of the land;

6. whether or not contaminants or other hazardous materials may be present on

the property.

The BIA found that the tribe did have the need for additional land; that the land

would be used for religious and cultural preservation purposes; that there would be

no adverse impact on the local governmental financial situation; that there would

be no jurisdictional problems or potential conflicts after the transfer of the title into

trust; that BIA is equipped to administer additional responsibilities resulting from

the acquisition; and that there were no contaminants or hazardous substances

present on the property.

This decision is not a final agency action as defined by the Administrative Procedures Act, but any party who is adversely affected may file an appeal of the Notice

of Decision with the Interior Board of Indian Appeals (‘‘IBIA’’) within thirty days

of the initial decision.

Upon the conclusion of the thirty day period, unless there is an appeal to the to

the IBIA, the Regional Director will publish notice of final agency action pursuant

to 25 CFR 151.12(b), to allow 30 days for judicial review.

Lands held in trust by the United States for the benefit of Indian tribes enjoy a

number of protections that land held in fee simple status do not. Lands held in trust

are removed from local tax rolls. Additionally, lands held in trust may not be condemned without agreement of the Indian tribe involved and the lands are exempt

from certain zoning laws.

The procedure for taking land into trust set out at 25 CFR, Part 151, sets high

standards tribes must meet before the Department of Interior determines to take

property into trust. It is a fair process which provides for a comment period during

which affected parties may provide information to the Bureau of Indian Affairs regarding positive or adverse effects the decision may have, and it provides an opportunity for these parties to appeal a decision which is adverse to their interests.

The Department believes that in this case, the procedure set out in 25 CFR, Part

151 should continue to be followed. We recognize Congress has the plenary power

to take the land into trust on behalf of a tribe. We remain seriously concerned, however, with congressional intervention once the administrative process has been initiated.

This concludes my personal statement. I would be pleased to answer any questions you may have.

[Attachments to Mr. Smith’s statement follow:]

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Mr. HAYWORTH. Questions on H.R. 3476? Anyone have a question? The Gentleman from California.

Mr. ISSA. Thank you, Mr. Chairman. I really just have the one.

In making the finding, you laid out the elements. The fact that

this rejoins their reservation into a contiguous single reservation,

was that a major part of the consideration or at least a part of the

consideration?

Mr. SMITH. It is certainly a part of the consideration, absolutely.

Mr. ISSA. And is this almost universally, as long as the other elements of not having hazardous waste and so on, one of the cases

in which if you are rejoining a reservation that is split, that you

almost always come in on the side of rejoining reservations? Is that

pretty much a universal stand that the bureau tries to do?

Mr. SMITH. If all the standards that I read out, that I just read,

are followed or found, certainly trying to restore a reservation

would be a policy concern, I guess, of this department.

Mr. ISSA. And, last, in your due diligence you did look at and

were made fully aware of San Diego Gas & Electric’s position of potentially this being one of 17 alignments?

Mr. SMITH. Yes.

Mr. ISSA. So although they undoubtedly will make their point

known again here today, this was something that was fully considered and by the action was found not to be a compelling issue that

would stop this from being placed in trust?

Mr. SMITH. I would phrase it more that our responsibility is to

the Indian nation, and we looked under these regulations as to

what is best for the Indian nation under these regulations. While

we were aware of the power lines and so forth, our real concern

and the things that we look at are those that I enunciated in my

testimony.

Mr. ISSA. Thank you very much.

Mr. HAYWORTH. Thank you, Mr. Issa.

Questions on the minority side? The Gentleman from Michigan,

Mr. Kildee.

Mr. KILDEE. Mr. Smith, generally the criteria you use for taking

land into the trust, those criteria do apply to this particular piece

of land?

Mr. SMITH. Absolutely.

Mr. KILDEE. And do you believe, then, that the BIA should take

this particular land into trust?

Mr. SMITH. Yes.

Mr. KILDEE. Thank you very much.

Mr. HAYWORTH. Thank you, Mr. Kildee.

The Chair has a couple of questions, Mr. Smith. On March 21,

2002, the administration released a Notice of Decision to take the

Great Oak Ranch property into trust. Would that notice, in your

opinion, would that Notice of Decision negate the need for

H.R. 3476?

Mr. SMITH. We believe that the process that we have in place

right now is adequate to sort of protect this piece of property. We

would like to see the administrative process go forward, and we

think that there is adequate appeal, judicial appeal, for that. I recognize you have plenary powers. I would be very cautious to say

that it negates the need for you gentlemen to do anything.

27

Mr. HAYWORTH. And we thank you for being respectful of the

separation of powers. The diplomacy, Wayne, with which you replied to that, is great.

Now, a chance to analyze another assertion that is often made,

the argument that H.R. 3476 is a Federal intrusion on the right

of a State to condemn land. What is your response to that

assertion?

Mr. SMITH. Well, again, we have a process, the fee to trust process, that is actually a Federal process, and certainly that process

would preempt, if you will, a State’s ability to condemn land. So,

again, I would refer to my first answer and say that I think the

process we have already is based on the statute and based on regulations, and it certainly is a preemption of some of the State’s ability to do things, but it has a complete judicial review and we are

more than happy to let that judicial review run.

Mr. HAYWORTH. Thank you, sir.

I believe the Gentleman from California, Mr. Miller, had a couple

of questions.

Mr. MILLER. I really had no questions. I just wanted to make

sure that we understood—I appreciate there are problems with the

testimony, but it is the position, your position, that this land

should be taken into trust?

Mr. SMITH. That is correct.

Mr. MILLER. Thank you.

Mr. HAYWORTH. Reaffirmed and amplified through testimony

again. Thank you, Mr. Miller.

Any questions from the majority side? Any others from the minority side? Oh, the Gentleman from Montana.

Mr. REHBERG. Thank you, Mr. Chairman. It is a pretty simple

question. I was just trying to work on these acreages, and one

briefing that I have says it is 4,396 acres of trust land and 697.35

of the Great Oak Ranch, and the other briefing says 3,163 acres

and 724 acres in the Great Oak Ranch. Which is it?

Mr. SMITH. From my recollection of what we put down in my testimony, it is 4,396 acres of trust land, with 695.35 as the current

Great Oak Ranch that is being put into trust.

Mr. REHBERG. OK. Thank you.

Mr. SMITH. I was just informed by my learned counsel that is

correct.

Mr. REHBERG. That your numbers are correct?

Mr. SMITH. Yes.

Mr. REHBERG. Our other briefing is incorrect? OK, thank you.

Mr. SMITH. Again, I hesitate to say you are incorrect. I just say

mine are correct.

[Laughter.]

Mr. HAYWORTH. The Gentleman from California, Mr. Issa, wanted to make a point.

Mr. ISSA. Thank you, Mr. Chairman.

Mr. Smith, just one last follow-up. This legislation, H.R. 3476,

am I to understand, though, it in no way ties the hands or does

anything to limit the execution by the Bureau of Indian Affairs in

reaching a final decision. Is that correct?

Mr. SMITH. Yes. The process that we have in place is going to go

forward regardless of this bill.

28

Mr. ISSA. OK, because in crafting the bill we wanted to be respectful of your separation of powers and the job that you are already tasked by the Congress to do, and do very well. So hopefully

we have constructed this in a way that, although it protects the

tribe in the interim, it in no way would limit your final decision,

whatever it may be.

Mr. SMITH. That is correct.

Mr. ISSA. Thank you. Thank you, Mr. Chairman.

Mr. HAYWORTH. Thank you, Mr. Issa.

Any other questions or comments from the minority side on this

particular piece of legislation? If not, then, Mr. Smith, if you would

address your perspective and comments on H.R. 103.

Mr. SMITH. OK. Actually, I will be really brief on this bill. This

bill, H.R. 103, is the Tribal Sovereignty Protection Act, whose purpose is to ensure that Indian tribes are not forced to provide access

to or otherwise unionize their casino employees as a condition of

obtaining Federally approved Tribal-State Class III gaming compacts under the Indian Gaming Regulatory Act or IGRA.

The bill in its present form amends the Act by adding a subsection which would prohibit the inclusion of provisions pertaining

to labor agreements in Class III gaming compacts. It also provides

that such provisions in existing compacts shall be severed and considered null and void.

This legislation, if enacted, would affect the tribal-State compacting process in different ways from State to State. The Department of Interior is not prepared to speculate at this time on how

those effects will change the balance of negotiations between the

tribes and the States.

The Department is, however, concerned about Section 11(d)(3)(D)

of the bill. It would reach back into existing compacts that have already been agreed to by States and tribes and approved by the Department. This would have immediate impacts on existing labor

agreements, and could raise a number of unforeseeable contract

issues the Department is unprepared to discuss at this time.

If you have any questions, I would be happy to answer them.

[The prepared statement of Mr. Smith follows:]

Statement of Wayne Smith, Deputy Assistant Secretary—Indian Affairs,

U.S. Department of the Interior, on H.R. 103

Good morning, Mr. Chairman and Members of the Committee. I am pleased to

be here today to provide testimony on H.R. 103, the ‘‘Tribal Sovereignty Protection

Act,’’ whose purpose is to ensure that Indian tribes are not forced to provide access

to or otherwise unionize their casino employees as a condition of obtaining a

Federally approved Tribal–State Class III gaming compact under the Indian Gaming Regulatory Act (IGRA).

The bill, in its present form, amends Section 11(d)(3) of IGRA, 25 U.S.C.

2710(d)(3), by adding a subsection which would prohibit the inclusion of provisions

pertaining to labor agreements in Class III gaming compacts. It also provides that

such provisions in existing compacts shall be severed and considered null and void.

This legislation, if enacted, would affect the Tribal–State compacting process in

different ways from state to state. The Department of the Interior is not prepared

to speculate on how those effects will change the balance of negotiations between

the Tribes and the States.

The Department is concerned about section 11(d)(3)(D) of the bill because it would

reach back into existing compacts that already have been agreed to by States and

Tribes and approved by the Department. This would have immediate impacts on existing labor agreements and could raise a number of unforeseeable contract issues

that the Department is not prepared to discuss.

29

This concludes my remarks and I will be happy to answer any questions you may

have.

Mr. HAYWORTH. Mr. Smith, would lack of preparation prevent

you from articulating the administration’s view on the role of organized labor in the tribal-State compact process?

Mr. SMITH. I think that is correct.

Mr. HAYWORTH. So you are really just saying today you don’t feel

that you can comment, or is there a position, or is it being formulated, or you are just maintaining radio silence?

Mr. SMITH. Probably the latter. No, I am just kidding. We have

no formal position about what part labor might play in the compacts. We do believe, however, the compacts are negotiated between the tribes and the State, and the degree to which either the

tribes or the State wish to bring any other parties into or any other

concerns into the compact process is theirs. So we are more mindful of the two parties that are at the table negotiating the compact,

and so we are very reluctant at this time to say someone else

should either have a place or not have a place.

Mr. HAYWORTH. All right, sir. Let’s turn for questions or comments to the minority side. The Ranking Member, the Gentleman

from West Virginia.

Mr. RAHALL. Mr. Chairman, I don’t have any questions right

now. I would just like to ask Mr. Smith if he will be around later,

after we have heard the other witnesses on this bill, or if a member

of your staff will be around?

Mr. SMITH. I could certainly—I would be around or somebody

could be around, yes.

Mr. RAHALL. OK. Thank you.

Mr. HAYWORTH. Thank you, Mr. Rahall.

The majority side, any questions or comments?

The minority, the Gentleman from Michigan.

Mr. KILDEE. And I will later on be asking some questions on

H.R. 103, but not at this time.

Mr. HAYWORTH. OK. I thank you, sir.

The Gentleman from Hawaii, Mr. Abercrombie.

Mr. ABERCROMBIE. Thank you.

Mr. Smith, I want to make sure, are you for or against this bill?

I don’t mean you personally, but I mean does the administration

have a position?

Mr. SMITH. No, we have no real position on this bill.

Mr. ABERCROMBIE. If you have no position, does that mean you

are not opposing it?

Mr. SMITH. That means we are not opposing or supporting it. We

do have some concerns with the retroactive application of one provision of the bill.

Mr. ABERCROMBIE. Doesn’t it hurt your joints to be stretched that

far?

[Laughter.]

Mr. SMITH. I don’t run the whole department, nor the administration. I am here to give you our position.—

Mr. ABERCROMBIE. There is not a member in here who doesn’t

understand that. Thank you.

30

Mr. HAYWORTH. Actually, it is a part of a cultural exchange with

our friends from Switzerland, neutrality.

[Laughter.]

Mr. HAYWORTH. Other questions or comments at this point on

H.R. 103 for Mr. Smith?

If not, then, friend, it is time to turn to H.R. 3534. I know Mr.

Carson has more than a casual interest in this.

Mr. SMITH. Hopefully on my third strike.

This bill has a long and rather sordid legal history. I will skip

over that. It is in my testimony, but the chiefs of the tribes that

will come after me are much more knowledgeable than I am about

that history. I will let them speak to that.

What I would like to speak to is the status of the current

negotiations to try to settle this case, and the Department has appointed a team to attempt to negotiate a settlement of the Court

of Federal Claims cases that are currently pending. The team is

composed of representatives of the BIA, the Solicitor’s Office, and

the Bureau of Land Management.

Representatives of the team have met on numerous occasions

with the attorneys of the Cherokee, Choctaw, and Chickasaw Nations to reach agreement on the support of the Department of

Interior for the bill. Such discussions have centered on the valuation of elements of damages claimed by the nations.

The parties are working toward an agreement as to the amount

that can be recommended to Congress for settlement of the claim.

While agreement has not been reached, the parties are making

substantial progress on the agreement. At this time it appears

there exists substantial disagreement on only one element of damages. That element is the subject of ongoing meetings between the

Federal negotiating team and the nations’ attorneys. I would like

to emphasize here that I believe we are very close to an agreement.

The Court of Federal Claims is also interested in the settlement

of the pending claims, and has held a series of status conferences

to ensure that settlement discussions are proceeding. The next status conference is scheduled for June 19th. We believe the Congress

should not proceed in ratifying a settlement until the parties have

reached agreement on all issues.

We believe that continued discussion by the parties may result

in a negotiated settlement between the Department and the Nations. The settlement should achieve two goals: one, resolve the financial elements; and, two, resolve the quiet title issues.

In addition, the Federal negotiation team has discussed amending certain parts of the bill. The team will be working with the

Committee to clarify the description of lands disclaimed, the transfer of real property interest, particularly in the areas where the

navigation system was channelized across fee lands acquired by the

U.S. Army Corps of Engineers, and certain other matters, including

express waiver of certain future claims.

This concludes my prepared statement. I would be happy to answer questions.

[The prepared statement of Mr. Smith follows:]

31

Statement of Wayne Smith, Deputy Assistant Secretary—Indian Affairs,

U.S. Department of the Interior, on H.R. 3534

Good morning, Mr. Chairman and Members of the Committee. I am pleased to

appear before you today concerning the Department’s views on H.R. 3534, the ‘‘Cherokee, Choctaw, and Chickasaw Nations Claims Settlement Act’’. Since the subject of this legislation is pending litigation, I can only provide you with a background and status of the issue.

BACKGROUND

This case originated in the mid–1960’s when the Cherokee, Choctaw and Chickasaw Nations (Nations) filed suit against the State of Oklahoma for a declaratory

judgment regarding ownership of the Arkansas Riverbed. The case culminated in a

decision by the United States Supreme Court holding that ownership of the Arkansas Riverbed remained in the Nations. See Choctaw Nation v. Oklahoma, 397 U.S.

620 (1970). The Supreme Court did not attempt to designate the particular tracts

owned by the United States in trust for the Nations.

Thereafter, the United States District Court for the Eastern District of Oklahoma,

held that the State of Oklahoma had no further interest in the Arkansas Riverbed.

Again, there was no ruling as to the ownership of the particular tracts of land. The

Court transferred the ownership of certain oil and gas leases executed by the State

of Oklahoma to the Bureau of Indian Affairs (BIA) for the benefit of the Nations.

See Cherokee and Chickasaw v. Oklahoma, No. 6219–Civil (Judgment filed Jan. 21,

1977) and The Choctaw and Chickasaw Nations v. the Cherokee Nation, No. 73– 332–Civil (Judgment filed April 15, 1975).

The Nations then sued the United States arguing that the construction of the

Kerr–McClelland Navigation System was a taking by the United States of the

Tribe’s ownership of the riverbed. This case ultimately went to the United States

Supreme Court. The Court held that the Nations’ interest was subject to the navigation servitude retained by the United States. See United States v. Cherokee Nation

of Oklahoma, 480 U.S. 700 (1987). The Court stated that the United States has the

power to deepen the water or erect structures which it may believe to aid navigation.

What is not directly resolved by the 1987 case is the ownership of specific tracts

of dry lands owned by the Nations after avulsive changes in the river’s course, as

discussed by the Supreme Court in the first decision. After the 1970 decision, the

United States obtained a study done by Holway and Associates, a private company

located in Oklahoma City, Oklahoma. This study outlined the dry land areas that

were considered to be owned by the Nations. As a result of the Holway study, the

United States began leasing the minerals located in those areas. The BIA determined that there might be problems with the Holway study, and a second study was

done by the Bureau of Land Management(BLM). This study, like the Holway study,

examined the entire length of the riverbed.

In 1989, the Nations filed two lawsuits against the United States in the Court

of Federal Claims. See Cherokee Nation of Oklahoma v. United States ; No. 218– 89–L (Ct.Fed.Cl.) and Choctaw and Chickasaw Nations v. United States, No. 630– 89–L (Ct. Fed. Cl.), seeking damages from the United States for the failure to restore the Nations possession of the tracts claimed. The cases have been pending

since that time.

Quiet title lawsuits have been filed regarding certain tracts of land along the Arkansas River. The Cherokee Nation quieted title to one tract of land, in Cherokee

Nation of Oklahoma v. Mathis, Case No. 87–193–C (E.D. Okla. Judgment filed

Nov. 27, 1989). This judgment quiets title in a single tract of land containing

124.942 acres in Section 9, Township 10 North, Range 24 East, of Sequoyah County,

Oklahoma.

The United States initiated a quiet title lawsuit covering the claim areas in two

sections of the Riverbed. See United States v. Pates Farms, et al., Case No. CIV–

97–685–B. This lawsuit sought to quiet title to tracts in Sections 31 and 32, Township 11 North, Range 27 East, Sequoyah County, Oklahoma. The case was dismissed by the Court on technical grounds and has not been refiled because of the

pending settlement efforts.

CURRENT STATUS

The Department has appointed a team to attempt to negotiate a settlement of the

Court of Federal Claims cases. The team is composed of representatives of the BIA,

the Solicitor’s Office and BLM. Representatives of the team have met on numerous

occasions with the attorneys for the Cherokee, Choctaw and Chickasaw nations to

reach agreement on the support of the Department of the Interior for the bill. Such

discussions have centered on the valuation of elements of damages claimed by the

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Nations. The parties are working towards an agreement as to the amounts that can

be recommended to Congress for settlement of the claim. While agreement has not

been reached, the parties are making substantial progress on the agreement. At this

time, it appears that there exists substantial disagreement as to only one element

of damages. That element is the subject of ongoing meetings between the Federal

negotiation team and the Nation’s attorneys.

The Court of Federal Claims is also interested in the settlement of the pending

claims and has held a series of status conferences to insure that settlement discussions are proceeding. The next status conference is scheduled for June 19. We believe the Congress should not proceed in ratifying a settlement until the parties

have reached agreement on all issues.

COMMENTS ON H.R. 3534

We believe that continued discussion by the parties may result in a negotiated

settlement between the Department and the Nations. The settlement should achieve

two goals: (1) resolve financial elements, and (2) resolve quiet title issues. In addition, the Federal negotiation team has discussed amending certain parts of the bill.

The team will be working with the Committee to clarify the description of lands disclaimed, the transfer of real property interests, particularly in areas where the

Navigation System was channelized across fee lands acquired by the U.S. Army

Corps of Engineers and certain other matters, including an express waiver of certain

future claims.

This concludes my prepared statement. I regret that I cannot speak more specifically on the proposed legislation due to the litigation of the matter. We look forward

to working with the Committee on the settlement legislation once an agreement has

been reached by all parties involved.

Mr. HAYWORTH. Thank you, Mr. Smith.

The Committee is aware that the United Keetoowah Band of

Cherokee has concerns about whether this bill will adequately protect its interest. To what extent has the United Keetoowah Band

been involved in the development of the settlement agreement?

Mr. SMITH. I am not really aware of that. I can’t answer that.

Mr. HAYWORTH. Could you check on that?

Mr. SMITH. I can check and get back to you, I think. Sure.

Mr. HAYWORTH. We would appreciate that. Can the administration account for or summarize the values placed on the various elements of H.R. 3534 and how these values arrive at a total of over

$41 million?

Mr. SMITH. We have a chart I would be happy to submit to you,

rather than read it on the record, if you want me to, and give you

the amounts that the different positions—the amounts that were

agreed to. I would be happy to submit that to you. The only thing

that is outstanding, Mr. Chairman, is the sand and gravel cost, and

that is the one that is still under negotiation. All the rest of them

have been agreed to.

Mr. HAYWORTH. Mr. Smith, if the United States is unable to

reach a settlement with the three nations on the issues in

H.R. 3534, what would be the administration’s course of action?

Mr. SMITH. To continue litigation, but I don’t believe that is what

is going to happen. The litigation could go on probably 10, 15, 20

more years, and that is just not tenable for either party. Like I testified to, I believe that both the government as well as the nations

are very close to settlement, and I think you will hear from the nations that that is indeed the case.

Mr. HAYWORTH. Thank you, sir.

I turn to the Ranking Member. Any questions or comments?

Mr. RAHALL. No, thank you.

33

Mr. HAYWORTH. Any questions or comments? The Gentleman

from Oklahoma, Mr. Carson.

Mr. CARSON. No real questions for Mr. Smith, other than to

thank you for being here today and thank you for the ongoing negotiations, and I think you have answered a couple of questions I had

to Mr. Hayworth, and I look forward to talking about the issue

more here in a few minutes, as well. Thank you.

Mr. HAYWORTH. I thank the Gentleman from Oklahoma, who

was born in Winslow, Arizona. We always appreciate that, the

Sixth District of Arizona. For purposes of full disclosure, Mr. Rahall, we had to point that out.

The Gentleman from Michigan.

Mr. KILDEE. I will probably wait until Governor Anoatubby and

Chief Smith and Chief Pyle will be testifying, and have some statements and questions at that time.

Mr. SMITH. Thank you. They are far more knowledgeable than I.

Mr. KILDEE. Thank you.

Mr. HAYWORTH. Thank you. Any other questions or comments for

Wayne?

If not, then, Mr. Smith, we thank you, and we appreciate your

offer to stick around or have capable folks who work with you to

hang around, lend an ear and an opinion as the day continues

along.

Mr. SMITH. Thank you, Mr. Chairman. I will get someone more

capable than I to stick around. Thank you.

Mr. HAYWORTH. Thanks very much. Now, panel three. we will

call on Mark Macarro, the Chairman of the Pechanga Band of

Luiseno Mission Indians, and also James P. Avery, the Senior Vice

President of San Diego Gas & Electric. Gentlemen, if you would

join us front and center, we would appreciate it.

Again, gentlemen, we welcome you, and we reaffirm from the

Chair that your entire statements will be included in the record of

today’s proceedings, and we would appreciate a summarization of

those statements. Chairman Macarro, when you are prepared to

commence, we welcome you and we look forward to your testimony.

Thank you, sir.

STATEMENT OF MARK MACARRO, CHAIRMAN,

PECHANGA BAND OF LUISENO MISSION INDIANS

Mr. MACARRO. [Greetings in native language.] My name is Mark

Macarro. I am the Tribal Chairman for the Pechanga Band of

Luiseno Mission Indians, and I simply said greeting in our Luiseno

language. Hello, and it is good to be with all of you here today.

Thank you for being here, and hi to all my friends and relations

from here, and fellow Indians.

Mr. Chairman, I want to thank also Congressman Darrell Issa

for introducing this bill, and Congresswoman Bono and Congressman Calvert for cosponsoring this bill on behalf of our people. With

all my heart, I ask for your full support of H.R. 3476. Simply,

H.R. 3476 would temporarily protect unique and sacred lands

called the Great Oak Ranch. While we want the Great Oak protected forever, H.R. 3476 just keeps these special lands from utility

line condemnation until a final decision is made by the U.S.

Secretary of Interior on our pending fee to trust application.

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Last May we culminated a 20-year effort to purchase the 697

acres now known as the Great Oak Ranch, to join together the two

existing portions of our reservation. Our people have worked long

and hard over many years to reacquire these ancestral lands, so we

filed an application with Interior through the BIA to have the

Great Oak Ranch placed into trust as part of our existing reservation.

For the people of Pechanga, returning ancestral lands to our reservation is a duty that transcends easy expression by me here

today. For example, in 1875 our last aboriginal village for our

people, we were the subject of an eviction through a Federal decree

of ejectment. It was a forced eviction that took place in the

Temecula Valley. And for 7 years, until the establishment of our

reservation in 1882 by executive order, we had no lands.

So the rugged, undeveloped landscape of the Great Oak Ranch

is rich with spiritual, cultural, and archaeological resources. These

lands are where the Pechanga people came into being, and these

lands are where the Pechanga people will always be.

These lands are likewise important to the entire Temecula community and valley, and home to many irreplaceable resources, both

cultural and natural. These ranch lands include the former home

of Erle Stanley Gardner, author of the famed Perry Mason novels.

And the centerpiece of these lands is its namesake, the Great

Oak. Dated by UCLA at more than 1,500 years, it is heralded as

the oldest known coastal live oak, Quercus agrifola. It stands majestically at more than 96 feet in height with a massive trunk nearly 20 feet in circumference. Each branch, larger than most live oak

trunks, rises to touch the sky and then bends down to touch the

earth, creating a natural, serene, cathedralesque sanctuary. It was

underneath these great branches that Pechanga members held sacred ceremonies eons ago, and now at the dawn of a new century

the Pechanga people are once again gathering under the Great Oak

canopy.

Just days ago we were notified by the BIA Pacific Regional Office

of their intent to take the Great Oak Ranch into trust for the

Pechanga people, acknowledging the following, and I quote:

‘‘The sole purpose of the acquisition is the preservation and protection of Luiseno people’s natural and cultural resources. The

Pechanga Band is committed to protecting and preserving the invaluable and irreplaceable cultural resources of the Pechanga and

Luiseno people. The cultural resources located within the Great

Oak Ranch provide the Pechanga Band with unique opportunities

to protect and preserve such resources on property owned by the

Band itself.’’

These words from the Federal Government validate the emotion

in our hearts about the Great Oak Ranch, and that it should come

home to its native family.

It is our understanding, however, that this decision by the BIA

will be appealed by Sempra Energy so that they can run a massive

power line within feet of the Great Oak Ranch itself. And while

Interior’s Notice of Intent specifically states, I quote, ‘‘Sempra Energy’s proposed route across the Great Oak Ranch is only one of

several possible routes for a new 500,000-volt power line,’’ Sempra

has relentlessly pressed for this route. They have indicated to the

35

court, the Department of Interior, and the public that they will appeal the proposed Notice of Decision, and we know these precious

lands are vulnerable to their condemnation unless you, who are

charged with the protection of America’s natural wonders and

America’s first people, act to preserve the status quo.

Just as the Great Oak does not stand alone, the people of

Pechanga do not stand alone. Elected local officials, Republicans

and Democrats, business and community leaders, the elderly and

Boy Scouts, have all stepped forward to stand with this Temecula

Valley gem.

Our Members of Congress, Mr. Issa, Ms. Bono, Senators Diane

Feinstein, Barbara Boxer, and our State legislators, including State

Senator and Republican leader Jim Brulte, Assemblyman Dennis

Hollingsworth, and our Lieutenant Governor Cruz Bustamente,

have all stepped forward, and we now ask you to step forward.

Stand with them, stand with us, and stand with the Great Oak.

And Mr. Calvert, I add you to the list, too. Thank you. And I thank

the Committee. Thanks.

[The prepared statement of Mr. Macarro follows:]

Statement of The Honorable Mark Macarro, Chairman,

Pechanga Band of Luiseno Mission Indians

Mr. Chairman, I thank you and the other distinguished members of the Committee for the opportunity to present testimony on behalf of the Pechanga Band of

Luiseno Mission Indians (‘‘Tribe’’ or ‘‘Pechanga Band’’). I am here today to respectfully ask your support of H.R. 3476 which, if passed into law, would protect the

Great Oak Ranch property from condemnation until the Secretary of the Interior

makes a final decision regarding our pending fee to trust application for that land.

In this testimony, I will describe the efforts that my Tribe has taken to return

and protect the Great Oak Ranch as part of the Pechanga Indian Reservation. I will

also describe the unique and irreplaceable resources of this land, including the 1500

year old Great Oak, as well as other cultural, religious, archaeological and biological

features. I will outline the unanimous local support that we have received for our

trust application, and the ongoing efforts of San Diego Gas & Electric Company

(‘‘SDG&E’’) to impede and threaten the Great Oak Ranch with continuing threats

of appeals and condemnation of our property.

THE PECHANGA TRIBE’S FEDERAL PETITION TO TAKE THE GREAT OAK

RANCH PROPERTY INTO TRUST AS A LEGACY FOR THE TRIBE AND ITS

MEMBERS

On June 29, 1882, an Executive Order issued by the President of the United

States established the Pechanga Indian Reservation (‘‘Pechanga Reservation’’),

which is located within the ancestral and aboriginal lands of the Tribe. Additional

acreage has been added over the years, for a total of 4,396.44 acres. The Pechanga

Reservation consists of Federal trust property held for the beneficial use of the

Tribe. The Reservation is intended to be a permanent homeland in order to further

the Federal policy of Indian self-determination, including economic development and

self-sufficiency.

On May 15, 2001, the Tribe acquired thirty-one parcels totaling 688.73 acres, and

owns the property in fee. This land is located adjacent to the Reservation. These

parcels (also referred to as the ‘‘Great Oak Ranch’’ property) are located within portions of Sections 28, 29, 32 and 33, Township 8 South, range 2 West, San

Bernardino Base Meridian, in Riverside County, California. The property is located

approximately 5 miles southeast of Temecula, and is adjacent to the boundary of

San Diego County, California.

As part of its trust relationship with Indian tribes, the United States may take

title to property in trust for Federally-recognized Indian tribes pursuant to the provisions of Section 5 of the Indian Reorganization Act, 48 Stat. 985, Act of June 18,

1934, 25 U.S.C. Section 465, and Section 203 of the Indian Land Consolidation Act

of 1983, 25 U.S.C. Section 2201, et seq., as amended. The United States Department

of Interior has adopted regulations that specify the procedures and substantive

36

criteria used to process tribal applications to take land into trust for the benefit of

Federally-recognized Indian tribes. See 25 Code of Federal Regulations Part 151.

On December 31, 2000, the General Council of the Tribe, consisting of all adult

members of the tribe, duly adopted Resolution 001231–C. This resolution directed

the Tribal Chairman to submit an application to the United States to take the Great

Oak Ranch property into trust. This resolution also directly requested that the

Secretary approve the application. [See Exhibit A] For the people of Pechanga, returning these lands to our reservation is paramount. The rugged, undeveloped landscape of the Ranch is rich with spiritual, cultural, and archaeological sites. This

Ranch is Pechanga’s legacy.

In June 2001, the Tribe submitted an application to the United States Department of the Interior, pursuant to regulations found at 25 CFR a151 et seq., to take

the Great Oak Ranch property into trust by the United States for the benefit of the

Tribe. As outlined in the application, the Tribe’s intended use of the property involves the continuation of existing agricultural activities, maintenance and use of

three existing residences on site, and maintenance and preservation of the existing

Luiseno Indian cultural resources found throughout the site. [See Exhibit B]

Our property is home to many irreplaceable resources—both cultural and natural.

The primary goal in acquiring the parcels of land covered by the trust application

is to preserve and protect the ancestral homelands and cultural resources of the

Tribe, including many sacred sites, archeological sites, and items. These ranchlands

also include the historically significant former home of Erle Stanley Gardner, author

of the famed Perry Mason novels.

Yet the centerpiece of these lands is its namesake—The Great Oak. The Great

Oak is believed to be more than 1500 years old and is heraldedas the oldest known

coastal live oak tree. It stands majestically at more than 96 feet in height with a

massive trunk nearly 20 feet in circumference. Each branch, larger than most live

oak trunks, rise up toward the sky and then come down to land—creating a natural,

serene sanctuary. It was underneath these great branches that Pechanga members

held sacred ceremonies eons more than a hundred years ago. As we sit at the dawn

of a new century, the people of Pechanga are once again gathering under the canopy

of the Great Oak.

We believe the resources found on the Great Oak Ranch should be preserved and

remain within the Ranch. The sole purpose of the acquisition is the preservation

and the protection of Luiseno people’s natural and cultural resources. The Pechanga

Band is committed to protecting and preserving the invaluable and irreplaceable

cultural resources of the Pechanga and Luiseno people. The cultural resources located within the Great Oak Ranch provide the Pechanga Band with the unique opportunity to protect and preserve such resources on property owned by the Tribe

itself. These words spoken by the Federal Government validate the emotion in our

hearts that the Great Oak Ranch should come home to its native family.

Once the Great Oak Ranch property is accepted into trust by the United States,

it will become part of the Pechanga Reservation. The Tribe will exercise powers of

self-government, including civil regulatory jurisdiction, to protect the unique archaeological, biological and cultural resources, as well as the historic and sacred sites

on the Great Oak Ranch.

THE TRIBE RECEIVES UNANIMOUS LOCAL SUPPORT FOR ITS TRUST

APPLICATION

The people of Pechanga do not stand alone in their commitment to protect the

Great Oak Ranch. From elected officials to business and community leaders, many

have stepped forward to ensure the preservation of this Temecula Valley gem. Our

Federal representatives in Congress Darrell Issa and Mary Bono; Senators Barbara

Boxer and Dianne Feinstein; representatives from the state including State Senator

Jim Brulte and Assemblyman Dennis Hollingsworth; and the Save South Riverside

County Association, which represents the citizens of Riverside County, and the

Temecula Valley Winegrowers Association, a vital part of the Valley’s tourism and

business sectors. Support for the Great Oak Ranch has transcended traditional geographic and political lines and serves as a symbol for all the people of Temecula

Valley. [See Exhibit C]

SDG&E’S THREATENED CONDEMNATION ACTION AND FURTHER

LITIGATION

The Tribe needs legislation to protect the fee-to-trust application process from

SDG&E’s threatened use of eminent domain powers. The Tribe is concerned that

SDG&E continues to threaten the initiation of condemnation proceedings against

the Great Oak Ranch property, even though SDG&E has not received a

37

determination from the California Public Utilities Commission that the Valley Rainbow Interconnect Project is necessary or in the public interest.

On March 23, 2001, SDG&E filed an Application for a Certificate of Public Convenience and Necessity and its Proponent’s Environmental Assessment for the Valley–Rainbow 500-kilovolt (kV) Interconnect Project with the California Public Utilities Commission (‘‘CPUC’’). The CPUC application identifies both a preferred and

proposed alternative route for the transmission line. The route preferred by SDG&E

is along the easternmost and a portion of the southern-most sides of the Pechanga

Indian Reservation, adjacent to the Cleveland National Forest. One of SDG&E’s

seven ‘‘alternative’’ routes pass through the Great Oak Ranch property, threatening

several archaeological sites and the root system of the Great Oak tree.

California public utilities have historically had broad powers of eminent domain.

This has been necessary so that utilities could construct necessary improvements to

their utility systems. However, as the concept of utility deregulation developed in

California, the California Legislature determined that certain limitations would

need to be placed upon the utilities’ use of this power of eminent domain, in order

to prevent the inappropriate use of this power as a competitive tool. In order to prevent the abusive use of this power, the California Legislature enacted Public Utilities Code Section 625. [See Exhibit D]

As enacted, the law requires (with certain limited exceptions) public utilities to

obtain prior approval by the CPUC before any eminent domain powers may be exercised by a public utility for competitive purposes.

The section specifically provides a procedure for the review by the CPUC of condemnation proceedings initiated by public utilities. The public utility must file a petition or complaint, and provide personal notice to the owners of the property that

is to be condemned. Before making a finding pursuant to this subdivision, the Commission must conduct a hearing in the local jurisdiction that would be affected by

the proposed condemnation.

SDG&E has argued that this section does not limit its ability to condemn the

Great Oak Ranch. Last year, SDG&E initiated pre-condemnation proceedings in

Riverside Superior Court to survey the property of 320 property-owners along a

1,000 foot-wide corridor for its proposed alternative route. In this recent related litigation against 320 landowners, SDG&E argued that the proposed Rainbow–Valley

Interconnect Project is not a ‘‘competitive service,’’ and therefore a Commission finding under Section 625 (a)(1)(A) is not required. SDG&E has also argued that the

Project is required to fulfill a CPUC ordered obligation to serve (that would satisfy

the exception to the requirement for a hearing found in (a)(1)(B) of Section 625).

Both assertions are, at best, premature, as the CPUC is considering SDG&E’s Application for a Certificate of Public Convenience and Necessity at this time.

SDG&E, has repeatedly threatened and continues to threaten the initiation of

eminent domain proceedings for purposes of a right of way. In a August 7, 2001,

letter from Carolyn F. McIntyre, SDG&E Vice–President to California

Assemblymember Rod Pacheco, SDG&E took the position that CPUC approval of

the project was not a condition precedent to bringing a condemnation action [See

Exhibit E]:

In response to the legal questions raised in your letter, SDG&E has the

legal authority to enter private land to conduct these activities [notify 320

property owners along a 1,000 foot wide transmission line study corridor]

before the CPUC approves the project.

In Pacific Gas & Electric Co. v. Parachini (1972) 29 Cal. App. 3d 159, 166,

the court stated that: ‘‘...a certificate from the Public Utilities Commission

is not a condition precedent to the acquisition of property by a regulated

utility.’’ Similarly, in Pacific Gas & Electric Co. v. Hay (1977) 68 Cal. App.

3d 905, 912, the court reiterated that ‘‘...in any event, Parachini supports

the view that agency approval is not a condition precedent to the commencement of a condemnation proceeding....’’

On March 21, 2002, the Bureau of Indian Affairs, Pacific Regional Office issued

a notice of decision to have the Great Oak Ranch property taken into trust for the

Tribe (‘‘Notice of Decision’’). [See Exhibit F] The Notice of Decision found that the

Tribe established the need for additional land for purposes of exercising governmental jurisdiction and assuring the long-term protection of the Luiseno Mission Indians’ cultural resources and in the enhancement of tribal self-determination. The

Notice of Decision also found that the Tribe established the need to protect the biological resources of the Great Oak Ranch property, in addition to the Great Oak,

elderberry bushes, buckwheat and sage species. The Notice of Decision noted that

‘‘Sempra and its subsidiary, SDG&E, oppose the acquisition because the subject

property is a ’possible’ route for a new 500,000-volt power line,’’ but granted the

38

Tribe’s application because the Tribe had made the required showing of need under

the regulatory process in 25 CFR Part 151.

It is our understanding that this decision by the BIA will be appealed by SDG&E

given the possible routing over the Great Oak Ranch for its proposed Valley–Rainbow Interconnect project. [See Exhibit G] After devoting years to secure these lands

we are disappointed that our efforts may be further delayed. The latest evidence of

SDG&E’s intentions were outlined in a March 29, 2002, letter from Steven C. Nelson, Esq. to Michelle Cooke, Administrative Law Judge. In that letter, SDG&E stated its position to oppose the Tribe’s trust application by appealing through the administrative process:

In these appeals, SDG&E will explain, as it has done so in its other filings

at BIA, that SDG&E is not opposed to the land being taken into trust so

long as a right-of-way is preserved for the Project. SDG&E also will reiterate that it remains open to further discussions of these issues with the

Tribe.

SDG&E continues to threaten more litigation and the right to bring a condemnation action against the Tribe for the power to take a right of way corridor over the

Great Oak Ranch property. The Tribe needs this legislation to preserve the status

quo until its trust application has been fully decided on the merits, and all appeals

have been exhausted.

CONCLUSION

Mr. Chairman and Members of this Committee, thank you for granting me the

opportunity to represent the Pechanga Band of Luiseno Indians today. The Great

Oak Ranch represents the return of our homelands and its resources to our people

and our community. But most importantly, protection of the Great Oak Ranch allows us to preserve and share Pechanga’s history with generations to come. I respectfully request the expeditious passage of H.R. 3476.

Mr. HAYWORTH. Mr. Chairman, we thank you for your testimony

and your awareness of the atmospherics with us on the dais.

Mr. Avery, welcome. Your testimony, please, sir.

STATEMENT OF JAMES P. AVERY, SENIOR VICE PRESIDENT,

SAN DIEGO GAS & ELECTRIC

Mr. AVERY. Thank you. This is an emotional issue, there is no

doubt about it, but in trying to sum up my testimony, SDG&E is

trying to preserve reliability that we provide to the people of Southern California.

The region of San Diego is an area that is highly constrained. We

rely upon two transmission corridors, one that extends to the east

over toward Palo Verde nuclear generating plant, one that extends

up to the north through the San Onofre nuclear generating facility.

Essentially, we are in a bottlenecked area.

There are no other routes available. We have identified three potential routes. One of those routes would require us to work or to

go through the Pechanga Reservation. In our early discussions with

them, they have told us they are opposed to that route. We have

identified two other routes. One of those would go through the

Great Oak Ranch. We did also have one other route which would

require us to condemn homes and businesses.

Now, we are in a situation where in moving forward on the Great

Oak Ranch, it is not something that we want to in any way interfere with their right to take this land into trust. In fact, we are

supportive of that. All we are asking for is that a small piece of

this land be set aside until a final determination is made by the

Public Utilities Commission that the need is verified and that we

can move forward.

39

We have not taken any action to condemn this land, nor will we

take any action until the State determines there is a need and tells

us to move forward with that. Any action under this bill would essentially circumvent or override the State’s authority to move forward with condemnation.

Now, as for the tree itself, it is a beautiful tree. I am not going

to deny that. It is magnificent. Now, as for where we would locate

our line, we are more than willing to work with the Pechanga Reservation and anyone else who can give us the ability to move the

line further away. As to what we have proposed, we are roughly

a tenth of a mile from the tree. We do not believe we will have any

impact on this at all.

I think I would also like to point out the fact that essentially we

believe this bill is not necessary. We believe that we should be allowed to continue. Allow the Indians to move forward with their request to take this land into trust.

As my colleague here has pointed out, we will be appealing the

BIA’s action to take this into trust, but it is not because we don’t

think the land should go into trust. All we are asking for is a corridor through this land, and that is it.

Thank you.

[The prepared statement of Mr. Avery follows:]

Statement of James Avery, Senior Vice President, San Diego Gas &

Electric, on H.R. 3476

Good afternoon, my name is Jim Avery, Senior Vice President of San Diego Gas

& Electric (SDG&E). I am responsible for managing all aspects of electric transmission for SDG&E, a distribution utility that provides service to 3 million customers through 1.3 million electric meters and 775,000 natural gas meters in San

Diego and southern Orange counties. SDG&E is a California Public Utilities Commission (CPUC)-regulated subsidiary of Sempra Energy, a San Diego-based Fortune

500 energy services holding company. I appreciate the opportunity to provide testimony on H.R. 3476.

SDG&E opposes H.R. 3476. If enacted into law, this legislation would preempt

the laws of the State of California by overriding the state’s authority to condemn

and compensate private landowners for land that is needed for a public purpose.

More specifically, H.R. 3476 would exempt a parcel of private land that the

Pechanga Band of Luiseno Mission Indians owns in fee from the operation of state

condemnation law until a final decision is reached on the Tribe’s request to take

the land in question into trust. It would have the practical effect of blocking indefinitely SDG&E’s construction of the Valley Rainbow Interconnect, a major new

transmission project that will serve as a critical link in the Southern California electricity system, providing increased reliability and access to electricity supplies for

customers throughout southern California.

H.R. 3476’s proposed preemption of state law authorities raises serious

Federalism concerns that go beyond the facts of this case. California has only recently been able to end the need for instituting blackouts and bring spiraling prices

under control, and has a long way to go before it will completely emerge from a severe energy crisis that threatened the State’s economic future and well being. Although the crisis was caused by many factors, a lack of transmission and an insufficient supply was identified as a leading contributor. Constraints on electricity production and transmission in California continue to create uncertainties in the marketplace; passage of H.R. 3476 would send the wrong message to citizens and businesses in California. The bill would hold out a single parcel as being above state

law and off-limits for a critical right-of-way that is needed to help resolve California’s uncertain electricity situation.

In addition to raising serious questions about the relative role of Federal and

state authorities in installing needed electricity infrastructure in California and

other states, H.R. 3476 represents an unnecessary and unwise overreaction to a

land use conflict between the Tribe’s desire to convert fee land into trust land and

SDG&E’s need to obtain a suitable right-of-way for its Valley Rainbow Interconnect

project. This bill is the latest in a series of attempts to legislatively circumvent or

40

influence the regular process of administrative review and decision. SDG&E does

not oppose the Tribe’s request to take the Great Oak Ranch property into trust, so

long as a right-of-way corridor is identified and set aside for public use at the same

time. The Company has made it clear that it is interested in moving forward with

a consensual resolution of its land use conflict with the Tribe; there is no need to

preempt a condemnation action that may never arise. The siting of this line would

not be an act by SDG&E alone, but would be the result of a multi-year review by

state agencies to identify the need and the optimum resolution. So no condemnation

is pending. SDG&E is concerned that removing any possibility of such an action in

the future, however, would send a message to the Tribe that there is no need to

participate in discussions or negotiations on this issue. Indeed, SDG&E believes

that Congress should encourage the Secretary of the Interior to assist in resolving

this conflict, rather than helping to create more barriers to a common-sense solution

to this matter.

BACKGROUND AND NEED FOR THE VALLEY RAINBOW INTERCONNECT

TRANSMISSION PROJECT

The Valley Rainbow Interconnect project is a proposed 500,000-volt electric transmission line that would connect the existing Valley substation in Riverside County

to a new substation 30 miles south in the community of Rainbow in San Diego

County. The Interconnect will provide an important new link between the growing

San Diego market and the rest of the State. The California Independent System Operator (ISO), the agency responsible for managing and planning the California

transmission grid, has confirmed the important role that the Valley Rainbow Interconnect will serve in California’s electricity system. I have attached the ISO’s letter

of support from September 2001.

The business community in the greater San Diego region also recognizes the importance of the Valley Rainbow Interconnect project. In a November 2001 letter (attached for the record), the San Diego Regional Chamber of Commerce, the San

Diego Regional Economic Development Corporation, and the San Diego–Imperial

Counties Labor Council agreed that the proposed transmission line is ‘‘critical to

helping to solve the long-term energy demands of the San Diego region’’ and would ‘‘help maintain a strong regional economy and job base for many years to come.’’

SELECTION OF A RIGHT–OF–WAY CORRIDOR FOR THE VALLEY RAINBOW

PROJECT

San Diego Gas & Electric studied more than 80 different routes and hundreds of

miles of alternatives to determine the corridors for its Valley Rainbow project that

would have the least impact on the residents, businesses and environment in Riverside and San Diego counties. Three primary corridors in the southern region of Riverside County emerged as potential alternatives. The first route, identified as the

preferred route, is located on the southern and eastern boundary of the Pechanga

Reservation. This route would have the least impact on the environment and communities of Southwest Riverside County. A second route was also identified; it

would go through a large undeveloped parcel of land known the Great Oak Ranch,

west of the city of Temecula. This route appeared to be feasible, and potentially desirable, because it traversed private land, and it raised fewer environmental concerns than the third potential option. The third route, situated west of Interstate

15, has been recognized as problematic because it would traverse an environmentally sensitive area and, in addition, would enter populated areas, triggering the

need to remove several businesses and homes.

Based on the outcome of its extensive route analysis, San Diego Gas & Electric

initially sought Tribal approval to site the Valley Rainbow line over the preferred

route along the southern and eastern edge of the Pechanga Reservation. In June

2000, we met with Chairman Mark Macarro to discuss the Valley Rainbow Interconnect and our desire to acquire an easement along the eastern and southern borders of the Pechanga Reservation to locate the transmission line. During the following year, numerous meetings were held with the Pechanga Tribal Council, between Ed Guiles, CEO of the Sempra Energy Utilities and Chairman Macarro, and

with many other members of the Pechanga Tribe.

Unfortunately, SDG&E’s efforts to negotiate a right-of-way for the preferred route

was unsuccessful, and the Tribal Council passed a resolution opposing the proposed

siting of the Valley Rainbow Interconnect line along the preferred route. Because

of the Tribe’s opposition, SDG&E focused its attention on the second route through

the privately owned Great Oak Ranch, adjacent to the reservation. In March 2001,

SDG&E filed an application with the CPUC for approval of the Valley Rainbow line

and the Great Oak route.

41

In April 2001, SDG&E once again met with the tribe to discuss the possibility of

using the preferred route over the proposed route. In May 2001, shortly after

SDG&E indicated that it would be proceeding with the Great Oak route for the Valley Rainbow project (rather than the preferred route, which was opposed by the

Tribe), the Pechanga Tribe purchased the Great Oak Ranch. When the Company

learned that this private property had changed hands, we continued our dialogue

with the Pechanga Tribe, making a formal offer for an easement over the Great Oak

property and requesting another meeting between Mr. Guiles and Chairman

Macarro to explore potential solutions. On August 14, 2001, Mr. Guiles and members of SDG&E management met with Chairman Mark Macarro, John Macarro and

Tribal Council Members at the Great Oak Ranch to discuss alternatives. Shortly

thereafter, we were informed that the Tribe opposed the siting of the Valley Rainbow Interconnect on the Great Oak property, much as it had previously opposed the

inclusion of such a transmission corridor on tribal lands.

21SDG&E’S INTEREST IN REACHING A NEGOTIATED RESOLUTION OF THE

RIGHT–OF–WAY ISSUE

During the summer and fall of 2001, the Tribe sponsored an Interior appropriations rider that would have overridden statutory authorities and mandated that the

Great Oak Ranch be taken into trust without undergoing the required review, thereby blocking the proposed use of a narrow corridor on the property for the Valley

Rainbow transmission line. That rider was removed by the House–Senate Conference Committee. A subsequent effort to offer a rider similar in approach to

H.R. 3476 to the Defense appropriations bill did not advance. Throughout these efforts, SDG&E has continued to emphasize that the Company does not oppose the

Tribe’s request to take additional land into trust, so long as the State’s legitimate

needs for a narrow transmission corridor are accommodated. For its part, SDG&E

has not sought a legislative remedy, but instead has consistently recommended that

the corridor issue be addressed, and resolved, through negotiations among the parties, under the auspices of the U.S. Department of the Interior.

Earlier this year, the Interior Department agreed to seek a negotiated resolution

of this matter. Indeed, the Department took the initiative and arranged for face-toface negotiations among the parties in a meeting that was scheduled to take place

in southern California on March 20, 2002.

Regrettably, a few days before the March 20 negotiating session, the Tribe informed the Interior Department that it would not participate in the scheduled talks,

and the Interior Department was forced to cancel the meeting. The very next day,

on March 21, 2002, the Bureau of Indian Affairs regional office in Sacramento, California released a Notice of Decision to accept the Great Oak Ranch in trust for the

Pechanga Indians without any hold-back of a transmission corridor, and without

any effort to seek a negotiated resolution of the issue.

SDG&E is appealing BIA’s decision. The decision contains serious flaws, particularly with regard to its mischaracterization of the real availability of alternative

routes for the siting of the Valley Rainbow Interconnect. Even more importantly, the

decision was issued without apparent regard for serious public policy issues raised

by the conflict between the Tribe and SDG&E, and prior to the convening of a dispute resolution process among the parties. SDG&E believes that the decision

should, and will, be reversed on appeal. The Company continues to prefer, however,

that the corridor issue be addressed through Interior-led negotiations with the

Tribe. If the Department is to take any action on the pending action, it should take

the land into trust with the reservation of a corridor for the Valley Interconnect

transmission line, so that the land in trust process is not used inappropriately to

block this needed project.

CONCLUSION

In summary, SDG&E opposes H.R. 3476 and asks that the Committee take no

action on the legislation. SDG&E renews its request to Congress, and to the

Secretary, to help it negotiate a resolution of the existing conflict in a manner that

will meet Tribal needs, while also addressing the state’s needs for a new right-ofway for the installation of the Valley Rainbow Interconnect transmission project.

[Attachments to Mr. Avery’s statement follow:]

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43

44

45

46

Mr. HAYWORTH. Thank you, Mr. Avery.

Chairman Macarro, does the Pechanga Tribe have any plans for

development of any kind on the Great Oak Ranch property?

Mr. MACARRO. No, we don’t. As stated in our application to

Interior/BIA, we stated or have designated there is no change of

use in the property, and the intended use and purpose is to preserve and protect the resources that are there.

The cultural resources in particular are also very significant.

Along the base of all the foothills there are significant old village

sites, dark midden soil area, cremation areas and associated sacred

sites, one key site which we believe it appears the proposed transmission line would go over, and a tower would come either near or

on that site.

I think this information, from what I recall, actually comes from

SDG&E’s own cultural resource sensitivity maps, which I would

like to introduce into the record. I understand it will be open for

another 2 weeks.

Mr. HAYWORTH. Without objection, we would welcome that. Just

one follow-up, and for purposes of the record, Mr. Chairman, does

the tribe plan to use the Great Oak Ranch for gaming purposes or

any purposes other than what you have just outlined?

Mr. MACARRO. No, the tribe does not. Half a mile down the road,

if you have the briefing book in front of you, in Tab 1 there is an

aerial photo and then there is a graphic, a two-color graphic map.

The smaller trapezoidal piece of land, it is almost a square, not

quite, is labeled as the Kelsey tract, and our casino, our gaming operation, is on that piece of land currently.

We are nearly complete on a major expansion of that operation.

In fact, that expansion will open up at the end of June, and we

have invested over $100 million of revenue and over $150 million

in loan dollars for that project. It is a substantial facility. We are

not going to be building a separate facility or having any ancillary

gaming purpose type things just a half a mile up the road from

that facility. Everything is integrated on existing tribal lands.

Mr. HAYWORTH. Thank you, Mr. Chairman.

Mr. Avery, of the numerous possible routes for a new 500,000-

volt power line, why has SDG&E chosen this route, one that initially was not preferred by your company, by your utility, as we understand it?

Mr. AVERY. OK, let me just set the record straight. There are

only three routes that we have identified. The first route is on existing reservation land, and we do not have any rights to that, absent the reservation being willing to enter into an agreement where

we could have a right-of-way. That is the preferred route.

The proposed route is the route that goes through the Great Oak

Ranch. The third route is further west from there, and that would

require us to condemn about seven homes and two businesses. And

we felt that the best way to proceed would be to go in an area

where we did not have to condemn and tear down people’s homes,

and yet we would still be willing to work with the exact routing

with the people who own the land, to essentially accommodate

their needs.

47

Mr. HAYWORTH. But, to reiterate and amplify, Mr. Avery, the initial preferred route was through reservation land that obviously

the tribe controls, correct? That was the— Mr. AVERY. That is correct.

Mr. HAYWORTH. And that is seen as a profound difficulty to work

that out, the preferred route?

Mr. AVERY. They have told us that they will not negotiate with

us on that.

Mr. HAYWORTH. OK, sir.

Other questions for the Chairman or for Mr. Avery? The Gentleman from West Virginia.

Mr. RAHALL. Thank you, Mr. Chairman.

Just hearing this debate and the testimony that has just been

given reminds me of many a power line fight I have been through

in my home State of West Virginia, so I am no stranger to power

lines wanting to put their lines across sacred sites in West Virginia. Our sacred site is the New River, and the power company

proposed some years ago to put a power line across the New River,

and we were able to stop them.

I think what I found out through that fight is, sometimes the

utility companies just need a little nudge. I think they can find an

alternative route, maybe not the one that was their No. 1 priority.

Sometimes in life we don’t always get our No. 1 priorities. But they

can find another route that will get the job done, but is just not

their No. 1 preferable routing.

Mr. HAYWORTH. Thank you, Mr. Rahall.

The Gentleman from California, Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman.

Mr. Avery, I understand that there are three routes that you are

most considering, but in consultation and conversation with executives at your company, the question of a further west alignment,

one that would go through the national forest nonwilderness area,

that would also line up with the proposed LEAPS project, what

would be your reasons for not considering that, even though it

wasn’t in your original consideration?

Mr. AVERY. Essentially, it would require us to go through Federal land, and we do not feel we have the opportunity or option to

pursue that.

Mr. ISSA. So, if I can summarize what I am hearing here today,

not asking for a route going on the edge, skirting a national forest,

because obviously the alignment, it would potentially go either in

the national forest or on the edge of it, is rejected even though it

is one that could potentially have been on the list of those you

would like to do but may not be able to get approval for, and yet

one going through other Federal land which happens to belong to

the Pechanga Band was put on.

Now, I am trying to understand why Federal land belonging to

Indians is acceptable to put onto an alignment, but Federal land

belonging to the people in general, and by definition available for

the public good, wasn’t considered. I mean, doesn’t there seem to

be something where in retrospect you would say, ‘‘Jeeze, we should

have put all those possible areas on. If we were going to take Federal land or would like to take Federal land, shouldn’t we list it

all?’’

48

Mr. AVERY. I think we have to look at opportunities that we can,

through the process we go before in California, review all available

options to us, and we did not view that as an available option to

us.

With respect to other interveners who have participated in the

process in the State, they have identified the opportunity to move

forward with another corridor. The CPUC has the right to review

any and all opportunities that are presented before it, and review

those. At the same time, they have the right to reject any opportunity or any area that we have presented.

With respect to the corridors that we present, we have an obligation to pursue areas that we believe are viable. We are to present

those to the CPUC for their jurisdiction to determine where is the

best routing, and then once approved by them we would move forward with acquiring that land. We did put on our application that

the preferred route would be to work with the Pechanga Indians

to see if we could secure a route through the reservation.

And this project, by the way, goes back well over 20 years. This

is not something new for San Diego Gas & Electric. Roughly 2

years ago we first approached the tribe with the notion of trying

to work with them in going through the reservation. That is when

we identified that as the preferred route. The proposed route was

land that was owned in fee simple by another party. It wasn’t until

after we had moved forward with our application that the

Pechanga acquired that land.

Mr. ISSA. Well, one question. On the proposed route, not preferred, when it was held fee simple by private parties for more

than 20 years, did you approach those parties to get an easement?

Mr. AVERY. Again, the process we go through is to identify the

need and work with the CPUC on routing, and then at that point

in time move forward with the acquisition of land. It isn’t to acquire the land in advance of the identification of need.

Mr. ISSA. So the answer would be no?

Mr. AVERY. That is correct.

Mr. ISSA. In the case of the other route, the one you said would

disrupt several houses and I think, I believe you said two businesses, what would be the difference in the cost of acquisition between Pechanga’s land as you would calculate it and paying a fair

price to each of those people you would ask to relocate?

Mr. AVERY. Off the top of my head, I don’t know. I imagine it

would be a small percentage of the overall project cost.

Mr. ISSA. So it would be fair to say that you would be in a position to pay a price to these few homes and two businesses where

they would be delighted to relocate, since in all likelihood there is

nothing sacred about their business location.

Mr. AVERY. I am not aware or familiar if you are aware of ever

going through a condemnation proceeding with a house or a business, but in my case I have never come across anyone who is delighted to have their house condemned.

Mr. ISSA. Well, no. I appreciate that, but I come from a business

background, as you do, Mr. Avery, and we always feel that something which money can resolve amicably is a business decision, and

something which cannot be resolved and thus has to be taken care

of in the courts or administratively is a problem.

49

And I am getting the feeling that for absence of a business decision to purchase the other tract, which you could do without condemnation—you could choose to make offers to these people and

purchase and pay them a very fair sum—you have decided instead

to go through an administrative route, which in this case asks for

relief that you wouldn’t get from a willing seller. Is that fair to say?

Mr. AVERY. No, I don’t believe that is a fair characterization.

What we have presented is the proposed route and an alternate to

those proposed routes. It is up to the CPUC to decide which they

want, which route they want us to pursue. Once they have identified that, we will move forward with that course of action and try

in good faith to negotiate with every land owner. With respect to

condemnation, that is really the last right we move forward with.

But right now that right is vested in the State to tell us to move

forward.

Mr. ISSA. It does seem like you are here before you have got the

State right, asking for us to hold off doing something which, if we

had never taken this land from the Pechanga more than 100 years

ago, they would have had and this wouldn’t be under debate here

today.

Thank you, Mr. Chairman.

Mr. HAYWORTH. The Gentleman’s time has expired.

The Gentleman from California, Mr. Miller, do you have any

questions or comments?

Mr. MILLER. No.

Mr. HAYWORTH. The Gentleman from Michigan.

Mr. KILDEE. Basically you have a third route which Mr. Issa referred to, where there is about seven homes and one or two businesses. It would seem to me that the piece of land you wish to run

your power lines through, we have numerous cultural and archaeological sites. Hard to put a value on that, but they are things that

once changed, forever lose their cultural and archaeological value.

It would seem to me that you should really be looking at that

third site. No one likes to have their land condemned, whether it

be an Indian tribe owning some land in fee which they hopefully

will get into trust, or homeowners, but it would seem to me that

you should pursue that third site because you would not be destroying or modifying archaeological and cultural sites, which I

think is very, very important.

And I think that as a—I mean to say this in a very sensitive

way—as a representative of your company, you should probably go

back and tell your superiors that there is kind of a bipartisan problem down here for your company.

Mr. AVERY. If I may, just again to fulfill or fill your record here,

there are two commercial establishments which I mentioned. There

are seven private residences. There are 79 residences that would

be within 500 feet of this third alternative. There is an elementary

which is within 350 feet of the third alternative.

There are 3.7 miles of the Santa Margarita Ecological Reserve

which would have to be bisected by this third alternative. It would

also impact important habitat for nearly 50 sensitive species, including two species that are on the endangered species list. One is

the Keno checkerspot butterfly, and one is the Stevens kangaroo

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rat. So it is not as if the third route is just affecting just people

and homes.

Mr. KILDEE. But it is a possible route, and I think that very often

we at this Committee, looking over the history of the taking of

Indian land, the loss of Indian land—so much Indian land has been

lost. My own State of Michigan, it is just incredible. I have got certain tribes, their sovereignty reaffirmed, not granted, it is a retained sovereignty, and they were down to zero acres of land. The

land was taken away from them illegally, extralegally, or just gone.

But I think that this land which the tribe is seeking to get back

full control over, sovereignty over—they own it in fee right now— that this Committee is inclined to try to undo some of those things

in the past that were unfair to the tribes, and I think that we are

more likely to support putting this land back under trust with full

sovereignty by the Pechanga Tribe. So I think you should probably

go back and talk to your company and say that there is a problem

and that this problem is in the minds of both Democrats and Republicans down here, and that you possibly should look at that

third site or maybe even a fourth site. But I think you really have

a problem with this Committee.

Thank you, Mr. Chairman.

Mr. HAYWORTH. Thank you, Mr. Kildee.

The Gentleman from California, Mr. Calvert.

Mr. CALVERT. I thank the Chairman.

I am going to go back to the route that you didn’t apply for, the

Cleveland National Forest. Metropolitan Water District worked toward and got an easement, working through the environmental

documentation, to put a water line to serve south Orange County

in the future, to put a filtration plant in the Corona area and move

a significant water line to service future water needs in that part

of south Orange County.

And the fact of the matter is that easements are given in national forests in a nonwilderness area, and again I would respectfully say to San Diego Gas & Electric, whoever made the determination unilaterally not to even consider that, I think made an

improper decision, because I think many of us would help San

Diego Gas & Electric work on that, that we can potentially mitigate for any environmental problems. You are going to have that

wherever you put that line, on any of the alternative routes.

It seems to me that the least opposition that you would have, as

far as the general public and the Pechangas and everyone else,

would be to pursue that route. And I know that I would be willing

to try to assist you with the administration and with the Department of Agriculture and others to pursue that route. And I would

again say that you didn’t even take serious consideration to take

a look at that. Is that correct?

Mr. AVERY. No, sir, that is not correct. Underneath the provisions of the Federal act that have the land for the Federal Government, it requires us to look at the use of private land first.

Now, with respect to the development of a hydroelectric facility,

if we were doing generation, for example, then we would have the

right to look at transmission corridors through the national forest

as part of that project, but we have no project for the development

of a hydroelectric facility.

51

And with respect to the LEAPS project that Mr. Issa referred to,

that is a project that has been proposed and at this point in time

is not moving forward. Should that project move forward and provide us an opportunity, that would perhaps free up or create another route, but at this point in time we do not see that as an option for ourselves.

Now, should you be able to, through an act of Congress, provide

us that route, we would love to have that, and I am more than willing to work with you, perhaps, and others to try to create or find

that opportunity. But for us as a public utility working in the State

of California, we do not have that option.

Mr. CALVERT. Well, I would say that we ought to take a look at

pursuing that option. You may have a better opportunity through

an act of Congress than the present route that you are taking a

look at.

Mr. AVERY. I would also suggest, though, that should we look to

move on a national forest, I think there would be a lot of opposition

from a lot of different groups.

Mr. CALVERT. Well, I think you are going to have, in my opinion

you are going to have less opposition with that route than you

would with the route you are pursuing at the present time.

Thank you.

Mr. ISSA. Would the Gentleman yield?

Mr. CALVERT. I will yield my time.

Mr. ISSA. I would like to echo my colleague’s statement just very,

very briefly and say that should you give us all of the possible

alignments that you would look at from a standpoint of topography,

and at least give us the opportunity to have the Federal Government explore them to find out whether or not appropriate mitigation for taking of that or using of that land would be possible, it

would at least untie our hands here in the Federal Government in

trying to work toward your goal of getting this power line.

Right now, as someone who this power line is going through my

district, I was never given those tools. And I will mention that

when I asked one of your executives, in the case of the LEAPS one,

they said, ‘‘Well, the real problem is, it would take until 2007,’’ but

that is because it was never considered. You never thought outside

the box 20 years ago.

I yield back.

Mr. HAYWORTH. Thank you, Mr. Calvert.

Any other questions or comments from either side for these two

witnesses?

If not, gentlemen, we thank you for your time and attendance,

and we appreciate you making your perspectives part of our record.

You are excused. Thank you. And let me thank the Gentleman

from California for joining us.

Mr. HAYWORTH. Now we are going to move to panel four, as we

move to a more complete discussion of H.R. 103. Included on panel

four: Joe Garcia, Tribal Council Member from the Pueblo San

Juan; Deron Marquez, the Chairman of the San Manuel Band of

Mission Indians; and Keller George, President of the United South

and Eastern Tribes.

52

As those gentlemen come forward, the Chair would like to offer

some perspectives and then turn to the Ranking Member to talk

more about H.R. 103.

H.R. 103 amends the Indian Gaming Regulatory Act to prohibit

tribal-State gaming compacts from including or being conditioned

on any agreement containing any provision relating to labor terms

or conditions for employees of tribally owned businesses located on

Indian lands. The legislation voids any such provisions that have

been entered into before, on, or after the legislation’s enactment.

In 1998 the California Supreme Court overturned Proposition 5,

which confirmed California tribes’ right to gaming enterprises. As

a result, the United States Attorney declared that all tribal gaming

in the State would cease unless tribal-State compacts were signed

by October 13, 1999.

Faced with the prospect that their most valuable economic assets, which help fund health care facilities, educational facilities,

and other social and economic endeavors, would be shut down, 61

California tribes were essentially coerced into signing gaming compacts with Governor Gray Davis that carried separate labor agreements. It was made very clear by Governor Davis that a gaming

compact would not be signed without a labor agreement.

As a matter of Federal law, the National Labor Relations Act

does not apply to Indian tribes because they are recognized as sovereign governmental entities under the Constitution. Nevertheless,

under the time-sensitive deadline, California tribes in that State

were forced to cede their sovereignty, their constitutional rights, to

the State of California in order to save their enterprises from being

shut down.

The issue here is not whether tribes should unionize their gaming facilities, but the issue is, who should make that decision?

Should it be up to the sovereign tribal governments or should it be

up to the States and the Federal Government? The U.S. Constitution states that it is the tribes as sovereign governmental entities

that have the right to make this decision.

Recently, referring to the San Juan Pueblo of New Mexico tribe’s

right-to-work ordnance, the 10th U.S. Circuit Court of Appeals

stated that the ordnance was ‘‘clearly an exercise of sovereign authority over economic transactions on the reservation.’’

H.R. 103, the Tribal Sovereignty Protection Act, will ensure that

States do not force Indian tribes to unionize their casino employees

as a condition of a tribal-State gaming compact made under the Indian Gaming Regulatory act. The bill will allow sovereign tribes to

have the freedom to determine their own labor policies, rather than

being coerced, or some would say blackmailed, by the State and/or

the Federal Government.

The Ranking Member, the Gentleman from West Virginia.

Mr. RAHALL. Thank you, Mr. Chairman. Mr. Chairman, I am just

going to be brief in this opening statement, then get into it later

on, but let me just say pure and simple, cut through the chaff and

get right to the point, this bill is anti-labor, it is anti-worker. It is

not even a thinly disguised assault on labor unions, and that is

really no surprise there, considering the author of it.

But what is surprising, though, I would say, is that it has been

dressed up to look like something that is pro-tribal sovereignty.

53

That is how the bill has been dressed up, and it is just a bad political ploy. It is bad legislation. And I expect during the course of

this hearing we will go into further details about it, but I just want

to say that at the very top of the agenda, so that everybody knows

where I am coming from on this legislation.

I now yield the balance of my time to my colleague from California, Mr. Miller.

Mr. MILLER. I thank the Gentleman for yielding, and I quite concur in what he has said. The purpose of this bill in this hearing

really is not about supporting Indian tribes or preserving the sanctity of the tribe-State compact negotiations. It is nothing more than

an outright attack on the rights of working men and women and

unions to which they choose to belong.

The author and many supporters of this bill have more or less

always been anti-union. It is not a question of whether unions are

representing people on tribal lands, it is whether they represent

people in any working places in America, and I think the congressional supporters know exactly what they have done with the introduction of this bill.

This is just a continued crusade by our friends on the other side

of the aisle against the rights of working people and the rights of

working people to collectively organize and to freely associated.

They are using this forum in this Committee to see whether or not

they think they can force people on our side of the aisle to choose

between the people they support on the tribal lands of this Nation

and union organizations and working families across this country.

Simply not going to work. It is not how we work. We don’t trade

loyalties. And, first and foremost, it is a false choice. The idea that

somehow we would have to choose the rights of collective bargaining over our friends in the tribal nations is simply a false

choice. They are not inconsistent.

As we know, a number of California tribes already have entered

into collective bargaining arrangements, even predating the compact. Others have entered into it in other timeframes. And I also

want to say that if you read this bill, it is a misstatement of the

facts.

And I am not sure that the Indian tribes in California would believe, as the bill states, that the Governor of California acted in bad

faith. I am not sure that the Indian tribes in California would

agree that they were essentially forced into signing these compacts.

They had been trying for 8 years to get the previous Governor

of the State of California to even talk to them. And when he finally

did, it was such an egregious compact that almost all of the tribes

would not agree to it, and even that compact had far stronger,

under Governor Wilson, had far stronger language with respect to

unions and representation on the State lands.

What really was entered into was the right of people to decide,

should they do so, to join a union. Upon a showing of 30 percent,

people who freely make that decision can choose to have a vote and

decide whether or not to have a union. If they have a union and

later they don’t like it, 30 percent of the people can say, ‘‘We want

to decertify, we want to have an election,’’ and they can vote not

to have a union.

54

So the notion that somehow this forces unionization, forces union

membership, is simply not accurate. Simply not accurate. If you

read from the agreement, it says ‘‘Eligible employees shall have the

right of self-organization to form, to join, to assist employee organizations to bargain collectively through representatives of their own

choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection,’’ and shall also

have the right to refrain from doing any of that. That is according

to the compact.

So this is built on a mischaracterization of the situation. It is

built upon the role, it is built upon the mischaracterization of the

role of the Governor of the State of California, and it is built on

the mischaracterization of what the compacts actually say.

The fact of the matter is that, as set up under IGRA, when the

tribes establish that they have a legal right to Class III gaming,

as was done in California—it was subject to court review, later was

dealt with in Proposition 1A—they then have the ability to compact, as under IGRA, with the Governor. Those are free and open

negotiations, each party brings its agenda to the table, surrounding

the issue of Indian gaming.

Clearly, clearly the work force on tribal lands is a subject, a matter of concern of any Governor of any State. One Governor may

choose to do something else. This Governor chose to make sure that

collective bargaining was available to the employees. Not all the

employees of Indian gaming, in fact a minority of Indian gaming

employment are individuals who are members of the Indian nations.

We also note that Governors have sought to do a number of other

things, many of which I disagree with. We are well aware of the

fact that the tribes now feel that they have been disadvantaged because of the Supreme Court decision on Seminole, which took away

the rights of the tribes to sue. I wrote the legislation giving the

tribes the right to sue. The Supreme Court said we have overstepped our bounds. And the real question is, are we going to fix,

are we going to see whether or not we can address the Seminole

decision to once again get a level playing field in the negotiations

between the State and the gaming tribes who are seeking a compact?

But that is not what is happening here. We are not addressing

Seminole. We are not addressing the issue of sovereignty. We are

not addressing the issue of parity of bargaining positions. What we

are addressing here is, we simply want to batter down the rights

of worker protections, and it is simply wrong for us to do that.

My understanding, and it has been echoed to me or been told to

me numerous times, that the Gaming Association seeks no amendments in IGRA until the Seminole case has been addressed, and

that that has not changed. The fact of the matter is, to open up

IGRA is something that we have tried to avoid because of the very

substantial anti-gaming component of the Republican Caucus in

this Congress, and we were concerned what was going to happen

with IGRA and with many of the financial adversaries, if you will,

the competitors of Indian gaming who would love to have an opportunity to erect additional hurdles under IGRA and to keep people

from doing that.

55

There is also the question of opening it up, and there have been

concerns about then that people would load in other items that

must be compacted, that have nothing to do with Indian gaming:

the use of tribal lands, hunting and fishing rights, there has been

a whole list of agendas of people who would love to be able to get

the leverage of these compacts to settle a whole list of other scores

with respect to sovereignty, reservations, and governance of the

tribal lands.

So I would hope that members of this Committee would reject

this legislation. I would hope that they would see it immediately

for what it is, a battering ram against collective bargaining, a policy that is absolutely inconsistent with our positions, and that we

ought to reject it and understand that it is trying to present a false

choice, a false choice to the Congress, suggesting that somehow the

collective bargaining rights to be voluntarily entered into or not entered into by the employees of these entities, that somehow that is

inconsistent with Indian gaming.

The fact of the matter is, the proof every day on the land is, that

is not the case. This is a situation set up under Federal law between the States and the tribes seeking a compact, and that is

where it ought to remain.

An item that was dealt with in California is the question of rev- enue sharing. Some I think almost $40 million has been distributed

to poorer tribes who really don’t have access to gaming because of

their location or other circumstances, and we have created revenue

sharing, I really think one of the hallmarks of the California compacts in terms of helping other tribes to provide for education, for

housing, for health and welfare of their members.

Other States have chosen not to do that. Some States have chosen to extract huge amounts of money, huge amounts of money

from the tribes, for entering into the compact. Call it whatever you

want, that is what is going on. Maybe that ought to be addressed

in this situation.

The State of Arizona I think even suggested that the gaming nations create a charity, contribute a huge amount to charity, but

then the money would be given away in the State’s name. Sounds

like the government, sort of, you know; we take your money and

then we give it away in our name.

So there is no shortage of people’s imagination about what they

would want to put on the table in compacting, but I think clearly

employee-employer relationships are central to the issue of Indian

gaming, and its impact on the reservation and off the reservation

is a proper item for compacting. And I would hope that we would

reject this legislation.

Mr. HAYWORTH. The Chair thanks the Gentleman from California, and the Chair would note that in addition to having the

Ranking Member yield the time, we certainly gave the Gentleman

from California his own 5 minutes. But not to interrupt a seamless

point of view, we chose just to let him continue, so— Mr. MILLER. I appreciate that.

Mr. HAYWORTH. And we appreciate perhaps that, the relevance

or the facts notwithstanding, certainly my friend from California is

always eloquent. And the Chair also welcomes the fact that both

the Ranking Member and the Gentleman from California chose not

56

to indulge in personalities or get personal as to the authorship of

the proposed legislation.

[Laughter.]

Mr. HAYWORTH. But, be that as it may, we do have a choice here.

The Gentleman from Michigan would like to make a statement. I

think perhaps we ought to hear from the witnesses, but if you feel

compelled to go now, certainly I am always happy to yield to my

friend from Michigan.

Mr. KILDEE. Thank you, Mr. Chairman. I appreciate that, and I

am going to get personal but I am going to praise you. I praise your

established record for protecting the sovereign rights of tribes. You

and I have worked very closely in the vineyard on that, and I certainly praise you for that.

I do, however, oppose H.R. 103, a bill that would amend the Indian Gaming Regulatory Act to prohibit tribal-State gaming compacts from including any provision relating to labor terms or conditions, or from being conditioned by collateral agreements dealing

with labor terms. Mr. Chairman, I will briefly explain the reasons

why I oppose the bill.

The bill addresses the core problem of coerced collateral agreements. I think that that is what we should really be addressing.

Since the U.S. Supreme Court ruling in Seminole Tribe v. Florida,

tribes are prevented by the Eleventh Amendment, as Mr. Miller

has stated, from suing States in Federal court without their consent. States failing to negotiate in good faith have a complete defense against tribes who seek to enter into gaming compacts. This

situation has caused the States to have an unfair advantage over

tribes in State-tribal negotiations that can lead to coerced collateral

agreements.

By enacting IGRA, Congress ought to ensure the rights of tribes

to reach gaming compacts with States by allowing tribes to sue

States where States refuse to negotiate in good faith. However, because of the Seminole decision, these tribes cannot sue States for

refusal to negotiate in good faith. I think we should work together

to return to the tribes the authority Congress sought to give them

in IGRA and allow the tribes to sue States where they refuse to

negotiate in good faith.

Second, the bill deals only with labor issues. It does not address

other core sovereign rights that States may seek to coerce tribes to

give up, such as treaty rights. In addition, I am concerned that coerced collateral agreements extend beyond the gaming arena. In

my own State of Michigan, the tribes are being asked to negotiated

treaty hunting and fishing rights before the Governor will enter

into State-tribal tax agreements. A similar situation exists in Wisconsin. I believe that we need to study the larger issue of coerced

collateral agreements.

I am concerned about opening up IGRA to amendments. I believe

that we must first address the core problem of coerced agreements

and provide a legislative fix to the Seminole case. By working together, we can find a solution to the issue of coerced agreements.

I look forward to the testimony of the three friends who are

ready to testify, I think now. Thank you Mr. Chairman.

[The prepared statement of Mr. Kildee follows:]

57

Statement of The Honorable Dale E. Kildee, a Representative in Congress

from the State of Michigan, on H.R. 103

Mr. Chairman, while I praise your established record as an advocate for protecting the sovereign rights of tribes, I oppose H.R. 103, a bill that would amend

the Indian Gaming Regulatory Act (IGRA) to prohibit tribal/state gaming compacts

from including any provision relating to labor terms or conditions, or from being

conditioned by collateral agreements dealing with labor terms.

I will briefly explain the reasons for which I oppose this bill.

First, while I share your concern that the State of California may have pressured

some tribes into signing labor agreements before entering into gaming compacts, I

do not believe that this bill addresses the core problem of coerced collateral agreements.

Since the U.S. Supreme Court ruling in Seminole Tribe v. Florida, tribes are prevented by the Eleventh Amendment from suing states in Federal court without their

consent. States failing to negotiate in good faith have a complete defense against

tribes who seek to enter into gaming compacts. This situation has caused the states

to have an unfair advantage over tribes in state/tribal negotiations that can lead

to coerced collateral agreements.

By enacting IGRA, Congress sought to ensure the rights of tribes to reach gaming

compacts with states by allowing tribes to sue states where states refused to negotiate in good faith. However, because of the Seminole decision, tribes cannot sue

states for refusal to negotiate in good faith.

We should work together to return to the tribes the authority Congress sought

to give them in IGRA and allow the tribes to sue states where they refuse to negotiate in good faith.

Second, the bill deals only with labor issues. It does not address other core sovereign rights that states may seek to coerce tribes to give up, such as treaty rights.

In addition, I am concerned that coerced collateral agreements extend beyond the

gaming arena.

In my own State of Michigan, the tribes are being asked to negotiate treaty hunting and fishing rights before the governor will enter into state/tribal tax agreements. A similar situation exists in Wisconsin.

I believe that we need to study the larger issue of coerced collateral agreements.

Finally, although I am concerned about opening up IGRA to amendments, I believe that we must first address the core problem of coerced agreements and provide

a legislative fix to the Seminole case.

By working together, we can find a solution to the issue of coerced agreements.

I look forward to hearing the testimony. Thank you.

Mr. HAYWORTH. I thank the Gentleman from Michigan. The

Chair is constrained to point out, the concerns that are raised by

my friend from Michigan and the Gentleman from California, the

only way I would bring this bill to the floor is under a rule that

would prevent any other amendments. If that doesn’t happen, it

would not go forward, and I wanted to make that part of the

record.

But, as my friend from Michigan points out, we have witnesses

who very patiently have been waiting to offer their testimony. We

will have that testimony now, beginning with Council Member Garcia from the Pueblo of San Juan. Welcome, and your complete

statement will be made part of the record.

STATEMENT OF JOE A. GARCIA, TRIBAL COUNCIL MEMBER,

PUEBLO OF SAN JUAN

Mr. GARCIA. [Remarks in native language.] I have asked for your

guidance and I have asked for your respect in allowing me to speak

at this time. So, Mr. Chairman, I will speak.

Mr. Chairman, Committee members, and one of our own, Mr.

Tom Udall from New Mexico, greetings from San Juan Pueblo. My

name is Joe Garcia, and I am a former Governor. One of the issues

we addressed some time ago when I was Governor, it dates back

58

a few years, but it has to do with labor and unions. Nonetheless,

thank you for inviting me and allowing me to come before you. It

is an honor always to speak before congressional delegates.

I am here to give testimony on H.R. 103, a bill to amend the Indian Gaming Regulatory Act of 1988 to protect Indian tribes from

coerced labor agreements. I want to make one point clear, that although our court case did not deal with gaming per se, it dealt with

labor and the right for tribes to set their own ordinances, policies

and acts. My tribe, the Pueblo of San Juan, supports this bill.

On January 11, 2002, the 10th Circuit Court of Appeals in National Labor Relations Board v. Pueblo of San Juan, 276 F.3d 1186,

10th Circuit, affirmed the power of my pueblo to outlaw compulsive

union membership on its land. In this case, the NLRB wanted to

force every employee working for the sawmill on our land to financially support a certain union. The Tribal Council, of which I am

a member, felt strongly that the Tribal Council rather than the

NLRB should make the labor policy for Pueblo land. By a vote of

9 to 1, the 10th Circuit agreed.

The important principle of this case is that Congress has recognized that the Indian tribes are solely responsible for making the

labor policy for Indian lands, not any Federal agency. We understand that some States believe that they can and should make the

labor policy for Indian lands. The States of California and New

York, for example, are forcing Indian tribes to enact tribal laws

that mandate labor unions in Indian casinos. Otherwise, the States

threaten not to sign compacts with the Indian tribes.

Unfortunately, these Indian tribes have no legal recourse against

these bad faith actions because of Seminole Tribe v. Florida. Consequently, these tribes may ultimately be forced to accept the

State’s labor policy demands or give up any hope of obtaining a

gaming compact.

The Pueblo of San Juan believes that Congress never meant for

these States to use the Indian Gaming Regulatory Act in this fashion. Moreover, nothing in the Indian Gaming Regulatory Act gives

these States the power to extort tribal labor policy in exchange for

a gaming compact.

Congress made it clear that only those matters that are directly

related to the regulation and licensing of gaming are proper subjects for negotiation of a compact. Senate Report No. 100-446

states, ‘‘The committee does view the concession to any implicit

tribal agreement through the application of State law for Class III

gaming as unique, and does not consider such agreement to be

precedent for any other incursion of State law onto Indian lands.

Gaming by its very nature is a unique form of economic development, economic enterprise, and the Committee is strongly opposed

to the application of the jurisdiction elections authorized by this

bill to any other economic or regulatory issue that may arise between tribes and States in the future.’’ 1988 U.S.C.C.A.N. 3071,

3084, and others: ‘‘Congress does not intend for the States to use

the gaming compact as a tool to impose their regulatory or public

policy will on Indian tribes.’’

The presence or absence of labor unions in Indian casinos has

nothing to do with the direct regulation and licensing of gaming.

We urge Congress to restore the balance in the Indian Gaming

59

Regulatory Act that was lost by the Seminole decision. I believe

that H.R. 103 is a step in the right direction.

And the testimony is available. I will take any questions if there

are any, Mr. Chairman.

[The prepared statement of Mr. Garcia follows:]

Statement of Joe A. Garcia, Tribal Council Member, Pueblo of San Juan,

on H.R. 103

Thank you for inviting me to give testimony on H.R. 103, a bill to amend the Indian Gaming Regulatory Act of 1988 to protect Indian tribes from coerced labor

agreements.

H.R. 103 is about protecting tribal sovereignty’sovereignty that has not been

taken away by the National Labor Relations Act or the Indian Gaming Regulatory

Act. Several States, such as California, have improperly tried to take away this sovereignty from Indian tribes through the so-called compact ‘‘negotiation’’ process. The

balance intended in the Indian Gaming Regulatory Act has been upset by the Supreme Court’s Seminole decision, and States now have the power to force illegal

compact provisions on Indian tribes. H.R. 103 would restore that balance, at least,

in the area of labor relations.

At the outset, I want to say that my tribe, the Pueblo of San Juan, recognizes

the contributions that labor unions have made in this Country. I am here in support

of H.R. 103 solely because it confirms the sovereign governmental right of Indian

tribes to make their own labor relations policies based on the economic conditions

existing on Indian reservations. Many Indian tribes may well exercise that sovereign authority to welcome labor unions and encourage union organization. But

that is a choice for Indian tribes, not for States, and, ultimately, not for the Federal

Government.

It is imperative that the Committee on Resources understand that labor policy on

Indian lands is an important aspect of economic regulation that should be, and heretofore has been, left to Indian tribes as sovereign governments. The National Labor

Relations Board has concluded that the National Labor Relations Act does not apply

to Indian tribes and their wholly-owned business entities, including tribal casinos,

on Indian lands because of the Act’s exemption for governments. Absent the unbalanced compacting process, it is undisputed that Indian tribes can and do make policy decisions regarding labor relations for their tribal casinos without State interference.

Indian tribes also retain regulatory authority over labor relations with respect to

non-tribal employers on Indian lands to the same extent as States. My tribe, the

Pueblo of San Juan, has won every round of litigation over precisely that issue. On

January 11, 2002, the Tenth Circuit Court of Appeals, in National Labor Relations

Board v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002) (en banc), affirmed

the power of my Pueblo to outlaw compulsory union membership on its land. In that

case, the NLRB wanted to force every employee working for a sawmill on our land

to financially support a certain union. The Tribal Council, of which I am member,

felt strongly that the Tribal Council, rather than the NLRB, should make the labor

policy for Pueblo land. By a nine to one margin, the Tenth Circuit agreed. The important principle of this case is that Congress has recognized that the Indian tribes

are solely responsible for making labor policy for Indian lands, not any Federal

agency and certainly not the States.

Thus, it is clear that States cannot lawfully impose their policies regarding labor

relations on Indian tribes. Nevertheless, we understand that some States believe

that they can and should make the labor policy for Indian lands. The States of California and New York, for example, are forcing Indian tribes to enact tribal laws that

mandate labor unions in Indian casinos. Otherwise, these States threaten not to

sign gaming compacts with the Indian tribes.

Unfortunately, these Indian tribes have no legal recourse against these unlawful

and coercive tactics because of Seminole Tribe v. Florida, 517 U.S. 44 (1996). As you

may recall, the Supreme Court’s ruling in the Seminole case prevents Indian tribes

from suing States for negotiating compacts in bad faith, even though Congress expressly intended to maintain the balance of power between Indian tribes and States

by allowing the Indian tribes to sue States in Federal court. Consequently, Indian

tribes can now be illegally forced to accept the States’ labor policy demands (and

a host of other demands, for that matter) or give up any hope of obtaining a gaming

compact.

60

The Pueblo of San Juan is certain that Congress never meant for the States to

use the Indian Gaming Regulatory Act in this fashion. The Senate Committee Report on the IGRA put it plainly: ‘‘The Committee does not intend that compacts be used as a subterfuge for

imposing State jurisdiction on tribal lands.’’ (S. Rep. No.100–446, at 14,

reprinted 1988 U.S.C.C.A.N. 3071, 3084.)

And yet, that it essentially what the States of California or New York have done

or are attempting to do: they have forced their views of labor policy on the Indian

tribes in those states.

Other statements by members of Congress at that time underscore that gaming

compacts were not meant to be tools for States to impose their policies on Indian

tribes, especially when those policies are not directly related to gaming. As Senator

Inouye, IGRA’s sponsor, stated on the floor shortly before IGRA cleared the Senate: ‘‘There is no intent on the part of Congress that the compacting methodology be used in such areas such as taxation, water rights, environmental

regulation, and land use. On the contrary, the tribal power to regulate such

activities, recognized by the U.S. Supreme Court . . . remain fully intact.

The exigencies caused by the rapid growth of gaming in Indian country and

the threat of corruption and infiltration by criminal elements in Class III

gaming warranted utilization of existing State regulatory capabilities in

this one narrow area. No precedent is meant to be set as to other areas.’’ (134 Cong. Rec. S24024–25, Sept. 15, 1988)

As the Senate Report and Senator Inouye made clear, the intent of IGRA was to

allow States a sufficient role in the regulation of Class III Indian gaming to insure

that issues, such as infiltration by organized crime were addressed. The compacting

process was not intended to allow States to impose their will regarding ancillary

issues, such as taxation and labor relations. Labor relations is simply not ‘‘directly

related to, and necessary for, the licensing and regulation of such [Class III gaming]

activity,’’ as IGRA, 25 U.S.C. § 2710(d)(3)(C), requires.

In summary, the skewed compacting process under IGRA is being used improperly by the States to impose non-gaming related regulatory or public policies on Indian tribes. We urge Congress to restore the balance in the Indian Gaming Regulatory Act that was lost by the Seminole decision. I believe that H.R. 103 is a step

in the right direction.

Mr. HAYWORTH. And we thank you very much, Council Member

Garcia, for your testimony.

Now, Chairman Marquez of the San Manuel Band of Mission Indians, welcome, and we appreciate your testimony today.

STATEMENT OF DERON MARQUEZ, CHAIRMAN,

SAN MANUEL BAND OF SERRANO MISSION INDIANS

Mr. MARQUEZ. My name is Deron Marquez, and I am the Chairman of the San Manuel Band of Mission Indians located in San

Bernardino County in California. I am too speaking in support of

H.R. 103 sponsored by Congressman J.D. Hayworth, to amend the

Indian Gaming Regulatory Act in a way that would protect Indian

tribes from being forced, through the withholding of State compact

approvals, to enter into labor agreements. I will be testifying from

our own historical and tribal perspectives and experiences, which

we would appreciate being considered by you as you debate the

merits of this important bill.

By way of tribal background, we are among the earliest tribes to

enter gaming, which in our case began in the mid-1980’s before

IGRA was enacted. For many years our tribe has operated, on its

own and without any outside management company or financing,

one of the most successful tribal government casinos in California

and perhaps in the country. Our gaming project is not only vitally

important to our tribe and our reservation, having lifted us out of

poverty, high unemployment and limited educational opportunities,

but also to our entire community, which continues to have one of

61

the highest unemployment and personal bankruptcy rates, not related to gaming, in the country.

We are a relatively small tribe, so many of our employees are

nontribal. Our casino employees number in the thousands in total,

work entirely on the reservation, and are employed by our tribal

government. Both members and nonmembers alike seek to become

our employees because of our solid reputation as a fair, safe, and

secure work place. We rank among the best and the highest paying

and benefitted employers in our community.

We are not unique among tribes, however, in believing that employees deserve a safe and healthy environment and that tribal

governments should be, and typically are, responsive to their

needs. Indian gaming is dedicated, structured, and oriented to benefit tribal self-sufficiency and people, not Wall Street or private

businesses and their interests.

Our tribe, like other tribes engaged in gaming throughout the

Nation, continue to rank at the top among those participants in the

gaming industry that make charitable contributions, assist local

governments and other public institutions with our profits, and,

importantly, combat compulsive gambling. Those activities and

achievements reflect the fact that our priorities and goals are substantially different than those who engage in gaming solely as a

business. Congress understood that basic difference when it enacted IGRA to enable us to protect those objectives, a fact that

must not be lost in the dialog over this bill.

It is also important in considering my remarks that you know

that a few years ago, without any compulsion whatsoever from the

State or Federal Government, or anyone else for that matter, our

tribe engaged in voluntary negotiations with a major labor union

that was representing some of our employees, and that we reached

a collective bargaining agreement that is still in effect. We are one

of the few tribes that have done so in the gaming industry, although labor agreements have been reached in other tribal industries in the past. Indeed, tribes have sometimes been frustrated,

and had to be vigilant in their efforts to ensure that unions admitted its members and provided the job training and employment opportunities on reservations that were being made available in the

same location to the non-Indian community.

Therefore, neither my testimony nor the support of this bill by

the others should be viewed as for or against employers or employees, or as pro or con for labor unions. Just as State governments

have strong interests in regard to their own employees as well as

others employed by others within their jurisdiction, tribes have

fundamental policy and governmental interests in regulating employment relationships and activities that take place within their

jurisdiction.

This is particularly true in the case of the tribal governmental

gaming which is so important for funding tribal functions, the arbitrary disruption of which could be disastrous to governmental programs and operations. How those relations are governed must be

determined in accordance with tribal governmental policies, since

to do otherwise gives rise to the potential and to the assumption

that forces outside the reservation can and should control tribal

governmental operations. That is a concept that has been sought

62

by some who seek to destroy tribal existence, but has never been

the law of this country.

Our support for H.R. 103 demonstrates an unfailing belief that

attempts by those who would seek to leverage control of tribal governmental operations and work places through the potential economic leverage available through the IGRA compact process should

be resisted and prohibited. Let me illustrate these dangers through

what happened, and nearly happened, in our own State of California.

In the mid-1990’s the California tribes and the State, following

years of negotiations, were at best able to reach an agreement on

a tribal gaming compact that was acceptable to only a handful of

over 100 Federally recognized tribes within the State. Tribal-state

compacts are required under IGRA where the nature of the gaming

is neither based on bingo, on games traditionally associated with

bingo, such as pull tabs and the like, or on nonbanking card games

such as poker.

Other forms of gambling require a compact, the purpose of

which, as stated in the act, is to govern the conduct of gaming activities. A compact is intended to be reached by good faith negotiations between the State and the tribe over such traditional gaming

regulatory matters as employee licensing, the kinds of gambling

games that will be permitted, regulatory standards, and other topics specific to the operation of gaming activities.

The act is full of references to the regulation of gaming, but nowhere suggests that a State can use its own compact consent opportunity under IGRA to obtain control over tribal governments

and their employees. Yet that was exactly what was attempted in

order to further the agenda of a few commercial interests that were

opposed to any gaming by tribes in California in the late 1990’s.

When the majority of California tribes opposed a compact that

was being negotiated in secret, but that was clearly intended to

serve as a model for all California tribes, they proposed that the

issue be taken to the people in the form of a constitutional amendment setting forth the proposed terms of a compact, so that it can

be openly debated and voted up or down by everyone.

That suggestion appeared to have overwhelming bipartisan support of the State legislature, only to be thwarted, ironically, by

some out-of-State gaming interests who persuaded some that the

compact initiative should compel collective bargaining on terms far

beyond what is required under law, and certainly far in excess of

any terms those companies would have supported or tolerated if

anyone had tried to enact them under the laws of their own State.

As a result, the debate became highly politicized, and the tribes

were left with no alternative but to place the measure on the ballot

as a statutory initiative without legislative support.

The problem should have never arisen. It is simply inappropriate

to permit the compact process, which was intended to govern the

fundamentals of regulating gaming, to be hijacked by unrelated

goals, such as the opportunity to serve competitors and to otherwise control tribal jurisdiction. Labor relations was one vehicle for

such an attempt, but there are others as well. They stray from the

gaming regulation under the guise of trying to solve complex issues

of tribal-State relations. The compact process is not the place for

63

that to occur, and to permit the process diminishes not only tribal

sovereignty but the role that Congress has historically played in

this debate.

The footnote to California’s story is of course that the first compact did go to the people without any labor provisions, but with significant protections for workers which were written in at the insistence of the tribes themselves, and which passed by 64 percent, only

to be stricken down by the courts because, due to the legislative

split over the labor issue, it could not be placed in the constitution

as originally intended.

A second initiative, this time amending the California constitution, did pass, but only as to the forms of gaming to be included

in a compact. Simultaneously, tribes reached agreement with a

new Governor and agreed to compromise provisions governing negotiations, but not agreements for collective bargaining.

Even those provisions, however, which each compacting tribe is

required to enact as a tribal labor relations ordinance as a condition of obtaining the compact, violates the tribe’s sovereign right to

govern the subject of employee labor relations within its jurisdiction, just as other governments now do, and strays dangerously far

from the gaming regulation which the compacts were intended to

address. One would be surprised to find labor relations provisions

in a section of State law governing gaming regulation, but that is

essentially what results when compacts like these contain such provisions. They are inappropriate and beyond the scope of IGRA.

This bill would correctly uncouple the gaming regulatory process

from a State’s goals or agendas with respect to labor relations. In

fact, my only criticism would be that it does not go far enough in

prohibiting negotiations over all unrelated issues. IGRA calls for

two areas to be negotiated, scope of gaming and regulation. These

critical programs should not be used as a shortcut to try and coerce

solutions to complex and serious questions regarding the relationship between tribes and States that have been and will continue

to be with us for many years.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Marquez follows:]

Statement of Deron Marquez, Chairman, San Manuel Band of Serrano

Mission Indians

Good morning. My name is Deron Marquez. I am the Chairman of the San

Manuel Band of Serrano Mission Indians, a Federally recognized Indian tribe with

a reservation in San Bernardino County, California. I am speaking in support of

H.R. 103, sponsored by Congressman J.D. Hayworth, to amend the Indian Gaming

Regulatory Act in a way that would protect Indian tribes from being forced, through

the withholding of state compact approvals, to enter into labor agreements. I will

be testifying from our own historical and tribal perspectives and experiences, which

we would appreciate being considered by you as you debate the merits of this important bill.

By way of tribal background, we were among the earliest tribes to enter gaming,

which in our case began in the mid–1980’s before IGRA was enacted. For many

years our tribe has operated, on its own and without any outside management company or financing, one of the most successful tribal governmental casinos in California, and perhaps in the country. Our gaming project is not only vitally important

to our tribe and our reservation, having lifted us out of poverty, high unemployment, and limited educational opportunities, but also to our entire community,

which continues to have one of the highest unemployment and personal bankruptcy

rates in the country.

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1 25 U.S.C. a2710 (d)(3)(A). All future references to the Act are in Title 25 of the U.S. Code.

We are a relatively small tribe, so many of our employees are non-tribal. Our casino employees number in the thousands in total, work entirely on the reservation,

and are employed by our tribal government. Both members and nonmembers alike

seek to become our employees because of our solid reputation as a fair, safe and

secure workplace. We rank among the best and highest paying and benefitted employers in our community. We are not unique among tribes, however, in believing

that employees deserve a safe and healthy environment, and that tribal governments should be, and typically are, responsive to their needs. Indian gaming is dedicated, structured and oriented to benefit tribal self-sufficiency, and people; not Wall

Street or private business interests. Our tribe, like other tribes engaged in gaming

throughout the nation, continually rank at the top among those participants in the

gaming industry that make charitable contributions, assist local governments and

other public institutions with our profits, and, importantly, combat compulsive gambling. Those activities and achievements reflect the fact that our priorities and goals

are substantially different than those who are engaged in gaming solely as a business. Congress understood that basic difference when it enacted IGRA to enable us

to protect those objectives, a fact that must not be lost as the dialogue over this

bill continues.

It is also important in considering my remarks that you know that a few years

ago, without any compulsion whatsoever from the state or Federal Government, or

from anyone else for that matter, our tribe engaged in voluntary negotiations with

a major labor union that was representing some of our employees, and that we

reached a collective bargaining agreement that is still in effect. We are one of the

few tribes that have done so in the Indian gaming industry, although labor agreements have been reached in other tribal industries in the past. Indeed, tribes have

sometimes been frustrated, and have had to be vigilant, in their efforts to ensure

that unions admitted its members and provided the job training and employment

opportunities on reservations that were being made available in that same location

to the non–Indian community. Therefore, neither my testimony nor the support of

this bill by other tribes, should be viewed as for or against employers or employees,

or as pro or con labor unions. Just as State governments have strong interests with

regard to their own employees as well as those employed by others within their jurisdiction, Tribes have fundamental policy and governmental interests in regulating

employment relationships and activities that take place within their jurisdiction.

That is particularly true in the case of tribal governmental gaming, which is so important to funding tribal functions, the arbitrary disruption of which could be disastrous to governmental programs and operations. How those relations are governed

must be determined in accordance with tribal governmental policies, since to do otherwise gives rise to the potential, and to the assumption, that forces outside the reservation can and should control tribal governmental operations. That is a concept

that has been sought by some who would seek to destroy tribal existence, but has

never been the law in this country. Our support for H.R. 103 demonstrates an unfailing belief that attempts by those who would seek to leverage control of tribal

governmental operations and workplaces, through the potential economic leverage

available through the IGRA compact process, should be resisted and prohibited. Let

me illustrate these dangers through what happened, and nearly happened, in our

own state of California.

In the mid–1990s, the California tribes and the state, following years of negotiations, were at best able to reach agreement on a tribal-state gaming compact that

was acceptable to only a handful of the over 100 Federally recognized tribes within

the state. Tribal-state compacts are required under IGRA where the nature of the

gaming is neither based on bingo, on games traditionally associated with bingo, such

as pull-tabs and the like, or on non-banking card games such as poker. Other forms

of gambling require a compact, the purpose of which as stated in the Act is to govern ‘‘the conduct of gaming activities.’’ 1 A compact is intended to be reached by good

faith negotiations between the state and a tribe over such traditional gaming regulatory matters as employee licensing, the kinds of gambling games that will be permitted, regulatory standards, and other topics specific to the ‘‘operation of gaming

activities.’’ The Act is full of references to the regulation of gaming, but nowhere

suggests that a state can use its own compact consent opportunity under IGRA to

obtain control over tribal governments and their employees. Yet that was exactly

what was attempted in order to further the agenda of a few commercial interests

that were opposed to any gaming by tribes in California in the late 1990’s. When

the majority of the California tribes opposed a compact that was being negotiated

in secret, but that was clearly intended to serve as a model for all California tribes,

they proposed that the issue be taken to the people in the form of a constitutional

65

amendment setting forth the proposed terms of a compact, so that it could be openly

debated and voted on, up or down, by everyone. That suggestion appeared to have

overwhelming bipartisan support of the state legislature, only to be thwarted, ironically, by some out of state gaming interests who persuaded some that the compact

initiative should compel collective bargaining on terms far beyond what is required

under law, and certainly far in excess of any terms those companies would have

supported or tolerated if anyone had tried to enact them under the laws of their

own state. As a result, the debate became highly politicized, and the tribes were left

with no alternative but to place the measure on the ballot as a statutory initiative,

without legislative support.

The problem should have never arisen. It is simply inappropriate to permit the

compact process, which was intended to govern the fundamentals of regulating gaming, to be hijacked by unrelated goals, such as the opportunity to serve competitors

and to otherwise control tribal jurisdictions. Labor relations was one vehicle for such

an attempt, but there are others as well. They stray far from gaming regulation

under the guise of trying to solve complex issues of tribal-state relations. The compact process is not the place for that to occur, and to permit that process diminishes

not only tribal sovereignty, but the role that Congress has historically played in

these debates.

The footnote to the California story is, of course, that the first compact did go to

the people without any labor provisions, but with significant protections for workers

which were written in at the insistence of the tribes themselves, and which passed

by 64%, only to be stricken down by the courts because, due to the legislative split

over the labor issue, it could not be placed in the constitution as originally intended.

A second initiative, this time amending the California constitution, did pass, but

only as to the forms of gaming to be included in a compact. Simultaneously, tribes

reached agreement with a new governor and agreed to a compromise provision governing negotiations, but not agreements, for collective bargaining. Even those provisions, however, which each compacting tribe is required to enact as a ‘‘Tribal Labor

Relations Ordinance’’ as a condition of obtaining the compact, violates the tribe’s sovereign right to govern the subject of employee labor representation within its jurisdiction, just as other governments now do, and strays dangerously far from the

gaming regulation which the compacts were intended to address. One would be surprised to find labor relations provisions in a section of state law governing gaming

regulation, but that is essentially what results when compacts like these contain

such provisions. They are inappropriate and beyond the scope of IGRA.

This bill would correctly uncouple the gaming regulatory process from a state’s (or others’) goals or agendas with respect to labor relations. In fact, my only criticism would be that it does not go far enough in prohibiting negotiations over all unrelated issues. These critical programs should not be used as a shortcut to try and

coerce solutions to complex and serious questions regarding the relationship between tribes and states that have been, and will continue to be, with us for many

years.

Thank you, Mr. Chairman.

Mr. HAYWORTH. Thank you very much, Mr. Chairman.

And now our friend, President George of the United South and

Eastern Tribes. Welcome, Mr. President, and we would appreciate

your testimony.

STATEMENT OF KELLER GEORGE, PRESIDENT,

UNITED SOUTH AND EASTERN TRIBES

Mr. GEORGE. Good morning, Mr. Chairman, Congressman Rahall, and members of the Committee. My name is Keller George.

I am President of the United South and Eastern Tribes, known as

USET, which is a confederation of 24 Federally recognized tribes

ranging from the tip of Florida to Maine and from South Carolina

out into Texas. We cover 12 States in the USET region. And I am

also a member of the Oneida Nation Tribal Government.

Thank you, Mr. Chairman, for convening this hearing to address

the issues of unionization clauses to tribal-State gaming compacts.

This is an increasingly controversial issue, and it is one that is important for Congress to take a strong look at.

66

As I have stated in my written testimony, I do not believe that

this issue has anything to do with whether you support or oppose

unions. Many enrolled Oneida people are proud card-carrying members of unions. They are carpenters, construction workers, iron

workers, and the other skilled tradesmen that are needed with

strong union representation.

In addition, when the Oneida Nation begins a new project, we

open the bidding process to all companies, and we don’t care if we

get a bid from a union shop or a nonunion shop. In the end, we

approve a bid strictly on the merits.

Also, I think we can agree that unions have championed many

workers’ rights that we now take for granted. They work for good

wages, reasonable hours, and decent benefits. A recent radio ad

said that unions were even responsible for creating the weekend,

so let me just say on a personal note to any union representative

here, thank you for that.

The reason that I agree to testify is that I believe Congressman

Hayworth’s bill raises an important, very important to Indian country, an issue that is very, very important to Indian country. As you

know, a controversy has developed over so-called unionization

clauses which would be included as part of a tribal-State gaming

compact, and we know that happened in California, and recently

in New York the State legislature passed a law that would include

unionization clauses in future gaming compacts.

Unfortunately, States are using the process in the Indian Gaming Regulatory Act to undermine the National Labor Relations Act.

In other words, one Federal statute is being used to overturn a different one, in a way Congress did not intend. I am not a labor lawyer, but I know that when Congress passed the National Labor Relations Act, it struck a delicate balance between the rights of companies and the rights of unions. What Congress accomplished, however, is now being undermined by some States.

For example, in New York the legislature passed a law requiring

that future tribal-State gaming compacts include a provision that

Indian governments must remain neutral during union campaigns.

This provision means that Indian nations cannot educate their employees on issues relating to unionization. As a result, employees

are forced to decide whether or not they want a union with only

the union’s version of the issue. This one-sided approach is not only

unfair to employees, it is also contrary to the system established

by Congress under the National Labor Relations Act.

As I understand it, Congress through the National Labor Relations Act specifically allows employers to express their views on

whether they thing it is a good idea for the employees to organize.

States are changing that by making it a breach of the compact for

an Indian nation to exercise its right to express its opinions. That

is not fair, and that is not what I believe that Congress intended.

The New York law also undermines another fundamental concept

of the NLRA, that elections take place by secret ballot. The reasons

for a secret ballot are obvious. Congress recognized that employees

should be free to cast a vote for or against unionization without

fear of retaliation. The New York legislation, however, would require Indian-run casinos to recognize a union based merely on a

card count.

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A card count is simply where union organizers try to get workers

to sign a card that indicates the worker’s support for the union,

and there is no time limit on it. If they do it the first time around,

they don’t get enough signatures, then they can continue and it

could go on for maybe years until they get the correct amount and

then present it, and we have to accept that union. Under the New

York law, once the union presents the Indian nation with cards

from a majority of the employees, the Nation must recognize that

union.

The problem with a card count, it is a system that can be abused

both by the employer and the union. Employees obviously may vote

differently if they know that their vote won’t be secret. They might

be afraid of retaliation by the union; they might be afraid of retaliation by the employer. And that is why secret ballots make sense.

That is why Congress included them when it passed the National

Labor Relations Act.

But this issue is more than just a conflict between two different

Federal laws. This issue also involves tribal sovereignty. Sovereignty is a word that gets thrown around here quite a lot, and

I know because I am probably one of those people that throws it

around a lot, and I am always careful to raise it in a way that

doesn’t diminish the meaning and importance of the word.

What does sovereignty mean in this case? It means that Indian

governments ought to be able to decide whether they want unions

in their government businesses. Again, this has nothing to do with

being for or against unions. American Indians have a long and

proud history of participating in trade unions, but an Indian government should have the right as a sovereign entity to decide

whether it is in its best interest to allow unions into its work place.

And it appears that the Federal courts time and time again have

agreed with me.

This Committee knows Indian casinos are government businesses, and by law are used to support tribal government operations and services. Indian gaming supports schools, health care,

roads, affordable housing, insurance, law enforcement, and many

other government activities. Many of you have seen firsthand how

these revenues have enabled Indian nations to support their

people.

In the Oneida Indian Nation’s case, not only has it allowed the

Nation to provide for its people, it has also allowed us to be the

first Indian nation in the country to turn back Federal tribal priority allocation funds, back to the BIA. To date, we have turned

back more than $3 million in Federal assistance.

Why do we turn these back, that we are lawfully entitled to? It

is because of sovereignty. Our people decided that sovereignty

meant that we would no longer ask for Federal handouts, as soon

as we were economically able to support ourselves. This distinguishes Indian casinos from their private sector counterparts in

Las Vegas and Atlantic City.

Without gaming revenues, many Indian governments would no

longer be able to provide essential services currently given to their

members. Because this revenue is so essential to many Indian governments, I can understand why some Indian nations would feel

that the possibility of a strike or work stoppage would threaten

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their ability to provide essential government services, and I can understand why some Indian nations feel that they cannot subject the

welfare of their people to the threat of a labor dispute.

This is why I believe that whether you support unions or not,

Indian nations ought to be left with making the choice for themselves. They ought not to be coerced into unions, into unionization,

or be forced to adopt policies that undermine Federal labor law.

Mr. Chairman, I appreciate the invitation to appear before this

Committee, and would be glad to answer any questions.

[The prepared statement of Mr. George follows:]

Statement of Keller George, President of the United South and Eastern

Tribes, Assistant to the Nation Representative, Oneida Indian Nation,

Chairman of the Oneida Indian Gaming Commission, on H.R. 103

Mr. Chairman, Congressman Rahall, Members of the Committee, my name is Keller George. I am President of the United South and Eastern Tribes (‘‘USET’’), which

is a confederation of 24 Indian nations ranging from Florida to Maine, South Carolina to Texas. In addition to being President of USET, I am an enrolled member

of the Oneida Indian Nation in New York, where I serve as Special Assistant to the

Nation Representative. I am also Chairman of the Oneida Indian Gaming Commission, the principal regulatory body that supervises gaming at Turning Stone Casino

and Resort, an enterprise of the Oneida Indian Nation.

Thank you for this opportunity to appear before the Committee on Resources to

present our view on the increasingly controversial matter of adding ‘‘unionization’’ clauses to tribal-state gaming compacts.

Included among the members of USET are some of the largest gaming tribes in

the United States, such as the Mashantucket Pequots, the Mohegan Tribe, the Oneida Indian Nation, the Mississippi Band of Choctaw, the Seminole Tribe, and the

Miccosoukee Tribe.

In fact, of the 24 Indian nations that comprise USET, 15 engage in Indian gaming

pursuant to the Indian Gaming Regulatory Act of 1988 (‘‘IGRA’’ or ‘‘the Act’’). Nine

tribes conduct Class III gaming pursuant to a tribal-state compact, and six tribes

engage in Class II gaming. To the best of my knowledge, none of these gaming facilities has a unionized workforce.

Let me make it clear that the purpose of my testimony is not to oppose unions.

I have nothing against unions. I think most reasonable people would agree—no matter which side of the political spectrum they represent—that unions have been responsible for many very positive developments in the workplace. They have championed the fundamental rights of employees to a safe place to work. They have advocated on behalf of employees for reasonable wages and decent benefits. The have

successfully argued in support of reasonable shifts and for time off to spend away

from the workplace. In fact, I recently heard on the radio an advertisement by a

labor union, which said: ‘‘This ad was paid for by the people who brought you the

weekend.’’ So, let me just say on a personal note to the union representatives here: ‘‘Thank you for that!’’ In addition, at the Oneida Nation, when we begin a new business development

project, we accept bids from any company regardless of whether it is a union shop.

And, the bid we approve is based solely on the merits of the application. I should

also mention that quite a few enrolled Oneida men and women are proud, card-carrying members of labor unions. We have Oneida members that are carpenters, ironworkers, and other trades that have significant union representation.

Just as the purpose of my testimony is not to oppose unions, I am not here to

endorse them either. In fact, I believe that this issue should have nothing to do with

whether you support or oppose organized labor.

The reason that I agreed to testify is that I believe that Congressman Hayworth’s

bill, H.R. 103, the ‘‘Tribal Sovereignty Protection Act,’’ raises some important issues

and questions that deserve Congress’ attention.

As the committee is aware, a controversy has developed over so-called ‘‘unionization agreements,’’ which would be included as part of tribal-state gaming compacts.

In California, it has been asserted that tribes were pressured into signing labor

agreements before they could execute gaming compacts with the governor. In other

cases, like New York, the legislature has passed a law that would include several

‘‘unionization clauses’’ to be made a part of any future compact.

My concern is that some states are using the process set up by the Indian Gaming

Regulatory Act to undermine Federal labor policy as endorsed by Congress under

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a different Federal statute—the National Labor Relations Act (‘‘NLRA’’). In other

words, one Federal statute is being used to overturn a different one in a way that

Congress did not intend. Let me explain.

I am not a labor lawyer; however, my understanding is that in passing the National Labor Relations Act, Congress worked very hard to find a middle ground, protecting the rights of employees to determine whether they wish to join a labor

union. Congress struck a delicate balance between the interests of unions conducting organizational campaigns and employers to oppose unions.

The National Labor Relations Act strikes just the right balance of allowing the

unions and employers each a right to present their positions to the employees who

must ultimately decide whether they want a union.

What the NLRA has accomplished, however, many states are now taking away.

These states are using IGRA to circumvent the NLRA by imposing rules that tip

the delicate labor-management balance strongly in favor of unions. These provisions

deny employees of Indian-run casinos the right to a free choice in deciding whether

or not they want to joint a union. As a matter of Federal policy, Congress already

decided through the NLRA that employees should have that free choice. The states’

use of IGRA to take away the employees’ free choice should be illegal.

Here are some examples of what I am talking about. In New York, the legislature

recently passed a law requiring that tribal-state gaming compacts include a provision that Indian governments must remain neutral during certain union organizational campaigns. I understand that a similar requirement was included in the California unionization agreements.

This provision means that Indian nations cannot educate their employees on

issues relating to unionization. As a result, employees are forced to decide whether

or not they want a union with only the union’s version of the issue. This one-sided

approach is not only unfair to employees; it is also contrary to the system established by Congress under the National Labor Relations Act.

The NLRA specifically includes a section protecting the right of employers to express their ‘‘views, argument, or opinion’’ in written, printed, graphic, or visual

form. The law expressly states that the employer’s presentation of its opinions to

its employees does not constitute an unfair labor practice. Yet states like New York

and California have single-handedly changed that law by making it a breach of the

compact for Indian tribes to exercise their right under the National Labor Relations

Act.

The New York law also undermines another fundamental concept of the

NLRA’that elections take place by secret ballot. The reasons for a secret ballot are

obvious. Congress recognized that employees should be free to cast a vote for or

against unionization without fear of retaliation by either their employer or by the

union.

My understanding is that the National Labor Relations Board has repeatedly

stressed the importance of a secret ballot. The NLRB stated:

‘‘The Board is under a duty to preserve [the secret ballot] and it is a matter

of public concern, rather than a personal privilege subject to waiver by the

individual voter. Moreover, to give effect to such a waiver would remove

any protection of employees from pressures, originating with either employers or unions, to prove the way in which their ballots had been cast, and

thereby detract from the laboratory conditions which the Board strives to

maintain in representative elections.’’

Despite the obvious importance of secret ballots, the New York legislation requires Indian-run casinos to recognize unions based merely upon a ‘‘card count,’’ in

which union organizers can pressure their peers and co-workers to sign union authorization cards. Under the New York law, once the union presents authorization

cards from a majority of the employees in a bargaining unit, the Indian nation must

recognize the union—even if the employees were coerced into signing the cards. This

destroys the whole purpose of the secret ballot and is contrary to the intent of the

NLRA to protect the free choice of employees in selecting a union.

I have been informed that in some instances, unions are able to collect authorization cards from a majority of employees in a bargaining unit, but during the election

by secret ballot the employees reject the same union that collected cards. Why does

this happen? Well, it could happen because union organizers pressured employees

to sign the cards. Or, it could happen because employees thought that unionization

was a good idea when they signed the card, but they changed their minds when they

were able to hear the employer’s perspective.

Whatever the reason, it is no wonder that Congress felt that secret ballots and

employer participation in campaigns were important tools to maintain the delicate

balance between the rights of employers, employees, and the unions.

70

This issue also involves tribal sovereignty. Indian governments ought to be able

to decide whether they want to accept unions in their government businesses.

Again, this has nothing to do with being for or against unions. American Indians

have a long and proud history of participation in trade unions. But an Indian government should have the right as a sovereign entity to decide whether it is in its

best interest to allow unions into its workplaces.

As this committee well knows, Indian casinos are government businesses that by

law must be used to support tribal government operations or programs; provide for

the general welfare of the Indian tribe and its members; and promote tribal economic development. Indian gaming supports schools, health care, roads, affordable

housing, insurance, law enforcement, and many other government activities. This is

an essential distinction between Indian casinos and their private sector counterparts

in Las Vegas and Atlantic City. Without this gaming revenue, many Indian governments would no longer be able to provide the essential services currently given to

their members. Gaming revenues have allowed some Indian nations to end the

centuries-old cycle of poverty and reliance on Federal dollars.

Because this revenue is so essential to many Indian governments, I can understand why some Indian nations would decide that they cannot afford to allow unions

to organize in their businesses. I can understand why some Indian nations would

feel that the possibility of a strike or work stoppage would threaten their ability to

provide essential government services. I can understand why some Indian nations

feel that they cannot subject the welfare of their people to the threat of a labor dispute.

That is why I believe that whether you support unions or not, Indian nations

ought to be left with making the choice for themselves. They ought not to be coerced

into unionization. And, as I have mentioned, states should not be allowed to let the

one Federal statute undermine Federal labor policy as decided by Congress under

the National Labor Relations Act.

I appreciate that this Committee is holding this hearing to highlight and discuss

this important and complicated issue. Thank you for the opportunity to participate

in this hearing, and I would be glad to answer any questions from the Committee.

Mr. HAYWORTH. Thank you, President George, and our thanks to

all three witnesses.

Chairman Marquez, in the episode in California, coercion is a

strong term, but was it your perception that to come up with compacts the Governor of California essentially forced tribes to adopt

rules forcing unionization?

Mr. MARQUEZ. I wasn’t present at the actual compact process,

but it was my understanding from those who were there as well

as our legal staff that in the eleventh hour the compact was

dropped on the table and said basically, ‘‘Agree to this, or no compact.’’ So to me, no, it is not a strong word. It is very appropriate

and fitting for the occasion.

Mr. HAYWORTH. So again, to amplify, there was in essence coercion, take it or leave it, here is the deal, you make way for unions

regardless of sovereignty to get this compact?

Mr. MARQUEZ. Yes, sir.

Mr. HAYWORTH. Thank you, Mr. Chairman.

President George, you talked about in your testimony the challenge confronting some tribes in terms of delivery of vital services

if compulsory union agreements are demanded or coerced, as we

saw in California by virtue of the compact situation. Could you amplify on that a little bit?

Mr. GEORGE. Yes, Mr. Chairman. Under the State law that has

just recently passed in New York, we don’t have much of a choice.

We don’t have the ability to say the reasons why we believe that

unions should not be established in our country. We had that obligation.

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We are probably one of the most liberal nations in giving benefits

to our people. We provide health insurance to all of our employees,

also with the option of them including in there, on a pro rata basis,

for their entire families to be included in that health insurance policy. It is very liberal.

We have probably two more holidays than the Federal holidays

that we have. We have a National Indian Day in New York—not

a national, but a State Indian Day in New York, where we give all

our employees that particular day off, and also the day after

Christmas and the day after Thanksgiving, so there have been

added—we of course do not acknowledge Columbus Day, so we

added one holiday to make up for that.

But we have a very liberal benefits package, and we feel like the

reason why no unions have started to try to unionize with us is because we offer that liberal package and have a system. If there is

a problem with an employee, there is a system that they go

through, through our Human Resources Department, on getting rid

of those issues, similar to what you would have with a committee

person at a union that goes through and advocates for that employee for whatever grievances they might have.

Mr. HAYWORTH. Thank you, Mr. President.

Councilman Garcia, what do you see as the future effect of the

10th Circuit Court of Appeals Decision, NLRB v. Pueblo San Juan,

in gaming compact negotiations?

Mr. GARCIA. I think, Mr. Chairman, that the two are tied. If the

decision had gone the other way, it is a wide open shop all over

Indian country, because that is the impact that it would have. But

there are some potential fixes in labor relations.

I think that had the union, the local union in San Juan Pueblo,

had been courteous enough to come before the tribal council at our

invitation, we would not have even reached this point. But it was

the force of the local entity that forced itself upon the company,

and I think that is really where it all started. We were forced, in

essence, to pass the ordinance, and the ordinance was questioned,

and the local union went up to the national level.

But I think that absent any local negotiations, any local respectful ways of operating, there is really the answer. And it is the same

thing with the compacts, that negotiations, the tribes have been so

willing to negotiate but, you know, there are terms within the gaming compacts that are used to—not to that respectful approach but

different approaches.

And I hope that this legislation at least will also reach the other

party, in that the real solutions are mutual solutions, and that they

are not one party versus another or one entity versus another. I

think that we are all one nation, and if we don’t begin to do that

as family members, community members, extended families, then

we will continue to see legislation here, legislation there.

And the solutions are not in that, in a roundabout way. The solutions are mutual. We should work toward that end, and if this legislation forces us to that point, come to the table. Let’s talk about

it. Let’s find some real solutions. And it is well-intended, so—

Mr. HAYWORTH. I thank you, Councilman Garcia. My thanks to

all three witnesses for their support of the legislation. Again, what

I think we are going to see subsequently is a case study about how

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some perceive sovereignty to be situational, and that is something

that is a cause for concern.

Having said that, I am pleased to recognize the Ranking Member, the Gentleman from West Virginia.

Mr. RAHALL. Thank you, Mr. Chairman. Mr. Chairman, this legislation is so abhorrent—mind, I just said this legislation, not the

author, whom we love very dearly, so it is not a personal attack— that I am just simply going to repeat my opening statement.

And since, Mr. Chairman, you were so impressed with my colleague from California’s eloquent opening statement, I am going to

yield my time plus what time he has of his own so that he may

further impress you. I yield my time to the Gentleman from California.

Mr. MILLER. I thank the Gentleman for yielding. And President

George and Chairman Marquez and Council Member Garcia, welcome to the Committee and thank you very much for your testimony.

It has been suggested that—and I am more familiar with the

California situation—that somehow the California situation mandates unionization, and let me make it very clear that it doesn’t,

because if it did, all the tribes would have unions in their casinos.

But the fact is, what it says is that people have a right to engage

in collective bargaining with the casino operators, should they so

desire to do so and they get the 30 percent required to go forward.

The fact of the matter is that a very small minority of the casinos

have union representation within their casino operations, among

the eligible employees, so this isn’t about mandating that.

But let us also understand—and I think I will match my credentials on sovereignty, in defense of sovereignty of the Indian nations

over my 28 years here, with anyone in the Congress—that it isn’t

absolute, just as nations all over the world find out from time to

time their sovereignty isn’t absolute, and that is a fact of life.

That is not to suggest that it should not be robustly protected,

and obviously the Indian nations have done a very good job of that.

But we had the situation where we could have had free and open

gaming, under Cabizon, among all the Indian nations in the country, and it is very clear that the Congress of the United States decided that that was not going to be acceptable, for whatever reasons. Some were good and some were not so good. Some motivation

was proper and some was improper. But the fact of the matter is,

an overwhelming majority of the Congress said this isn’t going to

happen.

So once again the Congress has stepped in, as it has from time

to time, and developed laws that govern the tribes, and part of that

was the arrival of compacts. We thought there would be more parity between the parties to the compact. Seminole obviously changed

all that.

But even the tribes understand it is not a question, Mr. Chairman, of whether it is situational. The question is in what context

does the sovereign, can a sovereign power survive. Even the tribes

are recognized. They are recognized in Proposition 5. They are recognized in Proposition—I believe also in 1A, that they could not

ask the people of California to approve the gaming and say that we

are not going to comply with the Clean Water Act, we are not going

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to comply with health and safety codes, we are not going to comply

with those kinds of operations. Not that they would, but they had

to make an affirmative statement that they would in fact provide

for that.

And in the negotiations they also said that they would comply

with the health and safety codes, that they would provide for nonmembers of the tribe to pay into unemployment insurance, to collect taxes, to develop a worker’s compensation policy equal to, or

let us know, or get into the State system. So they understood that

these are conditions that people would start to think about when

you are talking about a major employer, and these are major and

successful employers. So they agreed to, and later it was reflected

in the contract, that State inspectors can come onto land to look

at health and safety codes, to look at occupational codes, to look at

food safety, to look at water quality issues.

The question of employment is central to this. That is why the

question was raised and was put into the compact and was put into

the propositions, about the employees would be eligible for unemployment, they would be eligible for worker’s compensation. Alcoholic beverage, central to the operation, applicable laws would

apply, State laws.

So it is not situational sovereignty. The question was, under the

system that was set forth by the Congress of the United States,

that there would be an agreement reached. If the tribes had come

in and said, ‘‘We’re going to serve minors alcohol, we’re going to

use child labor, we’re going to do all these things,’’ obviously the

compact would have never been agreed, but Proposition 5 would

have never passed and Proposition 1A would have never passed.

Because the sovereign understood you are going to have to conduct

business in a manner which is acceptable to the general community

of, in this case, the State of California.

In those negotiations that resulted, the Governor, the State legislature, felt very strongly that people ought to have a right to engage in collective bargaining. It goes to the conditions of employment on the reservation, just as worker’s compensation, just as unemployment and others do.

I don’t think this is a question of bad faith. I mean, I am very

disturbed in the legislation that it says that the Governor of the

State of California acted in bad faith. I don’t think that is in bad

faith. And the suggestion, and Chairman Marquez, I disagree with

you, a take it or leave it offer is not coercion.

Take it or leave it offers are made every day in business transactions all over the country and in negotiations in this Congress

and in your tribe and in your family and a lot of other places. You

will say, ‘‘Hey, you want to use the car Saturday night? Be home

by 10. You don’t want to be home by 10:00, don’t use the car.’’ The

person figures out how important it is I use the car on Saturday

night. So I think we ought to be careful about the use of these

words, because the suggestion obviously is a reflection on our Governor and also a reflection on the process.

So what are we left with? We are left with a piece of legislation,

that its intent and purpose is to deny people the access to collective

bargaining. I happen to believe that collective bargaining or the access to collective bargaining is a proper subject for the compact

74

negotiations, the terms and conditions of employment on a reservation by a major economic entity.

And so I think it is very important that we understand what this

legislation is about. This legislation isn’t saying sovereignty and

only sovereignty, because it isn’t saying we shouldn’t use IGRA to

negotiate health and safety codes. It isn’t saying we shouldn’t use

IGRA to make sure that liquor laws are applied with, we shouldn’t

use IGRA to make sure that child labor is applied with, abusive

work places aren’t applied with. We wouldn’t do that. That would

be an unacceptable definition of sovereignty. We wouldn’t do that

with any other sovereign, with, you know, a city, county, State situation.

And so I really think that we have got to have some clarity here

to what it is, and I appreciate—look, many of the situations you describe are traditional labor negotiations that go on, day in and day

out, and you have had some have had success. You with the Communication Workers. You didn’t do, I guess it was Millworkers, or

I don’t know who was trying to organize the sawmill. And you are

right, you are right in your lawsuit, that the NLRB does not apply.

That was a determination lawsuit. You are right to pursue that,

absolutely.

But I think in this situation we ought to clearly understand what

this legislation is about, and obviously if I have time, Mr. Chairman, I would certainly welcome response by any of the panelists

to anything I have said. You may and probably very well do disagree with me.

Mr. HAYWORTH. Are there any responses you would like to offer?

Mr. MARQUEZ. I do. With all due respect, sir, when you are left

with the alternative of not having revenue share, not having your

special distribution share by the State of California, not having

funds to operate in my tribe, to write health care for my membership, that is not an alternative.

And I take issue with the fact that you say I had a choice. We

did not have a choice. You know as well as I know, the process

starts 10 years from the day it was finalized. So just to walk away

from the table at the last hour when you are told, ‘‘Take it or leave

it,’’ what are you left with? A court case that says you can’t operate. That is not a choice.

Mr. MILLER. That is the law of the land.

Mr. MARQUEZ. Yes, but you make it sound like that we had other

alternatives. We did not.

Mr. MILLER. No, I didn’t say you had other alternatives. I said

this is a rough and tumble negotiations, but that the suggestion

that—

Mr. MARQUEZ. With all due respect—

Mr. MILLER. —the offer itself is coercive, I don’t think is accurate.

Mr. MARQUEZ. With all due respect, you made it sound like we

had another avenue to pursue. We did not, so I just want to be

clear on that. And that is all I have to say, sir. Thank you.

Mr. MILLER. Thank you, Mr. Chairman.

Mr. HAYWORTH. Thank you, Mr. Miller.

The Gentleman from Michigan.

75

Mr. KILDEE. I appreciate the testimony of my friends, and I really have no questions of you, look forward to working with you on

many other issues. Thank you very much for your testimony.

Mr. HAYWORTH. Thank you very much.

The Gentleman from Oklahoma? The Gentlelady from California,

any other questions?

Ms. SOLIS. Thank you. I also appreciate the testimony given by

the witnesses, but as someone coming from the State Legislature

in California, we spent many, many years discussing this matter,

and in fact I worked very hard with some of the local unions to see

that we could work toward agreements, collective bargaining agreements.

And I feel very strongly about that aspect because many of the

folks that work at these different casinos and halls are not necessarily just Native American. Many of them, especially in southern California, happen to be Latino, at least in southern California.

I want to make my remarks specific to that area.

And there are a lot of folks that are striving to have a better life,

as well. They don’t have health care benefits. If it is not given to

them in their work place, they are not going to get it where they

live, in Palm Springs or other areas, because they are high distressed areas. We have a lot of people, especially from my population, that are uninsured, that need to have some sense of security

to make better wages.

That is not to say that you don’t provide in some way maybe

competitive wages, but there is also that sense of having some security and being able to be treated right, and not being harassed

or being discriminated because maybe you are not a Native American, as well. I mean, I have heard of those instances as well.

So I am empathetic to what you have to say, but I am also equally concerned about the work force, particularly in the case of California, where I know many people right now are losing their jobs.

And let’s face it, the service industry is one area right now where

a lot of folks are unemployed, and particularly in California.

I know that there are issues with respect to trying to provide

other health-related services and educational services, and I am

wholly in support of trying to provide that. In fact, I even have a

bill to recognize a Native American organization group in my district, not for the purposes of gaming but so that they could receive

assistance through the Federal Government to provide health care

and education.

To me, those are the No. 1 issues about keeping family, keeping

unity, and making sure that people have good working conditions,

and I think we can agree on that. I haven’t heard anyone really

say that they are not for providing a good work place, but again,

there are laws in place in California. We do have high standards,

and I would hope that all of us could work toward that.

I would just want to associate my comments with my colleagues

on this side of the aisle, and just state my opposition to this legislation. I don’t think we have to go this route. And I know that there

are other Native American tribes who are much better off financially than some of the tribes in California, and they can afford to

maybe make those payroll payments that they need to. But it is not

all competitive. I mean, it is not all crystal clear.

76

So I would just ask you to take a look at those factors and to

work with those of us that really do want to see some good work

happen in the next few years. And I really am disappointed that

this piece of legislation has to be discussed here in this manner,

because I do take it personal, that it is a shot at our Governor and

at those of us that really do care about trying to provide some protections for people in the work place and obviously on tribal lands.

Thank you.

Mr. HAYWORTH. I thank the Gentlelady for her comments.

In the time remaining, do you Gentlemen have any comments

you would like to address to the Gentlelady and to the Committee?

Yes, sir.

Mr. GARCIA. Mr. Chairman, no, I just wanted to relay my thanks

from our tribal council and from our Governor, Wilford Garcia, for

this opportunity, and that I know it is a hard job for all of you, and

I know that you also do what is best in your heart for the real solution. So thank you for this time.

Mr. HAYWORTH. Thanks. Thanks to you, Councilman Garcia. And

Chairman Marquez?

Mr. MARQUEZ. I just want to say thank you as well, and to point

out the fact that San Manuel, we are not anti-labor. We don’t propose that we don’t allow unions into a facility. Obviously, we allowed that to take place prior to Prop 1A and the compacts.

I am proud to state the fact that the people who have unionized

under the CWA are looking to get out of that union because they

no longer want to be part of that union because we have offered

better benefits than the union allows. You bring a good point. We

can do that. We can provide 100 percent medical and the likes, so

we do provide a better work place. What I don’t agree with is being

told by another sovereign that we have to do this. Give the choice

back to us.

Thank you.

Mr. MILLER. Mr. Chairman, will the Gentleman yield? Just yield,

if I might, on that comment.

The choice is really there because, as you said, if the people want

to leave the CWA, they will make that decision to leave. The fact

is that you can probably argue that you have made organizing very

difficult by the fact that of jobs that you do provide, the benefits

that you do provide, the wages that you do provide. Otherwise, you

know, people would be in there in constant turmoil, trying to organize, thinking this is ready for it.

I mean, that is a comment on the fact that the law in many ways

is working. Collective bargaining is a means by which employees

who feel disenfranchised or somehow disrespected in some fashion

with respect to their job, have an outlet to try to bring an action

against the employer. The fact that that isn’t happening on these

properties suggests that they are probably very well run, and they

are offering not only competitive but maybe better jobs than in the

surrounding area.

But the choice is there to ask for that because you don’t think

your employer is responding, and the same choice is what you may

be talking about, to say ‘‘We no longer want to participate in the

unionized operation, in the collective bargaining arrangement, and

we therefore want to petition for decertification.’’ I mean, so the

77

fact of the matter is, that is about the way it is supposed to work,

and the choice is there.

You know, the suggestion was in one of the testimonies that this

mandated that you had to have the union. It doesn’t do that at all.

And so it sounds to me like it is kind of working the way it should,

with people freely determining whether or not they want to trade

their work place or not.

You know, my mother used to run a restaurant, and the unions

went to organize her restaurant. She put it up to all the employees

and they said no. So then they started picketing it because, you

know, her son was a Congressman, and she kept saying no and no

and no and no. I never ate at my mother’s restaurant, OK, because

I couldn’t cross the picket line. But her employees made a choice,

you know. That is kind of the system.

Mr. MARQUEZ. Our tribe made a choice to allow unions to come

in and do that—

Mr. MILLER. I understand that, right.

Mr. MARQUEZ. But also, as your mother has done, it is also a sovereign right to say no.

Mr. MILLER. No, no.

Mr. MARQUEZ. And a tribe should have that right—

Mr. MILLER. It is the right of her employees to have that choice.

Mr. MARQUEZ. Yes, yes, but the tribe should have that right to

allow a union to come in or to adopt an ordinance to allow the

unions to come in. That is a tribal decision.

Mr. MILLER. I appreciate that, but I still think it is a legitimate

part of compacting.

Mr. HAYWORTH. Any other—

Mr. GEORGE. Mr. Chairman?

Mr. ABERCROMBIE. Mr. Chairman?

Mr. HAYWORTH. I would be happy to recognize the Gentleman

from Hawaii. I just think President George had a comment, I believe.

Mr. GEORGE. Mr. Chairman, I too would like to give you my

thanks for having us here and letting me reiterate the nation’s

views. But under New York law it is different than in California.

It is very different, the law that the legislature passed, and that

is what we are concerned about.

We have been operating our casino for almost 10 years now

under the—when we got our compact in 1993, and the compact

works. But in this new legislation, that we have to allow unions to

come in and collect cards, we don’t have—we have to remain neutral. We can’t say these are the benefits that we have offered, this

is what the jobs start with.

I dare say that we are probably $2 over the minimum wage for

entry-level jobs, and that is why we are able to get our employees

and retain our employees with health insurance, liberal benefits for

time off, liberal benefits for sick time and all of those types of

things. But with this we don’t have any option. We have to let

them come in. Say if we have 2,000 employees and they get the

majority of cards signed over a period of time, the law says we

have to recognize that union, and that is pretty much what we are

concerned with.

78

So we have been in that situation, too, because we do offer jobs

above the pay scales that you can get in the general community or

other jobs in the State. We have been able to retain our employees,

and we have a very satisfactory level. That is why we haven’t had

any attempts of unions to organize up to now, but it is mandated

by law, and that is what we are saying.

But if we had that same authority or same ability such as grocery stores that are in the news lately, that they can tell their employees, ‘‘These are the benefits you are going to get,’’ and offset

what the unions are telling them that is all we are saying.

I am not against the union and I am not necessarily for unions.

I have never belonged to a union because the majority of my time

of being around was in the military and then working for my nation. So we are not opposed to unions, but there should be a level

playing field on how the process is. That is all we are saying, and

we appreciate this, because the debate has started and I think we

have to take a closer look at this, because some States, as I said,

are using this one law to bypass another law, and we are very concerned about that.

Mr. HAYWORTH. The Gentleman from Hawaii, Mr. Abercrombie.

Mr. ABERCROMBIE. Well, I couldn’t help but observe, Mr. Chairman, that even though Mr. Miller couldn’t eat in his mother’s restaurant, he apparently was able to find some other venues. He

doesn’t look too undernourished to me.

[Laughter.]

Mr. HAYWORTH. Rising to the defense of my colleague on the minority side— Mr. ABERCROMBIE. Well, Mr. Chairman, I might observe you are

not exactly the one that should be rising to— [Laughter.]

Mr. HAYWORTH. I was going to point out, Mr. Abercrombie, that

though you are blessed with the figure of Adonis, you also perhaps

have some— Mr. MILLER. I think we ought to stop this whole conversation.

Mr. HAYWORTH. But we are not going to go there any longer. We

all appreciate the chance to understand that there is a preponderance of physical evidence that we certainly enjoy the finer points

of gourmet eating.

Mr. MILLER. Mr. Abercrombie has been known as a scratch knife

and fork man for a lot of years.

Mr. ABERCROMBIE. Mr. Chairman, I will admit that I did bulk up

for winter, but I have seen the light.

Mr. HAYWORTH. Well, that is good to know, and we look forward

to other nutritional guidelines in the days ahead, perhaps not

through an act of Congress but informal advice for all of us.

We also welcome to the dais the Gentleman from Idaho, and he

is happy to be here. And I would ask, as I thank our witnesses for

being here with this panel, we will continue to have the debate and

we appreciate you coming in and being with us today. Thank you

for your time and your testimony.

As we welcome up panel five, I would also ask unanimous consent that the Gentleman from Oklahoma, Mr. Watkins, be able to

join us here for the testimony. Objection?

Hearing none, so ordered.

79

Mr. HAYWORTH. And we welcome Congressman Watkins even as

we welcome Governor Bill Anoatubby of the Chickasaw Nation,

Principal Chief Chad Smith of the Cherokee Nation, and Gregory

Pyle, the Chief of the Choctaw Nation of Oklahoma, as they come

to testify on H.R. 3534, to provide for the settlement of certain

land claims of the Cherokee, Choctaw, and Chickasaw Nations to

the Arkansas River bed in Oklahoma. Thank you gentlemen for

coming. Governor Anoatubby, welcome. Appreciate your coming,

Bill, and look forward to your testimony.

STATEMENT OF BILL ANOATUBBY, GOVERNOR,

CHICKASAW NATION

Mr. ANOATUBBY. Good morning, Mr. Chairman and members of

the Committee. Thank you very much for including us in this hearing, and to say we are privileged to be here to speak to the gist

of an issue that is certainly of great importance to us and to the

other two tribes here. You have my written testimony, Mr. Chairman, and we certainly know that is part of the record so we will

keep the comments brief this morning, or excuse me, this afternoon.

This is an issue that has been on our table for many, many

years. In fact, as a result of the Supreme Court ruling in 1970,

these three tribes have been restored ownership of the bed and

banks of the Arkansas River, and you will hear more of the details

regarding that ownership and history of that ownership and the

legal history from the other two witnesses.

Let me just simply express a few thoughts here. For 32 years,

actually for 95 years, the three tribes were denied access, denied

the fact that they owned this property. Then after the Supreme

Court ruling, we have actually been denied access. It is time for us

to bring this to a settlement.

At this point we are further ahead and closer to settlement than

perhaps we have been in many years.

We are thankful that this Congress is taking up this legislation.

We are thankful for the authors, for Mr. Carson and his effort to

bring this bill forward, and we are also thankful at this point for

the Bureau of Indian Affairs; some people may wonder how you

could hear those words uttered from the lips of a tribal chairperson

and a Governor, but we are thankful that they have come to the

table and appointed a negotiation team to deal with this. We are

so very close now in coming to agreement.

This legislation that you have before you is beneficial not only to

the Indian tribes in question but also to many citizens of the State

of Oklahoma, especially those who are residing in property, on

property, or utilizing property that is in question here. So this is

not just a good thing for the tribes but it also is good for Oklahoma

to settle this issue.

I listened to Mr. Smith’s testimony, and I think that if you listened carefully you see that it shows some encouragement and that

there are some decisions that we are getting close to making. But

one thing that he indicated that I respectfully request that this

Committee please do not take into account and listen wholeheartedly, we do not need to delay this legislation in any way.

80

In fact, this bill has brought us closer and closer to reaching a

settlement or calculating a number that we can agree to. Also the

court case, the judge is awaiting how this legislation should proceed. So I would ask humbly that this august body continue to consider this legislation and to move it forward. We have been trying

to resolve this issue for over 30 years, and if it weren’t for this legislation and the court case, it is highly likely we would not be

where we are today and as near to a settlement as we are.

So I am here to support the legislation. I am here to ask your

consideration and your support for it, and I ask you please, move

it forward. Thank you.

[The prepared statement of Mr. Anoatubby follows:]

Statement of The Honorable Bill Anoatubby, Governor, Chickasaw Nation

Mr. Chairman and members of the Committee:

I am Bill Anoatubby, Governor of the Chickasaw Nation. It is a pleasure for me

to appear before this committee and I appreciate your inviting me to do so. As you

will be hearing (or have already heard) from the other tribal leaders, I will keep

my remarks brief.

This committee is presented with the opportunity to begin to right an injustice

on behalf of the United States that has endured for almost a century. We are here

before you after an almost 40-year struggle in dozens of courts, including the U.S.

Supreme Court; however, it has been made abundantly clear to all who have visited

this situation that it can only be resolved by Congress. We seek your help.

Please allow me to briefly outline the history of this matter that brings us to

where we are today. In the early 19th century, these three tribes entered into treaties with the United States Government to give up millions of acres of land in the

east and to remove westward to allow for growth and expansion of the country’s

frontiers. In exchange, we were conveyed lands in what is now Eastern Oklahoma.

For the remainder of the century, the tribes had complete governance over their respective territories and domains; however, subsequent actions by Congress, particularly the allotment process under the Dawes Act, reduced their domains to a little

more than 100,000 acres. Those lands include the bed of the Arkansas River from

its confluence with the Canadian River eastward to the Arkansas–Oklahoma state

line, approximately 65 miles.

It has been determined through various court decisions and agreements that from

Muskogee, Oklahoma to the confluence of the Canadian, Cherokee Nation owns the

entire riverbed. From the Canadian confluence down to the Arkansas State Line,

the Cherokee Nation owns the north half of the riverbed and the Choctaw and

Chickasaw nations own the south half. Due to meanderings of the river over the

past century, the wet bed and dry lands of the bed comprise over 25,000 acres of

land, the title to which is held by the United States in Trust for the three tribes.

The tribes’ problems began when Oklahoma became a state in 1907. Relying on

an erroneous opinion in 1908 by the solicitor, the U.S. Department of the Interior

incorrectly assumed that Oklahoma became the owner of the riverbed. In 1946, the

government began construction of the Kerr–McClellen Navigation System on the

river. Because of the misplaced belief that the state of Oklahoma owned the riverbed, the tribes were neither consulted nor compensated for the taking of thousands of acres and extensive damage to their property.

In 1970, the U.S. Supreme Court ruled that the title to the riverbed was in the

tribes when Oklahoma became a state and, therefore, it could not have passed to

the state under the Equal–Footing Doctrine. Thus, the tribes continued to own the

riverbed as they did in 1907 and 1946, and as they do today.

For 60 years prior to 1970, the Bureau of Indian Affairs did not exercise its trust

responsibility to protect and exploit these tribal lands. As a result, adjacent landowners began to occupy the portions of riverbed that were dry land and continue

to be in possession today depriving the tribes of the use of their dry surface lands.

Mineral interests either went undeveloped or were exploited by others claiming to

own them. Millions of tons of sand and gravel were mined from the riverbed and

used to construct the structures required in the navigation system without compensation to the tribes. The tribes have lost tens of millions of dollars for which they

would have otherwise been compensated but for the mistaken belief by the government that they were not the rightful owners.

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In 1989, the tribes brought suit in the Claims Court seeking damages for the failure of their Trustee to properly manage this property. That litigation is still pending

but would be dismissed if this settlement is approved.

For 20 years after the 1970 decision, the boundaries of the tribal lands went undetermined. Finally, in 1990, the Bureau of Land Management began and has completed a cadastral survey of the riverbed lands. However, due to the fact that the

boundaries were created by river meanderings, the title to the lands remained in

question until the survey was completed about 1995. During this 25-year period, it

was difficult to properly and completely exploit the oil and gas interests due to the

title situation. Thus, income was not received that would otherwise have been paid

to the tribes, contributing to the tens of millions of dollars already lost.

The tribes have spent countless hours over the past 30 years and hundreds of

thousands of dollars calculating their losses, meeting with various government officials and litigating in the courts. Our experts and advisors have meticulously studied the records and made estimates and appraisals to determine those losses and

evaluating our riverbed property. You have or will have that information before you.

As I said earlier, the government and the tribes can only extricate themselves

from the quagmire they find themselves and achieve justice with your help. The legislation you are considering will benefit everyone concerned. The tribes will finally

be compensated for the long-standing damages they have endured because of the

circumstances that bring us here. The litigation in the U.S. Court of Claims will

end. The tribes will disclaim their interest to the thousands of acres of land occupied

by others who thought they were the rightful owners. For this, the tribes would also

be fairly and justly compensated. The government will be relieved of its Trust responsibility to remove the thousands of third-party occupants which could take up

to 20 years to litigate at a cost of tens of millions of dollars. But, just as importantly, with the passage and implementation of this legislation, this tragic saga

would finally come to an end.

Thank you very much for having me here today. I respectfully ask you to approve

H.R. 3534.

Mr. HAYWORTH. Thank you, Governor, and now we will hear

from Chief Smith. Welcome.

Mr. SMITH. Mr. Chairman, with regard, Chief Pyle goes next.

Mr. HAYWORTH. OK, then, we will turn to Chief Pyle and we will

await Chief Smith after a while.

STATEMENT OF GREGORY E. PYLE, CHIEF, CHOCTAW NATION

OF OKLAHOMA

Mr. PYLE. Thank you, Mr. Chairman, and members of the

Committee. My name is Greg Pyle. I am Chief of the Choctaw Nation of Oklahoma. Today I had submitted 10 pages of written. I will

condense it down to one page, if it pleases everyone, for time constraints.

I am here today to support passage of a long-awaited resolution,

the tribal claims relating to the Arkansas River bed in eastern

Oklahoma. That would be H.R. 3534, introduced and supported by

Congressmen Carson, Watkins, Kildee, and Largent. The Choctaw,

Cherokee, and Chickasaw Nations come before you today to present

a proposal of settlement of disputes regarding Arkansas River bed.

We prefer a settlement rather than litigation to displace thousands

of occupants along the river.

Prior to the 1800’s, the three tribes lived in the southeastern region of the United States. The lands occupied by the tribal people

made tempting targets for European neighbors moving in during

the late 1700’s and early 1800’s. Aggressive efforts were made to

force the tribal people to move off their lands, and in 1831 the

Choctaws were the first of three tribes to travel the Trail of Tears

to what is now Oklahoma.

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As part of the resettlement process, the tribes signed treaties giving up lands in the homelands and taking ownership of lands and

waters in the new territories. The terms of the treaties were dictated by the United States, and included transfer in fee simple of

all title and rights to the riverbed of the Arkansas River.

Over the course of the years, the riverbed has shifted, creating

over 7,500 acres of dry land. Farmers moved onto the property and

are farming it today without legal authority. Also, sand, gravel,

coal and gas resources associated with the river were extracted and

sold by non-Indians, without any consideration or compensation to

the tribes. This creates a problem with tribal ownership being asserted.

In the 1940’s the Kerr-McClellan Dams and power generation

system was developed and built on the Arkansas River. Without

any regard to tribal rights, millions of tons of sand and gravel and

stretches of useable land associated with the river were taken by

the Federal Government. To this day, there has been no compensation to the tribes for this taking. This is possibly the only instance

where tribal trust property supposedly under Federal protection

was taken by the Federal Government without any consideration

or compensation.

In 1970 the Supreme Court held that the three tribes owned all

rights to the Arkansas River and its resources. In 1989, action was

filed in Federal court for damages for mismanagement of tribal

trust properties.

We do not want the disruption of personal lives and fortunes

which would be caused if the United States had to file between 600

and 800 cases to clear the tribal title and displace current possessors of the 7,500 acres of land on the river and that the tribes are

reclaiming. Once the first acts are filed, title to property along the

river could be clouded for decades.

We proposed to the congressional committee that compensation

be paid from the Federal Government rather than penalize the individuals using the property along the riverbed. The tribes proposed legislation beginning at over $100 million, and now proposed

at $41 million, in compensation of loss of tribal resources, and it

buys 7,500 acres of land, minerals, as well as makes provision for

the government to take steps to clear the title of land for the current occupants. The bill also contains a one-time payment of about

$8 million for the continued production of electricity by power

heads located on the river.

Simply speaking, the tribes are willing to give up all their rights,

past and present and future, in the 7,500 acres of land created by

this wandering Arkansas River, in return for these payments.

Thank you.

[The prepared statement of Mr. Pyle follows:]

Statement of The Honorable Gregory Pyle, Chief,

Choctaw Nation of Oklahoma

Mr. Chairman, Members of the Committee, ladies and gentlemen.

My name is Greg Pyle and I am the Chief of the Choctaw Nation of Oklahoma.

I am here today to support the passage of a long-awaited resolution to the tribal

claims relating to the Arkansas Riverbed of Eastern Oklahoma, H.R. 3534,

introduced and supported by Congressmen Carson, Watkins, Kildee and Largent. I

say long awaited, since claims involving the River itself and the resources and lands

associated with it have been before the Courts, the Tribal Councils and the ConVerDate 11-MAY-2000 12:29 Jan 14, 2003 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6621 78759.TXT HRESOUR1 PsN: HRESOUR1
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gress continuously over the past 35 years. We are asking today for legislative support which would lay to rest all these issues, and which would benefit the United

States, the Tribes and all the citizens of Oklahoma. We are asking for your support

today as a matter of equity and as a matter of fulfilling the government to government and trust relationships between our tribes and our Country.

Background

Prior to the 1800s, the Choctaw and the Cherokee and Chickasaw Nations lived,

and had lived from time immemorial, in the Southeastern region of the United

States. We were good friends to the colonists, supporters of the fledgling Nation and

had been very successful in accommodating our agrarian lifestyle to that of our new,

European neighbors. Unfortunately, our lands made tempting targets, and soon,

various factions were lobbying to take over the lands of the Choctaws. For a period

we resisted, but, with the other tribes of the Southeast, we were forced to give up

our lands. Our Tribes were forcibly removed to what was then the newly purchased

territory of Oklahoma, the so-called Indian territory. This removal, known as the

Trail of Tears, took place in stages in the 1830s. As part of this policy and resettlement, our Tribes signed treaties giving us title to lands and waters in the new territories. These treaties, the terms of which were dictated by the United States, included transfer, in fee simple, of all title and rights to the riverbed of the Arkansas

River.

The ownership by the Tribes of the River, its bed and its resources, was renewed

by the Federal government by the Act of April 30, 1906 (34 Stat. 137), which held

that all the rights of the tribes were reserved to them, but were to be held in trust

by the United States. Unfortunately, when the State of Oklahoma was admitted to

the Union, a Solicitor in the Department of the Interior gave an erroneous opinion

on the River’s ownership. In response to a State request for clarification, the Solicitor gave an opinion stating that the River was now the property of the State.

Strange as it seems at this time, no one challenged this opinion (as a matter of fact,

it is questionable at this time as to how many people knew of it). Based on this

opinion, the State treated the river as part of its property, and dealt with the

United States and other parties as if it owned the River. The Tribes complained a

number of times that their rights in the River were being ignored, but the United

States, which under law had the responsibility to protect the interests of the Tribes,

refused to take any action.

During the 50 years following the creation of the State of Oklahoma and the erroneous opinion, two major changes in the River occurred. First, the riverbed of the

Arkansas River shifted. Over time, the course of the River moved in a meandering

fashion. Through the process of accretion and avulsion, former riverbed became dry

land. More than 7,500 acres of land was created in this fashion. Though by law, this

land became part of the tribal property, no Federal agency took this into consideration. I don’t know what it is like in your States, but in Oklahoma, if land, which

is good for farming or pasturage, is left vacant, the neighboring farmers have a

tendency to move in. That is what happened. Over the past 80 years, non–Indian

farmers have moved onto the property and are farming it or using it, without any

legal authority. At the same time, under the authority from the State, sand and

gravel and coal and gas resources associated with the River were extracted and sold

by non–Indians, without any consideration or compensation to the Tribes. This

causes a problem, now that the tribal ownership has been reasserted.

Second, in the 1940’s, as part of the Federal move to control floods and watercourses, the giant Kerr–McClellan Dams and power generation system was developed and built. Without any regard to tribal rights (which at the time existed but

were not recognized) millions of tons of tribal sand and gravel and stretches of useable land associated with the River, were taken by the Federal Government. To this

day, there has been no compensation to the Tribes for this taking. This constitutes

the only instance, of which we are aware, where tribal trust property, supposedly

under Federal protection, was taken by the Federal government without any consideration or compensation.

In 1965, the Tribes finally gained permission to sue the State of Oklahoma for

clarification of the title to the Arkansas River. In 1970, the United States Supreme

Court, 396 U.S. 620 (1970), held that the three Tribes, together, owned all rights

to the Arkansas River and its resources.

Current suit against the government

For the last three decades, the Tribes have sought redress for the wrongs associated with past mismanagement by the Interior Department of the River. These include:

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• Failure of our trustee to protect Indian interests to the 7,500 acres of new property; • Failure of our trustee to protect Indian interests to minerals, including sand

and gravel and coal and gas. • Failure to compensate the Tribes for the taking of resources involved with the

Kerr–McClellan Dam system, takings which were done by the Federal government itself; • Failure to make plans for the utilization of these properties for the benefit of

the Tribes in the future.

Sporadic negotiations with the United States have been unsuccessful, despite an

Interior opinion in the 1970s that if the United States had known when the water

projects were built that the tribes owned the river, compensation would have been

paid. While negotiations have had their ups and downs over the years, experience

has taught us that no one will protect our interests, if we do not do it. For that

reason, an action was filed in Federal Court in 1989 for damages for mismanagement of tribal trust properties. Delay after delay has happened, and we are still in

Court with the Department of the Interior over these charges.

In the meantime, another factor has developed. The United States now realizes

that as the trustee for the Tribes, it is the responsibility of the government to sue

the current occupants of the land to quiet title and gain possession for the Tribes

of the 7,500 acres in new property. These lawsuits would involve at least 600 litigants (that we have identified). One such action, which was filed by the United

States, was dismissed without prejudice of renewal, for procedural grounds. However, the precedent for such suits has been established.

If these actions go forward, total chaos regarding property rights and values along

the Arkansas River will occur. Unless a settlement can be reached, the United

States will have to file between 600-800 cases involving thousands of litigants and

occupants, to clear the tribal title and displace current possessors. Once the first actions are filed, title to property along the river will be clouded for decades. The

Tribes do not want this end to the tale, but know they must come to Congress to

protect their rights. Mr. Chairman, let me state on behalf of the Choctaw Nation

that we hope there will never be a need for these lawsuits. We do not want the disruption of personal lives and fortunes which these suits will cause, and we know

that the political costs of such actions will be great. At the same time, the status

quo, where the rights of the Tribes have not been protected, is unacceptable.

The proposal

Due to the delay in the lawsuits and the cost involved in pursuing them, along

with our desire to resolve these issues in such a way that does not disrupt the lives

of any Indian or non–Indian, we have joined with our fellow Tribes, the Cherokee

and the Chickasaw, to put forward a legislative proposal to resolve, once and for

all and in a comprehensive fashion, all issues regarding the Arkansas River. In its

entirety, the proposal is:

• Agree to pay the Tribes a sum of approximately $41M for compensation of loss

of tribal resources for the last 9 decades of BIA mismanagement. It also buys 7,500

acres of land and the sand and gravel, coal and gas, and any other minerals, from

the Tribes and makes provision for the government to take steps to clear the title

of this land for the current occupants. Also, the bill contains a one time payment

of about $8 M for the value of land used for the continued production of electricity

by powerheads located in the River.

• The three Tribes agree to give up all rights to the 7,500 acres of land transferred, and to settle all claims against the U.S. for damages from past mismanagement. No interest on the past claims is sought.

• Funds would be deposited in tribal shares in accounts which the Tribes could

use for various social, educational, health and other programs, including the purchase of very specifically designated property to replace part of the 7,500 acres

transferred.

That’s essentially it. Seems simple enough, and it is, though the attorneys take

4 pages to say it in statutory language. The Tribes, in exchange for one payment,

give up all rights, past, present and future, in the 7,500 acres of land created by

the Arkansas River, and claims for damages arising for past mismanagement, and

any rights to resources taken from the property in the future.

We have a representative of the Administration here to testify today, but it has

been plain for some time that the Department of the Interior has supported the

concept of such a political solution without caveat. Let’s be plain in this statement,

this goes way beyond a simple lawsuit. This is a problem crying for a political solution. This is the only taking of tribal property for a Federal use, without compensation, on record, and it continues to this day. The fact that this was all based on

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one Solicitor’s misunderstanding of the law is irrelevant. This is where we are. The

people in Interior, and in my opinion, many in Justice, are aware of this fact and

want there to be an end to these problems.

Our problem in resolving this with the Departments seems to be a matter of

money, and to be more specific, a matter of budget. For decades, the Federal government has offered to settle for a $10 M token payment. IN ALL OF THAT TIME,

NO RATIONALE FOR THIS AMOUNT HAS BEEN PRODUCED. We have been

told this is the cost the Federal government would spend to sue for possession of

the property. We have been told this is what the ‘‘nuisance value’’ of dealing with

the Tribes is going to be. We have been told that this is the amount, because that’s all there is.

To be blunt, Mr. Chairman, we are caught in a budget squeeze. The Department

of the Interior is concerned that any settlement reached will ultimately have to be

accommodated within their budget allocation. Likewise, the Department of Justice

is concerned that the claim will come out of its judgment fund. We know times are

hard with budget constraints, but we are tired of being the pawns in a Departmental budget chess match.

In contrast, the Tribes, with Federal support, have conducted several studies to

show that the value of the land and the resources the Tribes have lost, or which

will be lost, is much higher. Originally, we started this process over 15 years ago

asking for over $100 M. dollars. Through a process of ‘‘negotiating with ourselves’’,

we have now arrived at a figure for which we are willing to settle our issues for

$49M. This includes a one time payment to cover the loss of revenue caused by the

production of electricity in the future. Frankly, Mr. Chairman, we have come to the

end of our patience. If the Tribes are not able to settle for a reasonable figure for

these claims, we have to consider proceeding with our Court actions, including those

for restitution of control over the 7,500 acres of land.

If a statutory settlement can be reached, millions of dollars in attorney and litigation expense on the part of the government, the Tribe, and the current constituent

possessors of the property can be saved. Finally, let me add for the benefit of my

representatives, it is a fact that any settlement figure paid to the Tribes will stay

in Oklahoma. It will provide the Tribes with sorely needed capital for economic development, and such tribal services as health care and education. It will benefit the

entire State.

Mr. Chairman, I want to thank you for asking me to testify on this measure so

crucial to my tribe, and I want to ask you to fully support H.R. 3534.

Mr. HAYWORTH. And we thank you very much, Chief Pyle. And

now we hear from Chief Smith.

STATEMENT OF CHAD SMITH, PRINCIPAL CHIEF,

CHEROKEE NATION

Mr. SMITH. Let me begin by thanking you, Chairman, and other

members of the Committee for this opportunity to testify today in

support of this bill, H.R. 3534. I would also like to thank the members of the Oklahoma congressional delegation who sponsored the

bill, Representatives Brad Carson, Wes Watkins, Steve Largent, as

well as Representative Kildee of the Committee, who has always

been a friend of the Cherokees and other Indian tribes in the

United States.

My name is Chad Smith, and I am the Principal Chief of the

Cherokee Nation, the second largest tribe in the United States. The

Cherokee Nation is located in northeastern Oklahoma, and we

share a common boundary along the Arkansas River from basically

Muskogee down to Fort Smith. The river is not only our common

boundary, but it is also a wonderful and valuable resource that the

three nations share.

I just want to point out to you, for reference, what we are talking

about. This is a map. If you would look, Muskogee, Oklahoma is

here. Tulsa is probably up here. And Fort Smith is here. We own

this riverbed from Muskogee down to Fort Smith.

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The river has moved, through natural and manmade causes, in

the last 100 years, and really what we are talking about is damages to the whole river, but also lands that are now dry lands

which are located in the lower portions of the river, and you can

hardly see, but these are 7,700 acres that is indicated in brown

here. It is those lands that are in dispute. We believe we own them.

There are folks who have farmed those. As part of this bill, we

would give up our claim to that title and let it be vested in those

occupants.

What I wanted to share with you in these few moments is really

the dignity of the title of the Cherokee Nation and the other two

tribes. In 1830 the Indian Removal Act was passed, which was

unique because Congress allowed the President to exchange lands

in the southeast for our five tribes with those in the Indian Territory. And what was so unique about it, it was an exchange of land

from government to government. In fact, in the following treaty

with the Cherokees in 1885, the Treaty of New Echota, which led

to the infamous Trail of Tears, the Cherokee Nation ceded its interest in the southeast and the United States ceded its interest to the

Cherokee Nation in Indian Territory.

At statehood, when the lands were allotted, it was a mistake that

the State acquired these lands, but in 1970 the U.S. Supreme

Court quieted title to this riverbed to our three tribes. Since 1966

we have been litigating this matter. Let me share with you why we

believe compensation is in order.

Because of the adherence to this erroneous legal opinion referred

to by the Department of Interior, BIA did nothing between statehood and 1970 to protect these riverbed interests. In the process,

after World War II there was a mammoth economic project, the

McClellan-Kerr navigation system, in which the U.S. Government

dredged the river, changed the river, and did not compensate the

tribes for the use of that riverbed or the damage to it. In fact, two

power heads now exist, producing power for the last 50 years.

If it was known then that the title vested in our three tribes, I

believe the government would have compensated us for it. In fact,

in the last decade Congress enacted a second settlement for damages to the Standing Rock Sioux and three affiliated tribes arising

from the construction of the Garrison and Oahe Dams. Also, in

1994 the United States negotiated a legislative settlement with the

Colville Tribe for the use of its land for power and reservoir sites,

boasting to be the largest claims settlement ever negotiated, $53

million plus an annual payment of $15 million in perpetuity.

This is a bill that is good for Oklahoma. There is 300 landowners

and we anticipate there are 7,000 interests in the 7,500 acres that

would have to be litigated. The Department of Justice anticipates

it would take 20 years and at least $10 million to litigate. So what

we propose in this bill is to resolve that. We give up title to those

lands. We receive damages for the construction of the navigation

way and other damages to that riverbed, and it is something that

is good for not only our three tribes but for the State of Oklahoma

and all of our constituents.

Thank you, sir.

[The prepared statement of Mr. Smith follows:]

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1See Treaty of Holston, July 2, 1791, 7 Stat. 39, 40.

2See the Act of March 26, 1804, 2 Stat. 289.

Statement of The Honorable Chad Smith, Principal Chief,

Cherokee Nation, on H.R. 3534

Mr. Chairman and members of the Committee:

Let me begin by thanking you, Chairman Hansen and the other members of the

Committee, for the opportunity to testify today in support of this bill, H.R. 3534.

I would also like to thank the members of the Oklahoma congressional delegation

who sponsored the bill, Representatives Brad Carson, Wes Watkins and Steve

Largent, as well as Representative Dale Kildee of the Committee, who has always

been a friend of the Cherokees and other Indian tribes in the United States.

My name is Chad Smith, and I am the Principal Chief of the Cherokee Nation,

the second largest Federally-recognized Indian tribe in the United States. Cherokee

Nation is located in northeastern Oklahoma, and we share a common boundary

along the Arkansas River, from the point of confluence of the Canadian River to the

Arkansas state line, with two other great Indian nations, the Choctaw and Chickasaw Nations. The River is not only our common boundary, but it is also a wonderful

and valuable resource that the three Nations share.

As the members of this Committee no doubt know, the Cherokee, Choctaw and

Chickasaw Nations have not always been in Oklahoma, and I am sure that you

know that how we came to be in Oklahoma is by no means a happy story. Although

culturally and linguistically the Cherokee people are very different from the Choctaw and Chickasaw people, the members of our three Nations, along with our neighbors the Creeks and Seminoles, were all forcibly uprooted from our aboriginal homelands in what is now the southeast United States about 140 years ago and marched

over the Trail of Tears to lands west of the Mississippi in the Indian Territory. The

story of how that came to be, how the Government of the United States swept us

up from our homelands east of the Mississippi River and deposited us in a completely unfamiliar country is the sad part of our histories that the three Nations

share along with our brothers the Creeks and Seminoles. It is also the story of how

we came to own the bed and banks of the Arkansas River within the State of Oklahoma.

It should come as no surprise that the events of Indian removal were an integral

part of the legal history of tribal ownership of the bed and banks of the Arkansas

River in Oklahoma, because the Indian removal was accomplished only in part

through force; it was facilitated by treaties of territorial cession—cessions by the Indian Nations and cessions by the United States. I will attempt to give the Committee an overview of that legal history and then explain why this is a good bill,

one that Congress should pass into law.

The Cherokee Nation executed treaties both with Britain and, after Independence,

with the United States. Our first treaty with the U.S. was the Treaty of Hopewell,

on November 28, 1785, which purported to set out the boundaries of the Cherokee

Nation. A mere 36 days later, also at Hopewell, the Choctaw Nation executed its

own treaty with the United States, one similar to that of the Cherokees. In these

treaties and a few others that soon followed, the Cherokees and Choctaws were

placed under the protection of the United States; their rights to the exclusive use

and occupancy of lands not cede were ‘‘solemnly’’ assured by the United States 1 and

assured of our right to pursue our own ways and govern ourselves under our own

system of laws.

Despite solemn guarantees of protection by the United States expressed in treaty,

waves land-hungry non–Indian settlers began invading the Cherokee Nation, occupying and ‘‘improving’’ lands owned by the Nation and used communally by its citizens for centuries. Less than 20 years after the signing of the Hopewell treaties,

the United States Government first conceived of a new Indian policy’the first of a

long series of Federal policies that would have devastating effects on Indian people

everywhere’that would eventually come to be known as ‘‘Indian removal,’’ whereby

it was determined that the best way to protect Indians from the consequences of

the invasions of white settlers would be to move them en masse to the remote country west of the Mississippi River that had just been acquired in the Louisiana Purchase. 2

In 1817 and 1820, respectively, the Cherokee Nation and the Choctaw Nation executed treaties with the United States agreeing to cede portions of their lands east

of the Mississippi River in exchange for large tracts of land in the Arkansas Territory. Although some Cherokees, who came to be known as ‘‘Old Settlers,’’ did move

soon thereafter to the Arkansas Territory, before the Government could follow

through with removal it discovered that it had miscalculated the rate of westward

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3See treaties of January 20, 1825, 7 Stat. 234, and May 6, 1828, 7 Stat. 311.

4 4 Stat. 411.

5 Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25 (1831); Worcester v. Georgia, 6 Pet. 515,

8 L.Ed. 483 (1832). 6 7 Stat. 333.

7 7 Stat. 478.

8 A small number managed to avoid removal and remain near their homelands. Their descendants are members of the Eastern Band of Cherokee Indians. 9See treaty of January 17, 1837, 11 Stat. 573, and treaty of June 22, 1855, 11 Stat. 611.

10See Article 5 of the Treaty of New Echota, 7 Stat. 478, 481. 11See treaty of August 6, 1846, 9 Stat. 871, declaring amnesty for crimes committed within

Cherokee Nation during the factional struggles and making special monetary provisions for the

Old Settlers. Article 1 of this treaty also affirms that the Cherokee Nation’s new lands in the

Indian Territory ‘‘shall be secured to the whole Cherokee people for their common use and benefit.’’ 12See treaties of March 21, 1866, 14 Stat. 755 (Seminole Nation), April 28, 1866, 14 Stat. 769

(Choctaw and Chickasaw Nations), June 14, 1866, 14 Stat. 785 (Creek Nation), and July

19,1866, 14 Stat. 799 (Cherokee Nation).

expansion, for the lands in Arkansas the U.S. had promised to the Indian Nations

had already been occupied by non–Indian settlers. The two Nations were then forced

to relinquish their lands in the Arkansas Territory and to accept instead lands farther west in the ‘‘Indian Territory.’’ This time, the United States assured them,

their lands would, ‘‘under the most solemn guarantee of the United States, be, and

remain, theirs forever.’’ 3

The failure of the Arkansas removal program did little to inspire confidence

among Cherokees and Choctaws that the Federal Government had the political will

to protect them from non–Indian settlement in the promised lands of the Indian

Territory. Those who had not already moved to the Arkansas Territory became more

determined than ever to remain in their aboriginal homelands in the east. At the

same time, however, pressure was building in the states of Georgia and Mississippi

for Congress to rid them of their Indians, and laws were passed in the state legislatures purporting to extend state jurisdiction into the Indian Country. Then, in 1830,

Congress passed the Indian Removal Act. 4

Although the Cherokees successfully challenged the validity of the state laws asserting jurisdiction over Cherokee territory in now famous court cases that are part

of foundation of modern Federal Indian law, 5 the Indian Nations received no support whatsoever from the Andrew Jackson administration as political pressure for

Indian removal continued to grow.

Eventually the Indian Nations decided that removal was inevitable, that they

should make the best deal they could with the United States while there was still

time to do so. The Choctaw Nation signed the Treaty of Dancing Rabbit Creek 6, another removal treaty, on September 27, 1830; in it they agreed to move to new lands

west of the Arkansas Territory. Similarly, on December 29, 1835, the Cherokees

ended their resistance to removal by executing the Treaty of New Echota 7, and

those Cherokees who had not moved earlier to the Arkansas Territory ‘‘agreed’’ to

move to lands in the Indian Territory ceded to them by the United States. 8 Later,

by treaty with the United States, the Chickasaw Nation was granted a 1/4 interest

in the lands of the Choctaws west of the Mississippi in the Indian Territory. 9

In their removal treaties, the Indian Nations were to be given their lands in the

Indian Territory by way of patents executed by the President of the United States

granting title to the property in fee simple. The Indians were assured that they

would be free to govern themselves and never again be moved, and that their domains would never be embraced within the limits of any state or territory. 10

The years following the Trail of Tears were a time of great turmoil in the Cherokee Nation, when internecine fighting among Cherokee factions erupted over the

actions of the so-called ‘‘Treaty Party,’’ who were alleged to have acted illegally in

ceding tribal land in the removal process. Some members of the Treaty Party, including Elias Boudinot, were executed for what they did. This turmoil, though it

happened long ago, reflects the strength of attachment of Cherokee people to their

tribal lands and explains their strong bias against relinquishing title to those lands

except when absolutely necessary.

Although peace was eventually restored in the Cherokee Nation in the mid–1840s,

in part through the efforts of the Government, 11 it was not a long-lasting peace. The

Civil War brought political and economic destruction and chaos to the Indian Territory. The membership of the Cherokee Nation, not unlike that of the other four Nations, was divided between the Union and the Confederacy, but for their unfortunate choices in taking sides in the War the Indian Nations were rewarded with yet

another generous round of punitive treaties. 12 Despite the many onerous provisions

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13See article 31 of the Cherokee’s 1866 treaty, 14 Stat.799, 806. 14See article 12 of the Cherokee’s 1866 treaty, 14 Stat. 799, 802. 15See the Act of March of March 3, 1893, 27 Stat. 645. 16 Act of June 28, 1898, 30 Stat. 495. 17 Act of April 26, 1906, 34 Stat. 148. 18For an excellent legal analysis of how the governments of the five Nations continued to survive after and despite the 1906 Act, see Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976), aff’d.

sub nom., Harjo v. Andrus, 581 F.2d 949 (D.C. App. 1978). 19See memorandum of Duard R. Barnes, Acting Associate Solicitor, Division of Indian Affairs,

Department of Interior, to Legislative Counsel dated August 12, 1976. 20 402 F.2d 739 (10th Cir. 1968). 21 Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970).

in these treaties, however, they did expressly reaffirm all not inconsistent obligations of prior treaties. 13

Other provisions in the 1866 treaties with the five Nations contemplated the creation of an Indian state from the Indian Territory, to be governed by an inter-tribal

council consisting of representatives of the Indian Nations 14. This idea would never

become a reality: once again, political pressure began building to do away with the

tribal governments in the Indian Territory. Congress eventually succumbed to this

pressure and, in 1893, created the Commission to the Five Civilized Tribes. 15 The

purpose of the Commission was to negotiate allotment agreements with the five Nations and thereby pave the way to the dissolution of the tribal governments. It is

important to note here that the reason allotment agreements were necessary was

that the United States did not hold title to the lands of the Cherokee, Choctaw,

Chickasaw, Creek and Seminole Nations’their tribal lands had been ceded to them

by patents of the United States’so that the U.S. was not in a position to convey title

to allotted lands. This legal fact would eventually play an important role in how the

Cherokees, Choctaws and Chickasaws came to own the bed of the Arkansas River.

The Indian Nations resisted allotment as long as possible. They continuously

rebuffed the Commission in its efforts to negotiate allotment. Then Congress passed

the Curtis Act of 1898 16, legislation that in effect put an ultimatum to the Indian

Nations—allot your lands by agreement or they will be allotted by force of law.

Within four years passage of the Curtis Act, all five Indian Nations had executed

allotment agreements, and their tribal lands were soon allotted in severalty.

In 1906, Congress passed a law 17 that was intended to begin the process of winding up the affairs and existence of the five Nations. Although the 1906 Act clearly

contemplated the eventual dissolution of the governments of the five Indian Nations, neither it nor any other act of Congress ever accomplished that end 18. Section

27 of the 1906 Act did, however, expressly provide that any tribal lands remaining

after allotment would be held thereafter in trust for the Indians another important

legal fact in the history of our Nations’ ownership of the bed of the Arkansas River.

At the time of allotment through statehood in 1907, the Department of Interior

assumed that the United States owned the bed and banks (to the highwater mark)

of the Arkansas River, with the consequence that the bed of the River was never

allotted. Until 1970, in fact the Department and the Federal Government persisted

in the belief and an erroneous legal opinion that title to the riverbed went to the

State of Oklahoma upon statehood under the ‘‘Equal Footing Doctrine,’’ whereby

title to the beds of a navigable stream is passed to the state whose borders encompass it upon admission of that state into the Union 19. The Cherokee, Choctaw and Chickasaw Nations disagreed with the Government’s position. Instead, these Nations contended that when the United States ceded lands

to them pursuant to their respective removal treaties and the Federal land patents

executed by the President, the United States granted all of its interest in the bed

and banks of the Arkansas River, along with the other lands described in those treaties and patents, to the three Indian Nations, so that at the time of Oklahoma statehood the U.S. was possessed of no title to transfer to Oklahoma under the Equal

Footing Doctrine. The Indian Nations followed this with an argument that by operation of section 27 of the 1906 Act, these unallotted riverbed lands went to the

United States in trust for the Indian Nations.

In 1966, the Cherokee Nation took these very arguments to the United States District Court for the Eastern District of Oklahoma in a lawsuit naming the state of

Oklahoma and various oil and gas companies with riverbed leases from the state.

Subsequently, the Choctaw and Chickasaw Nations intervened in the action. The Indian Nations lost at the trial court and again on appeal to the Tenth Circuit 20. The

Supreme Court accepted review of the case on certiorari and reversed 21. The Court

reviewed the three Nations’ various treaties with the United States, the land patents executed by the President, and the historical and legal context in which those

treaties and patents were made, and held that (1) when the United States ceded

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22 Case Nos. 218–89L and 630–89L. 23 United States of America v. Pates Farms, Inc., et al., Case No. Civ.97–685–B, United States

District Court for the Eastern District of Oklahoma.

lands to the three Indian Nations in the Indian Territory, it intended to cede the

bed and banks of even the navigable segment of the Arkansas River, from Three

Forks near present day Muskogee down to the Arkansas territorial line, and (2), by

operation of the 1906 Act, the bed and banks of the River went to the United States

in trust for the Indian Nations.

Because of its adherence to the erroneous legal opinion referred to above, the Department of Interior did nothing between the time of statehood and 1970 to protect

the three Indian Nations’ interests in riverbed resources. When Congress authorized

the construction of the McClellan–Kerr Navigation System along the Arkansas

River after the Second World War, no provision was made for compensating the

three Nations for the use of their resources in constructing the dams, revetments

and levies within the system. Nor did the Department take steps to prevent depletion of the Nations’ oil and gas reserves under the river, or to prevent landowners

from occupying thousands of acres of the riverbed that became dry or ‘‘fast’’ as the

result of natural or man-made changes in the course of the River. Today, in the

lower reaches of the Arkansas River near the Oklahoma–Arkansas state line, there

are approximately 7,750 ‘‘dry’’ acres of riverbed lands that belong to the Nations but

are occupied and used by adjacent landowners without consent of, or compensation

to, the three Nations.

In 1989, the three Nations filed suit against the United States in the United

States Court of Federal Claims, 22 after receiving special permission from the Congress to do so, seeking compensation from the Government for the taking of tribal

resources along the riverbed and for it breach of trust to protect the Nations’ beneficial interests in the riverbed. Those lawsuits are still pending today. In 1997, the

United States brought a quiet title action against many dozens of landowners occupying tribal lands along a small segment of the River 23’representing only a small

percentage of the total number of persons who might be occupying or claiming an

interest in the Nations’ riverbed lands but the lawsuit was dismissed without prejudice on technical grounds. Thus, the task of removing persons occupying tribal lands

along the Arkansas has not even begun.

Mr. Chairman and members of the Committee, this legislation is the culmination

of many years of work by a succession of tribal administrations to resolve the complex controversies surrounding the Nations’ ownership of the bed and banks of the

Arkansas River in Oklahoma. Our earliest efforts to reach a settlement for lost riverbed resources began in the late 1970s. My predecessors in office, Principal Chiefs

Ross Swimmer and Wilma Mankiller, worked diligently with the tribal leaders of

Choctaw and Chickasaw Nations to bring closure to these controversies, not only

through litigation but also through negotiation with Interior and Justice, but always, for one reason or another, settlement has proven to be an elusive thing.

The current bill, H.R. 3534, would settle the three Nations’ damage claims

against the United States now pending in the Court or Federal Claims, and it would

give them, in a single lump sum, the past and future fair rental value of the lands

being used for the two powerheads that were constructed on tribal lands on the bed

of the Arkansas. The bill would also compensate the Nations for the lands being occupied by adjacent landowners and other potential claimants in the lower segments

of the River. In exchange for the appropriated sums, the three Nations would dismiss their lawsuits against the Government and disclaim any right, title or interest

in the 7,750 of lands being occupied by non-tribal interests. Those disclaimers will

serve to eliminate the cloud of tribal claims in the title to lands being occupied by

these people and relieve the Government of the very expensive burden of having to

bring ejectment litigation against a very large number of Oklahoma citizens.

Mr. Chairman and members of the Committee, this is a good bill and I urge that

you give it your unqualified support. I also thank you for taking the time in the

Committee’s busy schedule to set this matter for hearing and for providing me the

opportunity to testify on behalf of a bill that will be of great benefit not only to the

people who are my constituents, the Cherokee people, but to many non–Indian citizens of Oklahoma as well.

Mr. HAYWORTH. And we thank you very much, Chief, and the

Chair would note that we are joined by two Oklahomans here on

the dais. Our friend Mr. Carson is the principal sponsor. We will

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hear from him first, and then recognize our good friend and special

guest. Wes Watkins. Mr. Carson?

STATEMENT OF THE HON. BRAD CARSON, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF OKLAHOMA

Mr. CARSON. Thank you, Mr. Hayworth, and I would like to

thank Chairman Hansen and Ranking Member Rahall for scheduling this hearing today, and thank you, Governor Anoatubby,

Chief Smith, and Chief Pyle, for your patience in sitting through

the other hearings as well. You know this is a laborious, sometimes

tedious process. I know you have been through it before, and we

are grateful to have you here today.

All three of you have ably outlined the history of this particular

dispute, but let me just for the record say a bit more about that

and why a settlement of this issue is so needed today. Disputes involving the Cherokee, Choctaw, and Chickasaw lands along the riverbed, as has been pointed out, have been ongoing since 1907, the

year of statehood in Oklahoma, and in order to achieve justice and

compensate these three tribes for the land and resources that have

been wrongfully taken from them, misused and left dormant, a settlement today must occur. Everyone agrees on that, both the administration as well as tribal leaders and most of us here in Congress.

As Chief Smith was also outlining, and also abetted by Chief

Pyle’s testimony and Governor Anoatubby’s testimony, the tribes of

course were relocated to Oklahoma in the 1830’s.

They were to occupy land ceded to them in the new Indian Territory on which the Arkansas River now runs.

But in 1970, as Chief Smith pointed out, an erroneous legal opinion by the U.S. Government, because of that the Arkansas River

bed was conveyed to the new State of Oklahoma. All navigable rivers of the United States were deemed property of the State under

the Equal Footing Doctrine.

However, the treaties of the three tribes came long before the

Equal Footing Doctrine, and in 1970 in the landmark Supreme

Court case of Choctaw Nation v. Oklahoma, the U.S. Supreme

Court ruled in favor of the tribes and determined that the tribes

indeed were the rightful owners of the riverbed, and not the State

of Oklahoma.

Despite the tribes’ ownership of those lands, between 1907 and

1970 the BIA acted on the assumption that Oklahoma owned the

riverbed, and therefore took no action to protect tribal resources

such as oil and gas production, sand and gravel, grazing, and croplands.

Since the Supreme Court decision of now 32 years ago, there has

been little disagreement that a settlement should be reached.

However, there have existed substantial differences in thought regarding the settlement amount that should be awarded to the

tribes.

In 1974 Congress appropriated $1.2 million to the BIA to conduct

an appraisal of the entire riverbed, and to survey the riverbed from

the Arkansas line to the Three Forks area north of Muskogee,

Oklahoma. The value of the riverbed and related assets were determined to be $177 million. Senator Henry Bellman, the Senator

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from Oklahoma at that time, introduced legislation to authorize the

United States to pay the tribes for the value of the riverbed. However, this legislation was not passed, and now, 30 years later, the

tribes still await settlement of this issue.

Enactment of this legislation will bring about clear and tangible

benefits. First, it will eliminate the need for the Department of

Justice to bring hundreds of defendants into court due to their occupancy of parts of the nearly 8,000 acres of dry bed lands that the

chiefs and Governor Anoatubby were talking about. Second, the

settlement will pay the three tribes for the actual present value of

the loss of past and future assets they would have had if not for

the construction of the McClellan-Kerr navigation system.

Third, positive movement of the legislation will result in the dismissal of the mismanagement case against the BIA. And, finally,

the settlement will provide the tribes with resources that will in

turn be used to further economic development in the region,

benefitting Indian and non-Indian members of the communities

alike.

I hope that everyone on this Committee can support the legislation. I would like to thank Chairman Hansen and Ranking Member

Rahall and you, Mr. Hayworth, for your past support. And if I

could ask the panelists here to discuss something that Mr. Smith

from the BIA testified to, you hear earlier this morning, let me talk

to you about the ongoing status of the settlement negotiations. Can

you tell us how those are coming along, what the hurdles are going

to be, and the potential resolution of the sand and gravel matter

that he was saying still remains a roadblock?

Statement of The Honorable Brad Carson, a Representative in Congress

from the State of Oklahoma, on H.R. 3534

Chairman Hansen and Ranking Member Rahall, I would first like to express my

sincere appreciation to you both for scheduling this hearing on H.R. 3534, the Cherokee, Choctaw, and Chickasaw Nations Claims Settlement Act, and for inviting the

leaders of the three Indian nations here today to testify. They certainly understand

this issue better than anyone and can speak most eloquently about the need for this

legislation. I would also like to take this opportunity to thank Congressman Wes

Watkins, Steve Largent, and Dale Kildee for their strong support and co-sponsorship of this legislation.

Disputes involving the Cherokee, Choctaw and Chickasaw lands along the Arkansas River have been ongoing since 1907. In order to achieve justice and compensate

these three tribes for the lands and resources that have been wrongfully taken from

them, misused, and left dormant, a settlement must occur.

In order to understand the need for this legislation, I believe you must first turn

to the history of these tribal lands. As you well know, in the 1830s, the Cherokee,

Choctaw, Chickasaw, Creek and Seminole Nations were forcibly removed to the Indian Territory of Oklahoma to occupy lands ceded to them by the United States,

through which the Arkansas River runs. In 1907, due to an erroneous legal opinion,

the Arkansas riverbed was conveyed to the new State of Oklahoma. All navigable

rivers of the United States were deemed property of the State under the Equal Footing Doctrine. However, the treaties of the three tribes came long before the Equal

Footing Doctrine. And, in 1970, in Choctaw Nation vs. Oklahoma, the U.S. Supreme

Court ruled in favor of the tribes and determined that the tribes, indeed, were the

rightful owners of the riverbed and not the state of Oklahoma.

Nevertheless, from 1907 through 1970, the Bureau of Indian Affairs acted on the

assumption that Oklahoma owned the riverbed and, therefore, took no action to protect tribal resources such as oil and gas production, sand and gravel, grazing and

croplands. The Government itself constructed hydroelectric powerheads and other

improvements in the channel of the river on tribal lands, using sand and gravel belonging to the three Indian Nations. Due to the Bureau’s inaction, individuals with

property near the Arkansas River also began to occupy the three Indian Nations’

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‘‘dry-bed’’ lands—amounting to approximately 7,750 acres of land that was under

water at the time of statehood but that is now dry due to changes in the course

of the river.

Since the Supreme Court decision of 1970, there has been little disagreement that

a settlement should be reached. However, there have existed substantial differences

in thought regarding the settlement amount that should be awarded the tribes. In

1974, Congress appropriated $1.2 million to the BIA to conduct an appraisal of the

entire riverbed and to survey the riverbed from the Arkansas line to the three forks

area north of Muskogee. The value of the riverbed and related assets was determined to be $177 million. Senator Henry Bellmon, at that time, introduced legislation to authorize the United States to pay the tribes for the value of the riverbed.

However, this legislation was not passed, and, almost thirty years later, the tribes

are still awaiting settlement of this issue.

Recent discussions between Federal, state and tribal entities involved in this dispute have been extremely productive making the 107th Congress a most appropriate

time for settlement.

Enactment of this legislation, H.R. 3534, will bring about clear, tangible benefits.

First, it will eliminate the need for the Department of Justice to bring hundreds of

defendants into court due to their occupancy of parts of the 7,750 acres of drybed

lands. Second, the settlement will pay the three tribes for the actual present value

of the loss of past and future assets they would have had if not for the construction

of the McClelland–Kerr navigation system. Third, positive movement of the legislation will result in the dismissal of the mismanagement case against the Bureau of

Indian Affairs. And, finally, the settlement will provide the tribes with resources

that will, in turn, be used to further economic development in the region, benefitting

Indian and non–Indian members of these communities alike.

I ask my colleagues on the Committee to support this important legislation.

Thank you Mr. Chairman.

Mr. SMITH. We have looked at different assets under actually the

disputed lands. The value of the land has been agreed to. The

value of the oil and gas has been agreed to. The value of methane

gas has been agreed to. The last thing that we haven’t come to an

agreement on, and we are making great progress, is the value of

sand and gravel.

I can tell the Committee that in 1989 we came—our strategy

then was to piecemeal the damages out, and in 1989 we had an

agreement with the Bureau of Indian Affairs for the Cherokee portion, which we don’t have, to agree for compensation of $8.5 million

for our portion of the sand and gravel. I believe that gives us a

benchmark. I think we can get to a settlement in the near future,

especially with the encouragement of Congress and this

Committee.

Mr. CARSON. You also in your testimony referenced the fact that

there are numerous lawsuits involving title to some of the dry bed

lands. Is there any estimate from the tribes about the expense and

duration of litigation if settlement is not reached through Congress

or working with the administration?

Mr. SMITH. In 1989 the Department of Justice anticipated it

would be the year 2009 before they could bring all the quiet title

suits. In the first filing, which was dismissed based on technicalities, there were over 100 named defendants in one particular tract.

We anticipate 300 to 400 named defendants and probably as many

as 7,000 interests, individual interests in these lands, including

mortgage companies, insurance companies, oil and gas companies,

the farmers themselves. We have had widespread support all up

and down the Arkansas River by these other parties wanting to

settle this issue.

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Mr. CARSON. I see my time has expired. Mr. Chairman, I would

ask for leave to enter my full statement into the record.

Mr. HAYWORTH. I am certainly happy to allow that to take place,

Mr. Carson. The Chair would only take exception to your comment

that somehow this hearing was tedious today, but that is OK.

Perhaps you will find support from our other special guest, Mr.

Watkins of Oklahoma. Welcome, and you are recognized.

STATEMENT OF THE HON. WES WATKINS, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF OKLAHOMA

Mr. WATKINS. Thank you, Mr. Chairman, and I appreciate Mr.

Rahall’s being here. And Dale, it is always good having you here.

I know you have always been quite popular in the Durant area,

Chief Pyle.

This is I think a landmark piece of legislation, no pun intended

by ‘‘landmark’’ because it is riverbed legislation, but it has been a

long time. Speaking of tedious, it has been a lot longer. It is not

very long sitting out here, right, because over these many years

there has been a long delay.

And let me say this to the Committee. This has been of interest

to me along with a lot of other activities because I think, as a cosponsor, let me say this is also a bipartisan piece of legislation, my

colleague from Oklahoma being a Democrat and part of the minority side in the Congress at this time. I have joined him. We have

joined together, my being a Republican on the majority side, in

helping to show the kind of support that we want and hopefully

can gain from this Committee in moving forward.

I would like to say to Mr. Chairman, when I left the Ways and

Means Committee and he sits, Chairman Hayworth sits right next

to me on Ways and Means Committee and we discuss a lot of Native American activities and legislation, they were still going strong

when I left there. I don’t know if they are still are. I am going to

go back.

But H.R. 3534 is, like I say, a long time in coming, and it will

settle I think a situation that needs to have been done a long time

ago. You have heard the history of it, but Mr. Chairman, really the

BIA recognized or reported, they reported for about 60 years that

this belonged to Oklahoma, the State of Oklahoma. But a lawsuit

in 1970, the U.S. Supreme Court stated this river bed and all belonged to the Choctaws and the Chickasaws and the Cherokees.

That was brought about from a lawsuit in 1966, if I recall correctly.

And so it has been over 30 years since the Supreme Court has

ruled, and they have made a lot of effort, spent a lot of time over

these years. In 1989 there was further activity, a filing of lawsuits,

and hopefully this legislation will prevent an expansion of this. I

think Chief Smith hit on the head. When you look at it from a

practical standpoint and a reasonable standpoint, working out a

settlement is much better than could involve as many as up to

7,000 interests that are involved in the potential of the lawsuits,

including hundreds of landowners along that river.

So I don’t think it is—I think all of us who watched these settlements over the years realize that that would be a whole lot more.

This is 7,500 acres of land. It looks like to me we all know the

hydro power situation there, the water value that continues to flow

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there, and that is going to continue throughout our lifetime and

throughout many hundreds of years. And this is basically, without

question, settled, the ownership of that has been settled. We just

got to get now settling the value and settling the compensation for

this.

So I appreciate you, Mr. Chairman, and I appreciate my colleague from Oklahoma, Mr. Carson, and his leadership on this

Committee and all of your interests in this legislation, and I ask

that for a positive vote, Neil, if I could, later on when markup

takes place and we move this legislation forward, and I can assure

you will be trying to do what I can from the majority side to move

this legislation.

Thank you, Mr. Chairman.

Statement of The Honorable Wes Watkins, a Representative in Congress

from the State of Oklahoma, on H.R. 3534

Mr. Chairman, Mr. Rahall, and Members of the Committee, I thank you for conducting this hearing today and join as a co-sponsor on the Legislation offered by Mr.

Carson of Oklahoma. Today you will hear about a bill that would have a significant

impact on the members of the Cherokee, Choctaw, and Chickasaw Indian tribes of

Oklahoma. The Cherokee, Choctaw and Chickasaw Nations Claims Settlement Act

is a piece of legislation I fully support, and hope will be passed by the House of Representatives this year. H.R. 3534 would bring closure to both current and forthcoming lawsuits between the United States, and the Chickasaw, Choctaw, Cherokee

tribes, and hundreds of individuals in Oklahoma.

The Bureau of Indian Affairs for more than 60 years, reported that the State of

Oklahoma owned the Arkansas Riverbed. However, in 1970 the Supreme Court of

the United States ruled in Choctaw Nation v. Oklahoma that the tribes mentioned

above owned the Arkansas Riverbed. After many attempts to settle with the Government in1989, the Cherokee, Chickasaw, and Choctaw Nations filed lawsuits

against the United States seeking damages for the use and mismanagement of these

tribal trust resources. These lawsuits are still pending in Federal court, and without

this legislation future lawsuits will be filed.

The Arkansas Riverbed encompasses over 7,500 acres of the Indian Nations’ Drybed Lands have been occupied by a large number of adjacent landowners in

Oklahoma. Without a settlement, further litigation against thousands of landowners

would be likely. The potential of these lawsuits and the time and increased expense

to not only the government and tribes, but also to private citizens is in my opinion

a valid and strong reason to settle the Arkansas Riverbed. It is in the best interest

of not only the tribes, but also the United States to pass this legislation.

This legislation would bring a quick settlement to a claim the tribes have had

against the United States for over 30 years. It would end pending lawsuits between

the tribes and the United States. Most of all settling with the tribes would avoid

thousands of future lawsuits brought by the United States against individuals who

currently own the Drybed lands.

Mr. HAYWORTH. Thank you very much.

The Gentleman from Michigan, any questions?

Mr. KILDEE. Thank you, Mr. Chairman. I am very happy to be

one of the cosponsors of this bill, glad to see my three friends here.

I would try to speak, if I could, in Choctaw and Chickasaw, but I

have a Potawatomi accent in that, but I will say in Cherokee, ‘‘Osee-o,’’ and I am glad that you are here, Chairman Smith, and also

‘‘Owado,’’ thank you very much for being here. Kim Chee behind

me, she teaches me my Cherokee, so I probably have a Flint,

Michigan accent in that, also.

But I think you have been very, very patient in this action, more

than patient, and you are certainly being more than reasonable in

the figure, and I think that we should act very expeditiously on

this to make sure that you are given some compensation so you can

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take care of the needs of your tribe. Justice is extremely important,

and I think justice delayed is justice denied. It has been delayed

for a long, long time. That is why I would hope that we would very,

very good have a markup.

And it is very good when we—I think Indian issues have risen

above partisanship. When J.D. Hayworth and I established the Native American Caucus, we decided at that point to make it a bipartisan caucus because these things are of a bipartisan nature, and

J.D. and I have worked very closely together. Wes and I came to

Congress together, we won’t say how many years ago, but we arrived in Congress together. And Brad Carson has been, of course,

a citizen of the Cherokee Nation and certainly added a great deal

to this Committee and to the Congress.

So I just thank you for your testimony. I don’t really have any

questions. I think you have a very, very strong case here and I will

do everything I can to support it.

Thank you, Mr. Chairman.

Statement of The Honorable Dale E. Kildee, a Representative in Congress

from the State of Michigan, on H.R. 3534

Mr. Chairman, I am in strong support of H.R. 3534, a bill that would settle certain claims of the Cherokee, Choctaw, and Chickasaw Nations to the Arkansas riverbed in Oklahoma. I want to thank Congressman Carson for his leadership in trying to resolve this legal dispute, which has been without resolution for more than

three decades. I am proud to be an original cosponsor of this legislation.

Since the Supreme Court first ruled in 1970 that the three tribes retain title to

the Arkansas riverbed, the tribes have been seeking damages in Federal court for

the mismanagement and uncompensated use of the Arkansas riverbed lands and resources.

I want to commend the three tribal nations, the Cherokee, Choctaw, and Chickasaw Nations for working together to reach an agreement among their respective nations about settlement terms. I know firsthand by working with the Michigan tribes

on the Michigan Indian Claims Settlement Act how difficult it can be to get sovereign nations to come together and agree to settlement terms.

This bill would:

1. Extinguish the claims of the three tribes against the United States related to

the Arkansas riverbed;

2. Puts an end to the threat of trespassing suits by the Department of Justice

against hundreds of private landowners that occupy the drybed land;

3. Authorizes an appropriation of nearly $50 million for full settlement of claims

against the U.S.; AND

4. Reserves the tribes’ interest in the riverbed except for the disclaimed drybed

lands.

Mr. Chairman, it is my hope that we will honor the agreement of these sovereign

nations and urge the Department of Interior and the Department of Justice to finalize negotiations soon so that we can finally put an end to this legal dispute by passing a settlement bill.

I look forward to hearing the testimony today. Thank you

Mr. HAYWORTH. Thank you, Mr. Kildee.

The Gentleman from Hawaii?

Mr. ABERCROMBIE. Thanks very much, Mr. Chairman.

Gentlemen, I want to make sure that I understand. I want to be

supportive of this legislation. I want to make sure I have it down

right, because I heard a couple of different figures.

Is the intention of the legislation, in your understanding, to provide a continuing income, or is this a final settlement and some

kind of—in other words, continuing income if there is money being

made or income being derived from the selling of hydroelectric

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power and so on. Does that provide a continuing income to the

tribes?

Mr. PYLE. If I may, no, it is a one-time settlement.

Mr. ABERCROMBIE. OK, and land disputes is the same thing?

Mr. PYLE. Although we could change on that electric if you would

like us to.

Mr. ABERCROMBIE. No, no. I am just interested. So title then goes

to the State. Is that right? Or it is no longer in dispute?

Mr. SMITH. The disputed lands, the 7,700 acres, title would vest

with the present land occupants, individual land occupants.

Mr. ABERCROMBIE. Yes, I understand that, but I am talking

about the riverbed now.

Mr. SMITH. No, the Cherokee and the Chickasaw and the Choctaw Nations retain title to the wet bed, to the wet bed.

Mr. ABERCROMBIE. But not the energy that is derived from the

water that is flowing over it?

Mr. SMITH. That is correct. Congress has decided that with their

navigational easement they are entitled to put that dam there, and

it will stay there without compensation.

Mr. ABERCROMBIE. The reason I am asking is not to try to recreate a dispute or to urge any kind of renegotiation, but rather that

in reading over this, I mean, this has been years and years and

years this has been going on. I just want to make sure that if we

pass thing, we don’t end up missing something in the process, that

then becomes a further grounds for dispute.

You said the sand and the gravel hadn’t been quite resolved.

Does this take care of that, or is that going to continue to hold this

up, if we do pass it, from being implemented?

Mr. SMITH. We anticipate a settlement on the sand and gravel.

Mr. ABERCROMBIE. Well, would this appropriation—it is $49 million, right, approximately?

Mr. SMITH. Yes

Mr. ABERCROMBIE. Would that handle that?

Mr. SMITH. It would.

Mr. ABERCROMBIE. And so you are anticipating, this $49 million

anticipates a settlement that would be within the range of what

your negotiations are now?

Mr. SMITH. Yes.

Mr. ABERCROMBIE. And the last thing is, will that cover all your

attorneys fees?

Mr. SMITH. Yes.

Mr. ABERCROMBIE. Because this has gone on for 30 years or

whatever it is. Is that intended to cover—does that cover the fees

for this particular negotiation, or are you on the hook for whatever

you have done in the past, or has that already been paid?

Mr. SMITH. We are on the hook, and this settlement will take

care of it.

Mr. ABERCROMBIE. The only suggestion I would make in this, Mr.

Chairman, is that—and I would be supportive. You know, I don’t

want to mess with your figures or try and change anything around.

This would have to be something we would have to decide, but I

would just like to be absolutely clear as to what is required of the

tribes in terms of taking care of attorneys fees, so that everything

is cleared, that all decks are cleared, and that perhaps we might

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think about adding more money to this rather than less to pay for

those fees, so that the $49 million all goes to the tribes.

Mr. CARSON. If you would yield, Mr. Abercrombie— Mr. ABERCROMBIE. Sure, I will.

Mr. CARSON. —we will certainly accommodate you on that, and

I will talk to you personally and get your staff information, and we

will try to make sure you are satisfied with what the bill says

about attorneys fees and that it addresses all your concerns.

Mr. ABERCROMBIE. Yes. I would add them in. I mean, it is easy

for me to say, but— Mr. WATKINS. If I might mention to the Gentleman, too, I think

Mr. Carson is correct. That is one thing. Surely all this is going to

take care of that, and that is one big thing we are trying to—we

don’t want to continue a lot of lawsuits or allow them to continue

on all these other interests. That is the one thing for settling this

thing.

If we can settle this, we will get out of all these maybe thousands

of lawsuits it could be— Mr. ABERCROMBIE. Oh, no, I agree absolutely. It is just in Section

5 here it says ‘‘At the time the funds are paid to the Indian nations, the funds derived to be appropriated, the Secretary shall pay

the Indian nations’ attorneys those fees provided for in the individual tribal attorney fee contracts as approved by the respective

Indian nations.’’ I read that to say that the Secretary—that we could have the

Secretary pay it out of funds that we establish to pay it. It doesn’t

say, as I read this, that it has to come out of the Indian nations’ end of this settlement figure. That is all. Do you see what I am

driving at?

Mr. WATKINS. I think there is an allowable percent in the bill for

attorney fees.

Mr. ABERCROMBIE. Ten percent, I think.

Mr. WATKINS. That is pretty hefty.

Mr. ABERCROMBIE. That is what I meant.

Mr. WATKINS. That is a lot.

Mr. ABERCROMBIE. It takes a lot, so that— Mr. WATKINS. That is going to be negotiated with the tribal leaders and their attorneys.

Mr. ABERCROMBIE. Well, I wouldn’t mind making this, if it is 10 percent, that means about $5 million, right?

Mr. CARSON. $41 million total in the settlement, so about $4.1

million.

Mr. ABERCROMBIE. OK, $4.1 million. Well, why don’t we just add

$4.1 million to this settlement and let them pay the fees out of it?

You know, I am serious about it.

Mr. CARSON. I am sure we could find a lot of agreement from our

panelists to do that. I think it is anticipated that the $41 million

encompasses the $4.1, or $4 or $5 million in attorneys fees, already.

Mr. ABERCROMBIE. Oh, OK, that is included.

Mr. CARSON. But we will work with you on that, and perhaps the

panelists can—

Mr. ABERCROMBIE. But this is years and years, decades. It is not

fair to cut the compensation any more than it has to be. Or did you

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take, does the $41 million take into account the fees, so that the

settlement is what you thought it should be?

Mr. SMITH. The $41 million actually is the value of our compensation, so we are taking out of the compensation our attorney

fees, so we really—

Mr. ABERCROMBIE. I will conclude with this, Mr. Chairman. I am

just saying to you that it is not their fault, and I don’t see why the

hell that the attorneys fees—in a lot of court cases, when you lose

a case, and this is not losing exactly but it should be—you know,

the judge can order you to pay the attorneys fees for the winning

side. And the fact that this settlement in effect recognizes, that is

what I am trying to say, that the claims of the tribes were legitimate, it seems to me the United States should pay those attorneys

fees. That is my only point.

Mr. HAYWORTH. I thank the Gentleman—

Mr. ABERCROMBIE. I appreciate it. I don’t want to screw up the

legislation or hold it up, but I am just telling you I believe that it

is not the tribes’ responsibility to pay these attorneys fees, because

in effect this settlement is admitting that the United States owed

this money, and therefore the attorneys fees should be paid by the

United States. That is all.

Mr. HAYWORTH. I thank the Gentleman from Hawaii for his point

of view, and recognize the Gentleman from Oklahoma.

Mr. WATKINS. I would like to close. You know, Mr. Carson here

has Cherokee ancestry and all that, and he is going to make sure,

I think, things are fair. I grew up with the Choctaws down in the

southern part of Oklahoma, and many of them I have worked with

all my life, and lived with them literally, and Governor Anoatubby

and I shared a home town together in the Chickasaw Nation for

over 20-some-odd years, and I think they know that we have tried

to work to have a fair settlement and one that—the main thing

right now I think is, if they can get that, they can pay attorneys

and get that over with, and they can have economic growth and development moving in a way that can be very positive for those

tribes, for those members of those tribes.

Mr. HAYWORTH. Thank you, Mr. Watkins.

Mr. Carson, any closing comments?

Mr. CARSON. I would just ask that the record be kept open for

2 weeks on all three bills to supplement the record. And I was remiss in not thanking Mr. Watkins in my comments for his leadership and activity on this matter.

Mr. HAYWORTH. The Gentleman from Michigan?

Mr. KILDEE. Mr. Chairman, I have a statement for the record

also.

Mr. HAYWORTH. Without objection, all statements will be there in

their entirety, as will the statements of our witnesses. Again, gentlemen, we thank you very much, as we thank all the different panelists on the three different pieces of legislation that we considered

today in this hearing, and this hearing stands adjourned.

[Whereupon, at 1 p.m., the Committee was adjourned.]

[A statement submitted for the record by Mr. Pallone follows:]

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Statement of The Honorable Frank Pallone, Jr., a Representative in

Congress from the State of New Jersey, on H.R. 3476

I commend you, Mr. Chairman, for holding this hearing on American Indian and

Alaska Native (AI/AN) legislation. Such hearing opportunities serve as valuable forums to further research and understand the social, economic, legal and political

complexity of AI/AN realities, before related legislation is brought to the House of

Representatives for voting purposes. As Congressional history demonstrates, the decisions we make as Representatives can either positively or negatively impact these

people, and their nations (i.e., tribes, bands, villages and communities).

For example, between 1887 and 1934, the U.S. Government took over 90 million

acres of land from American Indians without compensation. More recently, between

1945 and 1968, Congress decided that Federal recognition and assistance to more

than 100 tribes should be terminated. This termination policy created economic disaster for many American Indians, and their nations, resulting in millions of acres

of valuable natural resource land being lost through tax forfeiture sales. This is a

primary reason why AI/AN families have the highest poverty level of any group in

the country, at a rate of 31% on some Indian reservations.

By holding hearings on the impact of legislation related to American Indians and

Alaska Natives, Congress moved to rectify its prior decisions by passing self-determination and self-governance policies. As a result of such polices, AI/AN nations and

villages have greater control over their lands and resources, and have made great

strides toward reversing the economic blight that resulted from previous Federal

policies, and have revived their unique cultures and nations. Congress must withstand pressure from those individuals and groups that call for back tracking to old

AI/AN policies, such as termination and reduction of AI/AN sovereign rights. We

must acknowledge and learn from our mistakes, and not repeat them in the future

because AI/AN nations and villages are relying upon our commitments.

As is becoming more widely known, the United States Constitution recognizes

that American Indian Nations are sovereign governments. Hundreds of treaties, the

Supreme Court, the President and the Congress have repeatedly affirmed that Indian Nations retain their inherent powers of self-government. In addition, the

United States Government is committed to a trustee relationship with the Indian

Nations. This trust relationship requires the Federal Government to exercise the

highest degree of care with tribal and Indian lands and resources.

I have thoroughly reviewed H.R. 3476, a bill to protect 697-acres of land, known

as The Great Oak Ranch, held in fee by the Pechanga Band of Luiseno Mission Indians from condemnation until a final decision is made by the Secretary of the

Interior regarding a pending fee to trust application for that land. I have also listened to those views that are in opposition to the passage of this legislation. I believe that there exists some misunderstanding between these two opposing sides. I

am here today to clear the record.

This property is part of the ancestral homelands of the Pechanga and contains

many historical, cultural and archaeological resources and sites that are significant

to the Band. In addition, it is home to the largest known naturally growing California live oak tree, estimated to be more than 800 years old. And despite statements made to the contrary, there are no plans for an Indian casino to be built on

this land.

H.R. 3476 simply maintains the status quo until the Federal process for taking

land into trust has run its course and the application is evaluated on its merits.

Furthermore, it prevents a change in the status of the land until Interior makes

a FINAL determination on taking the land into trust. There is no guarantee Interior

will take this land into trust; however, I do believe that this process should be allowed to run its course unabated. This legislation does not take a position on the

land to trust application, infringe on states’ rights, nor prevent opposing groups

from appealing Interior’s decision. It does, however, allow adequate time for the Department of Interior to make a final determination on taking this land into trust.

Therefore, I support passage of H.R. 3476 and would urge my colleagues to do

the same.

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