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H.R. 623, H.R. 740, H.R. 841, 

H.R. 931, H.R. 1306, AND H.R. 1410

LEGISLATIVE HEARING

BEFORE THE

SUBCOMMITTEE ON INDIAN AND 

ALASKA NATIVE AFFAIRS

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS

FIRST SESSION

Thursday, May 16, 2013

Serial No. 113–17

Printed for the use of the Committee on Natural Resources

(

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

or 

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

(II)

COMMITTEE ON NATURAL RESOURCES

DOC HASTINGS, WA, Chairman 

EDWARD J. MARKEY, MA, Ranking Democratic Member

Don Young, AK 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Mark E. Amodei, NV 

Markwayne Mullin, OK 

Chris Stewart, UT 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Vacancy 

Peter A. DeFazio, OR 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Tony Ca ́ rdenas, CA 

Steven A. Horsford, NV 

Jared Huffman, CA 

Raul Ruiz, CA 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Matt Cartwright, PA

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Jeffrey Duncan, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS 

DON YOUNG, AK, Chairman 

COLLEEN W. HANABUSA, HI, Ranking Democratic Member

Dan Benishek, MI 

Paul A. Gosar, AZ 

Markwayne Mullin, OK 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Doc Hastings, WA, ex officio 

Tony Ca ́ rdenas, CA 

Raul Ruiz, CA 

Eni F. H. Faleomavaega, AS 

Rau ́l M. Grijalva, AZ 

Edward J. Markey, MA, ex officio

(III)

CONTENTS 

Page

Hearing held on Thursday, May 16, 2013 ............................................................. 1

Statement of Members: 

Hanabusa, Hon. Colleen W., a Representative in Congress from the State 

of Hawaii ....................................................................................................... 3

Prepared statement of ............................................................................... 5

Young, Hon. Don, a Representative in Congress from the State of

Alaska ............................................................................................................ 2

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

Statement of Witnesses: 

Araujo, Jaeleen Kookesh, General Counsel for Sealaska Corporation ......... 38

Black, Michael S., Director, Bureau of Indian Affairs, U.S. Department 

of the Interior ................................................................................................ 6

Prepared statement on H.R. 841, H.R. 931, and H.R. 1410 .................. 8

Enos, Diane, President, Salt River Pima-Maricopa Indian Community ...... 71

Prepared statement on H.R. 1410 ............................................................ 72

Leno, Reyn, Tribal Council Chair, The Confederated Tribes of Grand 

Ronde ............................................................................................................. 27

Prepared statement on H.R. 841 and H.R. 931 ...................................... 28

Mallott, Byron, Member, Board of Directors, Sealaska Corporation ........... 38

Prepared statement on H.R. 740 and H.R. 1306 .................................... 40

McSwain, Robert, Deputy Director for Management Operations, Indian 

Health Services, Department of Health and Human Services .................. 10

Prepared statement on H.R. 623 .............................................................. 11

Norris, Hon. Ned, Jr., Chairman, the Tohono O’odham Nation of

Arizona ........................................................................................................... 61

Prepared statement on H.R. 1410 ............................................................ 63

Questions submitted for the record ......................................................... 69

Pen ̃ a, Jim, Associate Deputy Chief, National Forest System, U.S. Forest 

Service, Department of Agriculture ............................................................. 13

Prepared statement on H.R. 740 and H.R. 1306 .................................... 14

Pigsley, Delores, Chairman, Confederated Tribes of Siletz Indians of 

Oregon ............................................................................................................ 31

Prepared statement on H.R. 931 .............................................................. 32

Rosenbruch, Jimmie Cannon, Edna Bay Community, Inc. and Territorial 

Sportsmen, Inc. ............................................................................................. 54

Prepared statement on H.R. 740 .............................................................. 56

Teuber, Andy, Chairman and President, Alaska Native Tribal Health 

Consortium .................................................................................................... 22

Prepared statement on H.R. 623 .............................................................. 24

Wiseman, Maria, Associate Deputy Director, Office of Indian Gaming, 

Bureau of Indian Affairs, U.S. Department of the Interior ....................... 6

Additional materials submitted for the record: 

Franks, Hon. Trent, a Representative in Congress from the State of 

Arizona, Prepared statement of ................................................................... 95

Gosar, Hon. Paul A., a Representative in Congress From the State of 

Arizona, Prepared Statement of .................................................................. 94

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

official files .................................................................................................... 96

Markey, Hon. Edward J., Ranking Member, Committee on Natural Resources, Prepared statement of .................................................................... 94

(1)

H.R. 623, TO PROVIDE FOR THE CONVEYANCE OF 

CERTAIN PROPERTY LOCATED IN ANCHORAGE, 

ALASKA FROM THE UNITED STATES TO THE ALASKA 

NATIVE TRIBAL HEALTH CONSORTIUM, ‘‘ALASKA 

NATIVE TRIBAL HEALTH CONSORTIUM LAND 

TRANSFER ACT’’; H.R. 740, TO PROVIDE FOR THE SETTLEMENT OF CERTAIN CLAIMS UNDER THE ALASKA 

NATIVE CLAIMS SETTLEMENT ACT, AND FOR OTHER 

PURPOSES, ‘‘SOUTHEAST ALASKA NATIVE LAND ENTITLEMENT FINALIZATION AND JOBS PROTECTION 

ACT’’; H.R. 841, TO AMEND THE GRAND RONDE RESERVATION ACT TO MAKE TECHNICAL CORRECTIONS, 

AND FOR OTHER PURPOSES, H.R. 931, TO PROVIDE 

FOR THE ADDITION OF CERTAIN REAL PROPERTY TO 

THE RESERVATION OF THE SILETZ TRIBE IN THE 

STATE OF OREGON; H.R. 1306, TO PROVIDE FOR THE 

PARTIAL SETTLEMENT OF CERTAIN CLAIMS UNDER 

THE ALASKA NATIVE CLAIMS SETTLEMENT ACT, 

‘‘SOUTHEAST ALASKA NATIVE LAND CONVEYANCE 

ACT’’; AND H.R. 1410, TO PROHIBIT GAMING ACTIVITIES ON CERTAIN INDIAN LANDS IN ARIZONA UNTIL 

THE EXPIRATION OF CERTAIN GAMING COMPACTS, 

‘‘KEEP THE PROMISE ACT OF 2013’’

Thursday, May 16, 2013

U.S. House of Representatives 

Subcommittee on Indian and Alaska Native Affairs 

Committee on Natural Resources 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 2:55 p.m. in room 

1324, Longworth House Office Building, Hon. Don Young [Chairman of the Subcommittee] presiding. 

Present: Representatives Young, Gosar, Mullin, LaMalfa, 

Hanabusa, Ruiz, and Grijalva. 

Also Present: Representative Schweikert. 

Mr. YOUNG. The Committee will come to order. First, let me 

apologize to the witnesses and everybody who waited a period of 

time. We had these unfortunate votes, but we had them anyway. 

The Subcommittee on Indian and Alaska Native Affairs is meeting today to hear testimony on six bills concerning Indian Tribes 

and Alaskan Native organizations. 

Under Committee Rule 4(f), the opening statements are limited 

to the Chairman and the Ranking Member of the Subcommittee so 

we will hear from our witnesses more quickly. However, I ask 

unanimous consent to include any other Members’ opening statements in the hearing record if submitted to the clerk by close of 

business today. Hearing no objection, so ordered. 

2

STATEMENT OF THE HON. DON YOUNG, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF ALASKA 

Mr. YOUNG. The six bills we are hearing today resolve a variety 

of land related issues affecting tribes in Oregon, Arizona and Alaska, a Native health provider and a Native regional corporation. 

The sponsors represent the District of lands affected by their 

bills, and therefore, the legislation is an important constituent 

service for them. 

H.R. 740, a bill I introduced with Ranking Member 

Hanabusa——

Ms. HANABUSA. Hanabusa. 

Mr. YOUNG. Hanabusa; excuse me. Senator. 

[Laughter.] 

Mr. YOUNG. Will authorize Sealaska, the regional Native corporation for southeast Alaska to finalize its 40 year old land settlement 

due under the Alaska Native Claims Settlement Act of 1971 by selecting Native lands from within a designated pool of land in southeast Alaska. 

First introduced over 6 years ago, this bill has undergone an extensive vetting process throughout the region and has resulted in 

meaningful changes such as providing for continued public access 

to lands and modifying certain land selections among them. 

In addition, the legislation allows Sealaska to move away from 

sensitive watersheds, to select a more balanced inventory of second 

growth and old growth, and to select most of its remaining ANCSA 

lands on the existing road system, preserving on balance as much 

as 40,000 acres of inventoried ‘‘roadless old growth.’’

Furthermore, southeast Alaska communities face dire economic 

realities. Some of these communities have unemployment nearing 

50 percent and many are in double digits. It was not always this 

way but through the mismanagement of the forest by the Forest 

Service and a continued siege from environmental groups, industry 

has suffered, and over the last couple of decades, the population 

has seen a consistent and steep decline. 

By permitting Sealaska to select its remaining entitlement lands 

from outside the withdrawal boxes, the Sealaska bill will help 

Sealaska to maintain jobs in rural and predominately Native communities. Sealaska provides hundreds of jobs and is the largest private employer in the entire region. 

For nearly 40 years since the passage of ANCSA, Sealaska has 

still not received conveyance of its full land entitlement. It is critical that Sealaska complete its remaining land entitlement under 

ANCSA in order to continue to meet the economic, social and cultural needs of its Native shareholders and the Native community 

throughout Alaska. 

The hearing agenda includes several other bills. H.R. 1306 is an 

interim measure to sustain Sealaska’s timber program until 

H.R. 740 can be enacted into law. 

H.R. 623 provides for a small conveyance of land for the Alaska 

Native Tribal Health Consortium to carry out its valuable medical 

services for Alaska Native people. 

H.R. 841 and H.R. 931 are sponsored by Congressman Schrader 

of Oregon to provide a smoother process for the Department of the 

3

Interior to process trust land applications filed by two tribes in his 

District. 

Finally, H.R. 1410 is a modified version of a bill passed by an 

overwhelming majority of the House last year to prohibit additional 

Indian casinos in the Phoenix area in accordance with the guarantees made by Arizona’s Indian Tribes when the tribal-State compact was ratified. 

At this time, I will recognize the Ranking Member for her opening statement. 

[The prepared statement of Mr. Young follows:]

PREPARED STATEMENT OF THE HONORABLE DON YOUNG, CHAIRMAN, SUBCOMMITTEE

ON INDIAN AND ALASKA NATIVE AFFAIRS

The six bills on the hearing agenda today resolve a variety of land-related issues 

affecting tribes in Oregon and Arizona, an Alaska Native health provider, and a Native Regional Corporation. The sponsors represent the district of lands affected by 

their bills and therefore the legislation is an important constituent service for them. 

H.R. 740, a bill I introduced with Ranking Member Hanabusa, will authorize 

Sealaska, the regional Alaska Native Corporation for southeast Alaska, to finalize 

its 40-year old land settlement due under the Alaska Native Claims Settlement Act 

(ANCSA) of 1971 by selecting Native lands from within a designated pool of land 

in southeast Alaska. 

First introduced over 6 years ago, this bill has undergone an extensive vetting 

process throughout the region that has resulted in meaningful changes such as providing for continued public access to lands, and modifying certain land selections, 

among others. 

In addition, the legislation allows Sealaska to move away from sensitive watersheds, to select a more balanced inventory of second growth and old growth, and 

to select most of its remaining ANCSA lands on the existing road system, preserving 

on balance as much as 40,000 acres of inventoried ‘‘roadless old growth.’’

Further, southeast Alaska communities face dire economic realities. Some communities have unemployment nearing 50 percent and many more are in the double digits. It was not always this way, but through the mismanagement of the forest by 

the Forest Service and the continued siege from environmental groups, industry has 

suffered and, over the last couple decades, the population has seen a consistent and 

steep decline. 

By permitting Sealaska to select its remaining entitlement lands from outside of 

the withdrawal boxes, the Sealaska bill would help Sealaska maintain jobs in rural 

and predominately Native communities. Sealaska provides hundreds of jobs and is 

the largest private employer in the entire region. 

After nearly 40 years since the passage of ANCSA, Sealaska has still not received 

conveyance of its full land entitlement. It is critical that Sealaska complete its remaining land entitlement under ANCSA in order to continue to meet the economic, 

social and cultural needs of its Native shareholders, and the Native community 

throughout Alaska. 

The hearing agenda includes several other bills. H.R. 1306 is an interim measure 

to sustain Sealaska’s timber program until H.R. 740 can be enacted into law. 

H.R. 623 provides for a small conveyance of land for the Alaska Native Tribal 

Health Consortium to carry out its valuable medical services for Alaska Native people. 

H.R. 841 and H.R. 931 are sponsored by Congressman Schrader of Oregon, to provide a smoother process for the Department of the Interior to process trust land applications filed by two tribes in his district. 

And finally, H.R. 1410 is a modified version of a bill passed by an overwhelming 

majority of the House last year, to prohibit additional Indian casinos in the Phoenix 

area in accordance with guarantees made by Arizona’s Indian tribes when the tribal-state compact was ratified. 

STATEMENT OF THE HON. COLLEEN W. HANABUSA, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF HAWAII 

Ms. HANABUSA. Thank you, Chairman Young. The six bills that 

are the subject of today’s legislative hearing address important 

4

issues in Indian country, but today’s agenda does not include the 

bill that provides a legislative fix to the Carcieri vs. Salazar decision, one of Indian country’s top legislative priorities. 

Ranking Member Markey and I introduced H.R. 666 in February 

to address the misguided Supreme Court decision. I am proud to 

say that H.R. 666 is a bipartisan bill with 29 co-sponsors. We requested that our bill be included in today’s agenda, but the Majority denied our request. 

For the record, Mr. Chairman, I respectfully renew our request 

to include H.R. 666 in the next legislative hearing agenda. 

Turning to today’s agenda, H.R. 841 and 931 would authorize the 

Secretary of the Interior to use reservation criteria in evaluating 

land into trust applications by the Confederated Tribes of the 

Grand Ronde Reservation and the Confederated Tribes of the Siletz 

Indians of Oregon. 

These bills would enable these congressionally terminated tribes 

to rebuild and restore their original reservations. 

We learned in a hearing on identical bills last Congress that both 

tribes have important reasons to seek this change in secretarial authority, yet it is my understanding that this agreement between 

the tribes about the exterior boundaries of the Coast or the Siletz 

Coast Reservation remain, and that progress toward an accommodation of this issue has not been made. 

I hope that this Subcommittee can assist the parties in finding 

a reasonable and agreeable solution to this issue in order to enhance the Grand Ronde and Siletz Tribes’ self governance authorities within their territories. 

Another important bill that we consider today is Chairman 

Young’s bill, H.R. 740. I supported the previous version of the bill 

in the 112th Congress and I am an original co-sponsor of the legislation before us today. 

I strongly believe that the Sealaska Corporation has the best interest of its shareholders, some 20,000 Alaskan Natives, in mind 

when it proposed transferring ownership of lands into Tongass National Forest under H.R. 740. 

This bill would potentially end years of conflict over Sealaska’s 

remaining land entitlement under the Alaska Native Claims Settlement Act, and bring closure to an issue that has dragged on for 

three Congress’ and two Administrations. 

Against this backdrop, I look forward to hearing from Sealaska 

and the Administration witnesses about compromises that have 

been made in the 2 years since this Subcommittee held a hearing 

on the subject. 

I believe such discussion will benefit the Subcommittee members 

in understanding the hard work that has gone into the legislation. 

Finally, H.R. 1410 is a bill that would define the Phoenix metropolitan area to impose a geographic limitation on tribes that seek 

to conduct Class II and Class III gaming activities on land acquired 

in trust after April 9, 2013. This prohibition would remain in place 

until the current Tribal State Gaming Compact expires in 2027. 

This is an issue that has been litigated with a decision being released just over a week ago, and still has unresolved questions. 

5

I look forward to hearing from Chairman Norris and Chairwoman Enos about how this bill affects their tribes, and from Director Black regarding the Administration’s view. 

I welcome all our witnesses here today, and I yield back, Mr. 

Chairman. 

[The prepared statement of Ms. Hanabusa follows:]

PREPARED STATEMENT OF THE HONORABLE COLLEEN W. HANABUSA, RANKING

MEMBER, SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS

Thank you, Chairman Young. 

The six bills that are subject to today’s legislative hearing address important interests in Indian country. But today’s agenda does not include a bill that provides 

a legislative fix to the Carcieri v. Salazar decision, one of Indian country’s TOP legislative priorities. Ranking Member Markey and I introduced H.R. 666 in February 

to address the misguided Supreme Court decision. I am proud to say that H.R. 666 

is a bipartisan bill with 29 cosponsors. We requested that our bill be included in 

today’s agenda, but the majority denied our request. For the record, Mr. Chairman, 

I respectfully renew our request to include H.R. 666 in the next legislative hearing 

agenda. 

Turning to today’s agenda, H.R. 841 and H.R. 931 would authorize the Secretary 

of the Interior to use ‘‘on reservation’’ criteria in evaluating land into trust applications by the Confederated Tribes of the Grand Ronde Reservation and the Confederated Tribes of Siletz Indians of Oregon. These bills would enable those congressionally-terminated tribes to rebuild and restore their original reservations. 

We learned in a hearing on identical bills last Congress that both tribes have important reasons to seek this change in Secretarial authority. Yet it is my understanding that disagreement between the tribes about the exterior boundaries of the 

‘‘Coast’’ or the ‘‘Siletz Coast’’ Reservation remain, and that progress toward an accommodation on this issue has not been made. I hope that this Subcommittee can 

assist the parties in finding a reasonable and agreeable solution to this issue in 

order to enhance Grand Ronde and Siletz tribes’ self-government authorities within 

their territories. 

Another important bill that we will consider today is Chairman Young’s bill, H.R. 

740. I supported the previous version of the bill in the 112th Congress and am an 

original cosponsor of the legislation before us today. I strongly believe that the 

Sealaska Corporation has the best interests of its shareholders, some 20,000 Alaska 

Natives, in mind when it proposed transferring ownership of lands in the Tongass 

National Forest under H.R. 740. This bill would potentially end years of conflict 

over Sealaska’s remaining land entitlement under the Alaska Native Claims Settlement Act, and bring closure to an issue that has dragged on for three Congresses 

and two Administrations. 

Against this backdrop, I look forward to hearing from Sealaska and the Administration’s witnesses about compromises that have been made in the 2 years since this 

Subcommittee held a hearing on the subject. I believe such discussion will benefit 

the Subcommittee members in understanding the hard work that has gone into the 

legislation. 

Finally, H.R. 1410 is a bill that would define the Phoenix metropolitan area to 

impose a geographic limitation on tribes that seek to conduct Class II and Class III 

gaming activities on land acquired in trust after April 9, 2013. This prohibition 

would remain in place until the current tribal-state gaming compact expires in 2027. 

This is an issue that has been litigated with a decision being released just over a 

week ago and still has unresolved questions. 

I look forward to hearing from Chairman Norris and Chairwoman Enos about how 

this bill affects their tribes and from Director Black regarding the Administration’s 

views. 

I welcome all our witnesses here today, and I yield back. 

Mr. YOUNG. I thank the good lady, and just one comment on 

Carcieri. We are going to have a hearing and a markup on that 

bill, but these are constituent bills here individually. That is why 

we are doing it. Thank you, ma’am. 

Ms. HANABUSA. Thank you. 

Mr. YOUNG. I am glad you reminded me. 

6

Ms. HANABUSA. Thank you, I have to remind you about these 

things. 

Mr. YOUNG. Thank you. I am getting mature, so be careful. 

I look forward to hearing our witnesses now. Michael Black, Director of Bureau of Indian Affairs. Robert McSwain, Deputy Director for Management Operations, Department of Health and Human 

Services, and Jim Pen ̃a, Associate Deputy Chief, National Forest 

System, U.S. Forest Service. That is my first panel. 

Gentlemen, again, I do apologize for not being here. These things 

happen in this crazy world we live in. 

I believe you all know the rules. Five minutes. The little red 

lights will go on when you are up on your 5 minutes. Try to keep 

it short. If you are really enthralling with your testimony, I might 

let you go longer. If you are not, I will cut you off shorter. Keep 

that straight. 

I guess that is it. We will start out with Mr. Black. 

STATEMENT OF MICHAEL S. BLACK, DIRECTOR, BUREAU OF 

INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR 

ACCOMPANIED BY: MARIA WISEMAN, ASSOCIATE DEPUTY DIRECTOR, 

OFFICE OF INDIAN GAMING, BUREAU OF INDIAN AFFAIRS, U.S. 

DEPARTMENT OF THE INTERIOR 

Mr. BLACK. Good afternoon, Chairman Young, Ranking Member 

Hanabusa, and members of the Subcommittee. My name is Michael 

Black and I am the Director of the Bureau of Indian Affairs. Accompanying me today is the Associate Deputy Director from the Office of Indian Gaming, Maria Wiseman. 

Thank you for the opportunity to present the Department of the 

Interior’s views on three bills, H.R. 931, a bill to provide for the 

addition of certain real property to the Reservation of the Siletz 

Tribe, which the Department supports; H.R. 841, a bill to amend 

the Grand Ronde Reservation Act, to make technical corrections 

and for other purposes, which the Department also supports; and 

H.R. 1410, a bill that will prohibit Class II and Class III gaming 

activities on lands acquired in trust by the Secretary of the Interior 

for the benefit of an Indian tribe within a defined Phoenix metropolitan area. 

The prohibition would last from April 9, 2013 until January 2, 

2027. The Department opposed H.R. 1410. 

I have previously testified before this Subcommittee in support 

of the previous versions of H.R. 931 and H.R. 841, and since these 

bills have not changed significantly, the Department continues to 

support H.R. 931 and H.R. 841. 

In order to stay within my allotted time, I will not restate the 

details in my testimony on those two bills. 

However, since H.R. 1410 is new, I will spend my time on this 

bill. H.R. 1410 would prohibit Class II and Class III gaming on any 

lands taken into trust for an Indian tribe by the Secretary of the 

Interior if those lands are within the defined Phoenix metropolitan 

area. The Phoenix metropolitan area is defined in Section 3 of the 

bill. 

This gaming prohibition would retroactively begin April 9, 2013 

and expire on January 1, 2027. 

7

While H.R. 1410 does not name a specific Tribe nor amend a particular law, the Department concludes, based on the subject matter, 

that this bill has a similar effect of the bill introduced in the previous 112th Congress involving the Tohono O’odham Nation and its 

53.54 acre parcel in Maricopa County, Arizona. 

The Tribe has requested that the Secretary acquire this land in 

trust pursuant to the Gila Bend Indian Reservation Lands Replacement Act of 1986, also known as the Gila Bend Act. 

The Gila Bend Act was intended to remedy damage to the tribes’ 

lands caused by flooding and the construction of the Painted Rock 

Dam. 

The United States and the Tohono O’odham Nation agreed to 

terms of the Gila Bend Act, which included restrictions on where 

and how the nation could acquire replacement lands. In the accompanying 1987 agreement between the Federal Government and the 

tribe, the tribe gave up its right and title to 9,880 acres of land and 

approximately 36,000 acre-feet of Federal Reserve water rights. 

The Gila Bend Act authorized the Secretary of the Interior to 

take up to 9,880 acres of unincorporated land in Pima, Pinal, and 

Maricopa Counties in the trust for the nation, subject to certain 

other requirements, and mandated that the land ‘‘shall be deemed 

to be a Federal Indian Reservation for all purposes.’’

Congress was clear when it originally enacted the Gila Bend Act 

in which it stated that ‘‘Replacement lands shall be deemed to be 

a Federal Indian Reservation for all purposes.’’

By this language Congress intended that the nation be permitted 

to use the replacement lands as any other tribe would use for its 

own Reservation trust lands for all purposes. 

H.R. 1410 would impact the nation’s Gila Bend Act by imposing 

additional restrictions beyond those agreed upon by the United 

States and the Tohono O’odham Nation nearly 25 years ago. 

H.R. 1410 would negatively impact the nation’s all purposes use 

of selected lands under the Gila Bend Act by limiting the nation’s 

ability to conduct Class II and Class III gaming on such selected 

lands. H.R. 1410 would also alter the Indian Gaming Regulatory 

Act that prohibits gaming on lands acquired by the Secretary and 

a trust for the benefit of an Indian tribe after October 17, 1988 except in certain circumstances. 

The effect of H.R. 1410 would be to add a tribe specific and area 

specific limitation to IGRA. The process for determining whether 

lands qualify for an exception to this prohibition is firmly established. 

To wrap up, Mr. Chairman, the Department is aware that the 

nation’s request to acquire land in trust for gaming purposes in 

Maricopa County has been the subject of significant contention 

among tribes and local governments in the State of Arizona, and 

the Assistant Secretary’s decision to approve the trust acquisition 

pursuant to congressional mandate has been the source of litigation 

which is still pending. 

However, IGRA already establishes a process to determine 

whether lands are eligible for gaming, and that question is currently pending before the Department. The Department respects 

Congress’ authority to legislate in this area. However, we are concerned about establishing a precedent for singling out particular 

8

Tribes through legislation to restrict their access to equal application under the law. 

This Administration has consistently held the position that fair 

and equal application of our laws toward all tribes is essential to 

upholding the United States’ nation-nation relationship with 

Indian tribes. 

Thank you, and I am happy to answer any questions the Subcommittee may have. 

[The prepared statement of Mr. Black follows:]

PREPARED STATEMENT OF MICHAEL S. BLACK, DIRECTOR, BUREAU OF INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR, ON H.R. 841, H.R. 931, AND H.R. 1410

H.R. 841—TO AMEND THE GRAND RONDE RESERVATION ACT

Chairman Young, Ranking Member Hanabusa, and members of the Subcommittee, my name is Michael Black and I am the Director of the Bureau of Indian 

Affairs. Thank you for the opportunity to present the Administration’s views on 

H.R. 841, a bill to amend the Grand Ronde Reservation Act to make technical corrections, and for other purposes. The Department of the Interior (Department) supports H.R. 841. 

Taking land into trust is one of the most important functions that the Department 

undertakes on behalf of Indian tribes. Homelands are essential to the health, safety, 

and welfare of the tribal governments. Thus, the Department has made the restoration of tribal homelands a priority. 

H.R. 841 amends an act to establish a reservation for the Confederated Tribes of 

the Grand Ronde Community of Oregon, Pub. L. No. 100–425 (Sept. 9, 1988), to authorize the Secretary of the Interior to place in trust approximately 288 acres of real 

property located within the boundaries of the original 1857 reservation of the Confederated Tribes of the Grand Ronde Community of Oregon if the real property is 

conveyed or otherwise transferred to the United States by or on behalf of the tribe. 

Furthermore, the bill provides that the Secretary is to treat all applications to take 

land into trust within the boundaries of the original 1857 reservation as an on-reservation trust acquisition, and that all real property taken into trust within those 

boundaries after September 9, 1988, are to be considered part of the tribe’s reservation. 

Again, the Department supports H.R. 841. Thank you for the opportunity to 

present testimony on H.R. 841. I will be happy to answer any questions you may 

have. 

H.R. 931—A BILL TO PROVIDE FOR THE ADDITION OF CERTAIN REAL PROPERTY TO THE

RESERVATION OF THE SILETZ TRIBE IN THE STATE OF OREGON

Chairman Young, Ranking Member Hanabusa, and members of the Subcommittee, my name is Michael Black and I am the Director for the Bureau of Indian Affairs. Thank you for the opportunity to present the Department of the Interior’s (Department) views on H.R. 931, a bill to provide for the addition of certain 

real property to the reservation of the Siletz Tribe. 

Taking land into trust is one of the most important functions that the Department 

undertakes on behalf of Indian tribes. Homelands are essential to the health, safety, 

and welfare of the tribal governments. Thus, this Administration has made the restoration of tribal homelands a priority. This Administration is committed to the restoration of tribal homelands, through the Department’s acquisition of lands in trust 

for tribes, where appropriate. While the Department acknowledges that tribes near 

the Siletz Tribe oppose H.R. 931, the Department supports H.R. 931. 

H.R. 931 would amend the Siletz Tribe Indian Restoration Act, 25 U.S.C. § 711e, 

to authorize the Secretary of the Interior to place land into trust for the Siletz Tribe. 

The lands lie within the original 1855 Siletz Coast Reservation and are located in 

the counties of Benton, Douglas, Lane, Lincoln, Tillamook, and Yamhill, which are 

all located within the State of Oregon. H.R. 931 would also provide that such land 

would be considered and evaluated as an on-reservation acquisition under 25 CFR 

§ 151.10 and become part of the tribe’s reservation. The bill does not make the original Siletz Reservation into a reservation for the Siletz Tribe or create tribal jurisdiction over the original Siletz Reservation. 

Thank you for the opportunity to present the Department’s views on this legislation. I will be happy to answer any questions you may have. 

9

H.R. 1410

Good morning, Chairman Young, Ranking Member Hanabusa, and members of 

the Committee. My name is Michael Black. I am the Director of the Bureau of Indian Affairs at the Department of the Interior (Department). I am here today to provide the Department’s testimony on H.R. 1410, the Keep the Promise Act of 2013, 

which is a bill that if enacted would prohibit Class II and Class III gaming activities 

on lands, within a defined ‘‘Phoenix metropolitan area’’, acquired in trust by the 

Secretary of the Interior for the benefit of an Indian tribe after April 9, 2013, and 

such prohibition shall expire on January 1, 2027. 

H.R. 1410, the ‘‘Keep the Promise Act’’ would prohibit Class II and III gaming 

on any lands taken into trust for an Indian tribe by the Secretary of the Interior, 

if those lands are within the ‘‘Phoenix metropolitan area,’’ as defined in Section 3 

of H.R. 1410, and the prohibition of Class II and Class III gaming on such lands 

taken into trust for an Indian tribe would retroactively begin April 9, 2013, and expire on January 1, 2027. The Department opposes H.R. 1410. 

H.R. 1410 does not specifically identify a tribe or amend a particular law, but because of the subject matter of the bill, the Department concludes that this bill has 

a similar effect as a bill introduced in the previous 112th Congress involving the 

Tohono O’odham Nation (Nation) and the Nation’s 53.54 acre parcel (Parcel 2) in 

Maricopa County, Arizona, which the Nation has requested that the Secretary acquire the land in trust pursuant to the Gila Bend Indian Reservation Lands Replacement Act (Public Law 99–503) (Gila Bend Act). 

Background

The Tohono O’odham Nation (Nation) is a federally recognized tribe located in 

southern and central Arizona. The Nation has approximately 30,000 enrolled members, and has one of the largest tribal land bases in the country. 

The San Lucy District is a political subdivision of the Nation. It was created by 

Executive Order in 1882 and originally encompassed 22,400 acres of land. In 1960, 

the U.S. Army Corps of Engineers (Corps) completed construction of the Painted 

Rock Dam on the Gila River. Both the Bureau of Indian Affairs (BIA) and the Corps 

assured the Nation that flooding would not impair agricultural use of lands within 

the San Lucy District. 

Nevertheless, construction of the dam resulted in continuous flooding of nearly 

9,880 acres of land within the San Lucy District, rendering them unusable for economic development purposes. Included among the destruction was a 750-acre farm 

that had previously provided tribal revenues. The loss of these lands forced a number of the Nation’s citizens to crowd onto a 40-acre parcel of land. 

Gila Bend Indian Reservation Lands Replacement Act Pub. L. 99–503

Congress first moved to remedy the plight of the Nation’s San Lucy District in 

1982, when it directed the Secretary of the Interior to study the flooding and identify replacement lands within a 100-mile radius. After attempts to find replacement 

lands failed, Senators Barry Goldwater and Dennis DeConcini, along with then-Congressmen John McCain and Mo Udall, sponsored legislation to resolve the situation. 

Congress enacted the Gila Bend Indian Reservation Lands Replacement Act (Public 

Law 99–503) (Gila Bend Act) in 1986 to redress the flooding of the Nation’s lands. 

The Gila Bend Act authorized the Nation to purchase private lands as replacement reservation lands. In the accompanying 1987 agreement between the Federal 

Government and the Nation, the Nation gave up its right and title to 9,880 acres 

of land and approximately 36,000 acre-feet of Federal reserved water rights. The 

Gila Bend Act authorized the Secretary of the Interior to take up to 9,880 acres of 

unincorporated land in Pima, Pinal, or Maricopa Counties into trust for the Nation, 

subject to certain other requirements, and mandated that the land ‘‘shall be deemed 

to be a Federal Indian Reservation for all purposes.’’

Assistant Secretary’s Decision 

The Nation purchased a 53.54 acre parcel (Parcel 2) in Maricopa County, Arizona, 

and requested that the Secretary acquire the land in trust pursuant to the Gila 

Bend Act. On July 23, 2010, Assistant Secretary Echo Hawk issued a letter to Ned 

Norris, Jr., Chairman of the Tohono O’odham Nation, stating that the Nation’s request for the trust acquisition of Parcel 2 satisfied the legal requirements of the Gila 

Bend Act and that the Department was obligated to, and therefore would, acquire 

the land in trust pursuant to congressional mandate. This decision is currently the 

subject of several related lawsuits, one of which is pending before the United States 

Court of Appeals for the Ninth Circuit. 

10

H.R. 1410

H.R. 1410, would negatively impact the Nation’s ‘‘all purposes’’ use of selected 

lands under the Gila Bend Act by limiting the Nation’s ability to conduct Class II 

and Class III gaming on such selected lands. 

Congress was clear when it originally enacted the Gila Bend Act in 1986, in which 

it stated that replacement lands ‘‘shall be deemed to be a Federal Indian Reservation

for all purposes.’’ By this language, Congress intended that the Nation be permitted to use replacement lands as any other tribe would use its own reservation 

trust lands ‘‘for all purposes’’.

The Gila Bend Act was intended to remedy damage to the Nation’s lands caused 

by flooding from the construction of the Painted Rock Dam. The United States and 

the Tohono O’odham Nation agreed to the terms of the Gila Bend Act, which included restrictions on where and how the Nation could acquire replacement lands. 

H.R. 1410 would specifically impact the Nation’s Gila Bend Act by imposing additional restrictions beyond those agreed upon by the United States and the Tohono 

O’odham Nation 25 years ago. The Department cannot support legislation that specifically impacts an agreement so long after the fact. 

While the purpose of H.R. 1410 would be to restrict the Nation from conducting 

gaming on the 53.54 acre parcel in Maricopa County, Arizona, the effect of 

H.R. 1410 would reach all remaining selectable lands under the Gila Bend Act. 

H.R. 1410 would also alter established law that prohibits gaming, authorized 

under the Indian Gaming Regulatory Act (IGRA), on lands acquired by the Secretary into trust for the benefit of an Indian tribe after October 17, 1988, except 

in certain circumstances. The effect of this legislation would be to add a tribe-specific and area-specific limitation to the IGRA. The process for determining whether 

lands qualify for an exception to this prohibition is firmly established. 

The Department is aware that the Nation’s request to acquire land in trust for 

gaming purposes in Maricopa County has been the subject of significant contention 

among tribes and local governments in the State of Arizona. As previously noted, 

the Assistant Secretary’s decision on July 23, 2010, to approve the trust acquisition 

pursuant to congressional mandate has been the source of litigation, which is still 

pending. However, IGRA already establishes a process to determine whether lands 

are eligible for gaming, and that question is pending before the Department. The 

Department’s opposition to H.R. 1410 is not based upon any particular analysis of 

whether the land in Maricopa County would be eligible for gaming, but rather for 

the other policy concerns expressed in this testimony. 

The Department respects Congress’s authority to legislate in this area. However, 

we are concerned about establishing a precedent for singling out particular tribes 

through legislation to restrict their access to equal application of the law. This Administration has consistently held the position that fair and equal application of our 

laws toward all tribes is essential to upholding the United States’ nation-to-nation 

relationship with Indian tribes. 

For these reasons, the Department opposes H.R. 1410. This concludes my prepared statement. I am happy to answer any questions the Subcommittee may have. 

Mr. YOUNG. Thank you, Mr. Black. 

Mr. McSwain?

STATEMENT OF ROBERT MCSWAIN, DEPUTY DIRECTOR FOR 

MANAGEMENT OPERATIONS, INDIAN HEALTH SERVICES, 

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Mr. MCSWAIN. Good afternoon, Mr. Chairman and members of 

the Committee. I am Robert McSwain, the Deputy Director for 

Management Operations, and I had the pleasure of appearing before you before on a land issue. 

I am pleased to have the opportunity to testify on H.R. 623, the 

Alaska Native Tribal Health Consortium Land Transfer Act, providing for the conveyance of certain Indian Health Service real 

property located in Anchorage, Alaska to ANTHC. 

First of all, I want to say that the Indian Health Service supports this bill and views it as the proposed transfer of furthering 

11

the special relationship the Indian Health Service enjoys with 

Indian tribes, specifically Alaska Native Governments in this case. 

Moreover, it actually furthers the President’s Memorandum on 

Administrative Flexibility as it pertains to tribal governments. 

Now having said that, we do have some comments on the bill 

itself, and I just would like to point those out, in the interest of 

brevity, you have my whole statement. 

We believe that H.R. 623 could be improved in four particular 

areas. One, the conveyance language should be revised to allow no 

less than 90 days for the property to be transferred. Second, the 

environmental liability language needs to be clarified so that 

ANTHC is responsible for any environmental contamination which 

may have occurred since the control it assumed in 1999 to the date 

of conveyance. 

The reversionary clause language should be clarified to apply in 

the case of retrocession in any event, although I certainly would believe this is highly unlikely. We only have four throughout the 

country since 1975. 

The legal description needs to be changed to describe accurately 

the property being conveyed. We have had some later descriptions 

on that, and I can certainly respond to those. 

The whole process is now underway, and I think it would be important for the Committee to know we have been working with 

ANTHC on a quick claim deed, which is going through all the various processes that are necessary to transfer the land under that 

authority, and certainly the bill actually would transfer it under a 

warranty deed, which is one that is rare. We have had some experiences certainly with the previous transfer to the Maniilaq, and we 

have gone to school on that one, and it is our first experience, and 

that has occurred very satisfactorily to both the tribe and the 

Indian Health Service. 

With that, I will end my remarks, and be pleased to answer any 

questions the Committee may have. Thank you. 

[The prepared statement of Mr. McSwain follows:]

PREPARED STATEMENT OF ROBERT MCSWAIN, DEPUTY DIRECTOR FOR MANAGEMENT

OPERATIONS, INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN

SERVICES

H.R. 623—TO PROVIDE FOR THE CONVEYANCE OF CERTAIN PROPERTY FROM THE UNITED

STATES TO THE ALASKA NATIVE TRIBAL HEALTH CONSORTIUM LOCATED IN ANCHORAGE, ALASKA

Mr. Chairman and members of the Committee: 

Good afternoon. I am Robert McSwain, Deputy Director for Management Operations of the Indian Health Service (IHS). I am pleased to have the opportunity to 

testify on H.R. 623, the Alaska Native Tribal Health Consortium (ANTHC) Land 

Transfer Act, providing for the conveyance of Indian Health Service (IHS) real property located in Anchorage, Alaska to ANTHC. 

The Indian Health Service (IHS) plays a unique role in the Department of Health 

and Human Services (HHS) because it is a health care system that was established 

to meet the Federal trust responsibility to provide health care to American Indians 

and Alaska Natives (AI/ANs). The mission of the IHS, in partnership with American 

Indian and Alaska Native people, is to raise the physical, mental, social, and spiritual health of AI/ANs to the highest level. The IHS provides comprehensive health 

service delivery to approximately 2.1 million AI/ANs through 28 Hospitals, 61 

health centers, 33 health stations and 3 school health centers. Tribes also provide 

healthcare access through an additional 16 hospitals, 235 health centers, 164 Alaska 

Village Clinics, 75 health stations and 6 school health centers. In support of the IHS 

12

mission, the IHS and tribes provide access to functional, well maintained and accredited health care facilities and staff housing. 

H.R. 623 would provide for the conveyance of certain property located in Anchorage, Alaska from the Federal Government to the Alaska Native Tribal Health Consortium (ANTHC) in Anchorage, Alaska. ANTHC assumed responsibility for the provision of the IHS-funded health care services in 1999 under the authority of the Indian Self-Determination and Education Assistance Act (ISDEAA). The Federal property described in H.R. 623, which is used in connection with health and related programs in Anchorage, Alaska by the IHS, is currently in the process of being transferred through quitclaim deed to the ANTHC. 

On April 26, 2013, IHS executed a Memorandum of Agreement (MOA) with 

ANTHC, which sets forth terms and conditions under which easements will be established so IHS may transfer ownership of the Anchorage property to ANTHC by 

quitclaim deed. H.R. 623 provides for the conveyance of the Anchorage property 

from the United States to the ANTHC and proposes to replace the pending quitclaim deed transfer by authorizing the use of a warranty deed. The easements, 

which will be established under the MOA, must remain intact if a warranty deed 

is executed. 

The IHS supports this bill because it views the proposed transfer as furthering 

the special partnership that exists with American Indian and Alaska Native tribal 

governments, and, moreover, is in keeping with the Presidential Memorandum on 

Administrative Flexibility as it pertains to tribal governments. It is important to 

emphasize that, as a normal practice, we do not transfer properties via the warranty 

deed mechanism. However, we will support an exception in this case because of the 

ANTHC initiative to expand access to its health care system for IHS beneficiaries 

from throughout Alaska. This proposal will give the ANTHC flexibility to leverage 

additional resources because ownership of the property under a warranty deed will 

give them unencumbered ownership of the property described in H.R. 623. 

We believe the language, relating to the following issues needs to be clarified and/

or revised:

• Conveyance language should be revised to allow no less than 90 days to convey 

the property to ANTHC; 

• Environmental Liability language needs to be clarified so the ANTHC is responsible for any environmental contamination which may have occurred since its 

control of the property began in 1999, or for contamination that may occur or 

arise ‘‘as of, or after, the date of the 2013 conveyance’’; and, 

• ‘‘Reversionary Clause’’ language should be clarified to apply in case of retrocession by ANTHC from their ISDEAA compact. 

• Legal Description language needs to be changed to describe accurately the property to be conveyed.

We believe that reasons to use this mechanism in future cases are limited. IHS 

anticipates no problems with the quitclaim deed currently being processed by IHS 

for ANTHC. Traditionally, Alaska Native Corporations have preferred to leave the 

title of their facilities previously operated by the IHS with the Federal Government 

and the majority of the health care facilities used by the tribes in the other 35 

States are located on tribally owned lands. This warranty deed transfer would be 

the fourth of its kind in Alaska. IHS is currently preparing three warranty deeds 

authorized by Congress to transfer parcels of land to the Maniilaq Association previously transferred through a quitclaim deed. On other numerous occasions properties were transferred to tribes or tribal organizations through quitclaim deeds. 

We think retrocession is unlikely. We can count only four retrocessions since the 

enactment of ISDEAA in 1975. Three were only small program components which 

have been re-assumed by the tribes. None of these were in the Alaska Area. 

We look forward to working with you, Mr. Chairman, on measures like these to 

improve the health of the Alaska Native population. Mr. Chairman, this concludes 

my testimony. I appreciate the opportunity to appear before you to discuss H.R. 623. 

I will be happy to answer any questions the committee may have. Thank you. 

Mr. YOUNG. Thank you, sir. 

The next panelist is Mr. Pen ̃a. 

13

STATEMENT OF JIM PEN ̃ A, ASSOCIATE DEPUTY CHIEF, NATIONAL FOREST SYSTEM, U.S. FOREST SERVICE, DEPARTMENT OF AGRICULTURE 

Mr. PEN ̃ A. Thank you, Mr. Chairman, Ranking Member 

Hanabusa, and members of the Committee. Thank you for the opportunity to appear before you today to provide the Department of 

Agriculture’s views on H.R. 740, the Southeast Alaska Native Land 

Entitlement Finalization and Jobs Protection Act, and H.R. 1306, 

the Southeast Alaska Native Land Conveyance Act. 

H.R. 740 is a comprehensive bill. H.R. 1306 is what might be 

called a stopgap measure until a comprehensive bill can be completed. 

I will first address H.R. 740. The Department of Agriculture supports the principal objectives of this legislation to finalize 

Sealaska’s remaining Alaska Native Claims Settlement Act entitlement, and promptly complete conveyance of it. 

Under Secretary Harris Sherman expressed such support nearly 

2 years ago during hearings in both Houses on similar legislation 

in the 112th Congress. The Under Secretary concluded his testimony by saying the Department would continue to work with 

Sealaska and all interested parties to resolve concerns and find solutions that worked for everyone. 

We are grateful that H.R. 740 incorporates many of the provisions that would move us toward that solution. In this way, it is 

a significant improvement over previous legislation. 

However, H.R. 740 leaves out key provisions essential to a balanced solution and adds others that make reaching such a solution 

more difficult. 

Consequently, the Department of Agriculture does not support 

enactment of H.R. 740 as written. We appreciate the work the 

Chairman has put in to this legislation and recognize its importance to the State of Alaska. We hope to continue working with 

Sealaska and the Committee to resolve the remaining concerns and 

find solutions acceptable to all parties. 

Now, I will address H.R. 1306, the Southeast Alaska Native 

Land Conveyance Act. Under H.R. 1306, two of the parcels contained in H.R. 740, the North Election Creek and the North Cleveland parcels, would be conveyed to Sealaska within 60 days of enactment of the bill. 

These two parcels would be conveyed without the carefully negotiated provisions of 740 related to special use authorizations and 

public access that many stakeholders see as essential. 

We believe it is far better to resolve the remaining issues associated with Sealaska’s land entitlement selections with a comprehensive settlement such as H.R. 740 than to enact partial measures 

such as 1306 that does not finalize Sealaska’s remaining entitlement. 

For these reasons, USDA does not support enactment of H.R. 

1306. 

This concludes my testimony, and I would be happy to answer 

any questions that you may have. 

[The prepared statement of Mr. Pen ̃ a follows:]

14

PREPARED STATEMENT OF JIM PEN ̃ A, ASSOCIATE DEPUTY CHIEF, NATIONAL FOREST

SYSTEM, U.S. FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE, ON H.R. 740 

AND H.R. 1306

H.R. 740, THE ‘‘SOUTHEAST ALASKA NATIVE LAND ENTITLEMENT FINALIZATION AND JOBS

PROTECTION ACT’’

Mr. Chairman and members of the Committee, thank you for the opportunity to 

appear before you today to provide the Department of Agriculture’s views on 

H.R. 740, the ‘‘Southeast Alaska Native Land Entitlement Finalization and Jobs 

Protection Act,’’ and, the ‘‘Southeast Alaska Native Land Conveyance Act.’’ The 

former is a comprehensive bill; the latter is what might be called a stopgap measure 

until a comprehensive bill can be completed. I will now address H.R. 740, the comprehensive measure, with H.R. 1306 addressed in separate written testimony. 

H.R. 740 would allow the Sealaska Corporation, a Regional Corporation established under the Alaska Native Claims Settlement Act of 1971 (ANCSA), to obtain 

its remaining land entitlement under ANCSA from portions of the Tongass National 

Forest outside of the withdrawal areas to which Sealaska’s selections are currently 

restricted by law. 

The Department of Agriculture supports the principal objectives of this legislation, 

to finalize Sealaska’s remaining ANCSA entitlement, and promptly complete conveyance of it. Under Secretary Harris Sherman expressed such support nearly 2 years 

ago during hearings in both houses on similar legislation of the 112th Congress. The 

Under Secretary concluded his testimony by saying the Department would continue 

to work with Sealaska and all interested parties to resolve concerns and find solutions that work for everyone. 

Soon after those hearings, at the request of Senators Murkowski and Bingaman, 

USDA and the Forest Service began working closely with Senate staff, the Department of the Interior, Sealaska, and others to develop a balanced, compromise bill 

to resolve the long-standing issues that have delayed the completion of Sealaska’s 

ANCSA entitlement. We are grateful that H.R. 740 incorporates many of the provisions developed in those discussions; in this way, it is a significant improvement 

over previous legislation. However, H.R. 740 leaves out key provisions essential to 

a balanced solution and adds others that make reaching such a solution more difficult. Consequently, the Department of Agriculture opposes enactment of H.R. 740 

unless it is amended as described in this statement. 

Under H.R. 740, if the Sealaska board of directors approves the conveyances contemplated by the bill within 90 days of its enactment, the Secretary of the Interior 

would convey to Sealaska 25 parcels of Federal land on the Tongass National Forest 

totaling some 69,235 acres within 60 days. Sealaska would also be allowed to apply 

within 2 years to the Secretary of the Interior for 127 cemetery sites and historical 

places. This conveyance would be limited to a total of 840 acres. If any of these sites 

were rejected, Sealaska could apply for additional cemetery sites. These conveyances 

totaling 70,075 acres of Federal land would be the full and final satisfaction of 

Sealaska’s remaining land entitlement under ANCSA. 

USDA has several significant policy concerns with H.R. 740: It excludes a provision to offset the impact of conveying thousands of acres of young growth forest to 

Sealaska; it also excludes provisions to establish conservation areas to balance the 

overall impacts of the bill and other provisions that would bolster the protection of 

three highly productive salmon streams on lands being conveyed to Sealaska; it 

would allow Sealaska to apply for 127 cemetery sites and historical places, scores 

of which are in existing Wilderness areas; and it would require expedited conveyance of more parcels of Federal lands that have not been agreed to in the negotiations conducted over the last 2 years. 

USDA has serious concerns with the potential effects of the bill on the transition 

to young growth forest management in southeast Alaska. USDA is making extensive 

efforts to transition the Tongass timber program, and the timber industry in southeast Alaska, away from a reliance on old-growth timber towards a reliance primarily 

on the harvest of young growth stands. We believe this transition is essential to the 

long-term social and economic sustainability of the industry, and of the local economies of the communities in southeast Alaska. 

Under H.R. 740, many of the oldest second-growth stands on the Tongass would 

be conveyed to Sealaska. That would accelerate Sealaska’s young growth program, 

but substantially delay the development of the Forest Service’s young growth program on the Tongass unless additional steps are taken. The steps recommended by 

the Administration relate to the ‘‘Culmination of Mean Annual Increment,’’ or 

CMAI. This is a provision of the National Forest Management Act which, in lay 

terms, generally limits the harvest of young growth forest stands until they have 

15

reached their maximum rate of growth. In order for the Tongass to continue its 

transition to harvesting young growth without any delay caused by the transfer of 

lands to Sealaska, the Administration recommends that a limited amount of young 

growth timber on the Tongass be expressly exempted from CMAI. This exemption 

is not precedent-setting; it would apply only to the Tongass National Forest, due to 

the unique situation presented by this legislation. The existing CMAI provision contained in the NFMA would not be amended. We recognize that this issue is controversial, and negotiations are continuing among several parties. The absence of 

the provision recommended by the Administration poses a primary obstacle to enactment of H.R. 740. 

The conservation areas and stream buffer provisions of the Senate companion bill, 

S. 340, are also viewed as essential components of a balanced, compromise solution 

to the long-standing debate over how to resolve Sealaska’s remaining ANCSA land 

entitlement. We urge the Committee to add those provisions to H.R. 740. 

Section 6 of H.R. 740 would allow Sealaska to apply for up to 127 additional cemetery sites and historical places. Forty-six of these are within congressionally designated Wilderness areas on the Tongass National Forest. One is on private land 

and is not listed in the Wilsey and Ham report referenced in the bill. Three more 

sites are within the 25 parcels of Federal lands that would be conveyed under Section 5 of H.R. 740. Finally, one of the sites has been selected by the State of Alaska 

and is not available for conveyance to Sealaska. Therefore, we recommend that Section 6 of H.R. 740 be amended to limit the number of sites to 76 and otherwise conform with Section 5 of the Senate bill, S. 340. 

Finally, H.R. 740 would convey seven parcels of land not agreed to in the discussions that have taken place over the last 2 years. USDA has consistently recommended limiting the number of small inholdings on the Tongass, to minimize the 

confusion and inconvenience to the public and management problems that result 

from them. Each of these sites is believed to have potential for future hydropower 

development. All were specifically rejected during previous discussions, due partly 

to pre-existing development interests. Energy development has been proposed and 

abandoned at two of the sites due to conflicts with their high recreational use. Additionally, one of these sites is designated as a Special Interest Area in the Tongass 

Forest Plan to protect the area’s recreational values. For all these reasons, we urge 

the Committee to amend H.R. 740 to reflect the compromise package of conveyances 

contained in S. 340. 

There are several other technical amendments that we believe are needed. We 

hope to continue working with Sealaska and the Committee on these issues. 

H.R. 1306, THE ‘‘SOUTHEAST ALASKA NATIVE LAND CONVEYANCE ACT’’

Under H.R. 1306, two of the parcels contained in H.R. 740, the North Election 

Creek and North Cleveland parcels, would be conveyed to Sealaska within 60 days 

of enactment of the bill. These two parcels, which include 3,380 acres of Federal 

land, would be conveyed without the carefully negotiated provisions of H.R. 740 related to special use authorizations and public access that many stakeholders see as 

essential. We believe that it is far better to resolve the remaining issues associated 

with Sealaska’s land entitlement selections under ANCSA with a comprehensive 

settlement such as H.R. 740 with the changes already discussed, than to enact a 

piece-meal, stopgap measure such as H.R. 1306 that does not finalize Sealaska’s remaining entitlement. 

For these reasons, USDA opposes enactment of H.R. 1306. 

This concludes my testimony; I would be happy to answer any questions you may 

have. 

Mr. YOUNG. Thank you, sir. Questions? Ms. Hanabusa? 

Ms. HANABUSA. Thank you, Mr. Chairman. First of all, I would 

like to begin with Director McSwain. I just want to clarify what 

your issues are with H.R. 623. You said you do not like the 30 days 

and you would prefer it to be 90 days, and the other issue I heard 

was a quick claim versus a warranty deed. 

Is there anything else I am missing in your objections or your 

concerns? 

Mr. MCSWAIN. The other issues I raised was simply the legal description, the reversionary clause, and the environmental language, 

but to answer your question you just raised, the difference between 

16

a quick claim and certainly a warranty deed, the quick claim is one 

that is authorized under the Indian Self-Determination Act. 

It requires us to have a reversionary clause in the event the tribe 

ever chooses to return the program to us under a retrocession. So, 

it is a nice little mechanical process, but the warranty deed removes that reversionary clause, and we then transfer the land in 

total without encumbrances, except for agreed upon easements. 

Ms. HANABUSA. You would want the reversionary clause. You 

would like a quick claim because of the reversionary clause aspects 

of it so that in the event, for whatever reason, the health corporation no longer does what it is intended to do, those lands will return plus the functions will return to the Government? Am I understanding correctly? 

Mr. MCSWAIN. That is correct, because then the Government 

would be responsible then for carrying out the services and would 

need a location to do that. 

Ms. HANABUSA. Thank you. Director Black, I am going to focus 

on 1410. You said you do not really have any issues with 841 or 

931, but you do have issues with 1410. 

You basically are concerned that with the role of Congress, that 

Congress is playing in the resolution of this particular dispute, in 

other words, they have come to Congress to ask for a resolution between basically the Plaintiffs and the Defendants in a particular 

lawsuit that is pending. Is that correct? 

Mr. BLACK. I think the nexus of the lawsuits would be what is 

on 1410; yes. 

Ms. HANABUSA. Let me ask you this, because it does trouble me 

that we are trying to resolve an issue between basically not only 

one tribe but a group of tribes on one side and one nation on the 

other side. 

Now the problem I have is in reading the recent decision that 

came down about a couple of weeks ago, it is very clear there are 

certain issues that the court could not resolve, and because of the 

fact they are sovereign nations, they would have had to waive their 

sovereign immunities before certain types of arguments could be 

heard. 

In particular, those in equity versus those in compact or those in 

contract. Now, what I want to know is does Interior or any part 

of the Interior, whether it is BIA or whoever, have a mechanism 

by which they can address these concerns prior to them coming to 

Congress? 

If they are not justiciable, for lack of a better term, and they 

have no place else to go, it would seem Congress is where the are 

going to come. 

Do you have a mechanism to basically give them an alternative 

to coming to Congress? 

Mr. BLACK. I would probably have to go back and provide you a 

better answer than I am probably going to give you right now, but 

on the face of it, I would say, no, we do not. We are largely implementing the Gila Bend Act on behalf of the Tohono O’odham Nation here in their acquisition of this 53.54 acres of land that happens to be in the Glendale area there within the Phoenix area. 

Ms. HANABUSA. I understand that, Mr. Black. I am not being 

specific to the particular dispute that is before us. What I am askVerDate 0ct 09 2002 15:12 May 16, 2014 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6602 X:\03INDI~1\03MY16~1\5-16-1~1\80981.TXT MARK
17

ing you about is that issue generally, when two tribes, sovereign 

in and of themselves, have a dispute such as this where sovereign 

immunity is not waived for the judicial system to make the decision, do you know of any mechanism within Interior that could assist in that resolution? 

To make it comparable, like being able to go to the Hague Tribunal or maybe the United Nations or something like that. Do you 

have a mechanism like that? 

Mr. BLACK. I do not know of anything right offhand, but I will 

take that back and provide the information if there is anything out 

there. 

Ms. HANABUSA. If you could, I would appreciate it. It seems like 

in a situation where we are at a stalemate such as this, they have 

no choice and we would be the final arbiter. 

With that, Mr. Chair, I yield back. 

Mr. YOUNG. I thank the madam. Mr. Lamalfa? 

[No response.] 

Mr. YOUNG. Who is next? My good friend, you were here first so 

I will let you ask the question first. 

Mr. GRIJALVA. Thank you. For my edification, does Sealaska’s 

proposed selections include high value old growth timber as part of 

the selections they made? 

Mr. PEN ̃ A. Yes, the parcels that we have negotiated with 

Sealaska includes some high value old growth timber. It also involves second growth timber, a mix of timber types. 

Mr. GRIJALVA. Conservation priority watersheds, are they part of 

it as well? 

Mr. PEN ̃ A. Did you say priority watersheds? 

Mr. GRIJALVA. Yes. 

Mr. PEN ̃ A. I am not sure what that term means. The Tongass 

Forest plan does not use the term ‘‘priority watersheds,’’ but I 

know there are important watersheds included in the parcels. We 

have some concerns about protection for those, particularly three 

important salmon rivers and protections on those. 

Mr. GRIJALVA. Can you define ‘‘high grading’’ for me? 

Mr. PEN ̃ A. High grading, in my context, I am a forester so most 

of my career is in putting up timber sales and dealing with timber 

sales, and high grading in that context has been going into a particular area and cutting the best trees and leaving the rest. 

I am not exactly sure what the context is that you are using, 

but——

Mr. GRIJALVA. Targeting logging old growth as a priority. 

Mr. YOUNG. Will the gentleman yield? 

Mr. GRIJALVA. Absolutely. 

Mr. YOUNG. I hope you are not misinterpreting, ‘‘old growth timber’’ in Southeast is truly old growth and is dead, it has little value 

because we eliminated the pulp mills. Those are the facts. Old 

growth is not naturally good timber. It is the new timber that we 

are frankly interested in. 

Mr. GRIJALVA. The point I am leading to is that the Tongass 

Timber Reform Act has an explicit ban on that harvesting, if I am 

not correct. I want to know if that ban would be applicable to the 

legislation that we are talking about. 

Mr. PEN ̃ A. OK. 

18

Mr. GRIJALVA. Given the Chairman’s comments. 

Mr. PEN ̃ A. Thank you for that clarification. The Tongass Timber 

Reform Act does reference a prohibition on using the term ‘‘high 

grading,’’ and it is my understanding that the act specifically applied that to two timber sales that at the time were in question, 

and that beyond those two timber sales, there is no prohibition on 

using the term ‘‘high grading’’ on the Tongass National Forest. 

Mr. GRIJALVA. Thank you. Let me just ask on H.R. 1410 before 

my time is up. You mentioned the Administration is concerned that 

H.R. 1410, if enacted, would set a negative precedent for singling 

out tribes to make them ineligible for legislation that was intended 

to apply equally to all tribes. 

H.R. 1410 is that kind of a slippery slope in that respect, and 

why would that be bad policy in terms of the precedent it sets or 

does not set? Sir? 

Mr BLACK. H.R. 1410 would directly amend IGRA and make the 

opportunities available to all tribes, unavailable to one tribe in this 

case. It is also a slippery slope largely because it sets precedence 

for disturbing existing settlements that are out there, such as the 

Gila Bend Act. 

Mr. GRIJALVA. The legal complications when this whole issue 

began, my position and I think at the time most of the delegation’s 

position was to let the court work its will. I think there have been 

three administrative decisions, eight court decisions, and the most 

recent one made seven, that summary judgment with two areas to 

be consulted later, some time at the end of May, that ruled in favor 

of the O’odham Nation, so this legislation, if it is hurried, past the 

29th, would preempt all those court decisions and administrative 

hearings and decisions of record that have happened up to this 

point; correct? 

Mr. BLACK. If you do not mind, sir, I am going to turn this question over to Maria Wiseman. 

Mr. GRIJALVA. Please. 

Ms. WISEMAN. Thank you. I am Maria Wiseman, Associate Deputy Director of the Office of Indian Gaming. You are right, there 

have been several decisions on these matters, one on the Secretary’s decision to take the land in trust in 2010, and that has 

been litigated before the district court and in the 9th Circuit and 

now it is pending in the 9th Circuit. 

Up until this point, the Secretary has prevailed in the litigation, 

and the courts have determined it could be lawfully taken into 

trust under the Gila Bend Act. 

When you are talking about the decision that came out last 

week, which was a decision about the compact itself, the district 

court ruled that on its face, the compact was not violated. There 

is no prohibition on gaming in the Phoenix metropolitan area, and 

therefore, the compact is not violated. 

We are following these cases and these will determine the outcome really of these issues. 

Mr GRIJALVA. I think that was the original intent, Mr. Chairman. I know this is a constituent issue. It is a constituent issue 

for me as well, and I know how important that is to you, Mr. 

Chairman. The O’odham Nation is in the district that I happen to 

19

have the privilege to represent, so their interests are important as 

constituents as well. 

I mention that because Ranking Member Markey and I had 

asked for a continuance on this until the May 29th re-hearing with 

the judge in terms of the two items to be further discussed and an 

opinion on, and to allow the full process of the court to work its 

will. This legislation would not allow that. One of the reasons for 

the opposition on my part is exactly that, and I yield back. 

Mr. YOUNG. Thank you, sir. Mr. Ruiz? 

Dr. RUIZ. Thank you very much. The first question, Director 

Black, is are local counties given a voice to either approve or object 

to land into trust applications under the current on or off reservation land into trust criteria? 

Mr. BLACK. Yes, sir, they are. It varies. An off reservation trust 

application, the concerns, comments, objections of State and county 

local governments are given probably a little more weight, a little 

more analysis than they are on an on reservation application. 

Dr. RUIZ. What was their response to this scenario? 

Mr. BLACK. From? 

Dr. RUIZ. From the county, the local counties. Do they have any 

concerns on H.R. 1410? 

Mr. BLACK. That, I do not know about, sir. 

Dr. RUIZ. OK. Does the Secretary take land into trust over the 

objections of impacted non-Indian communities? 

Mr. BLACK. We have in the past, yes, sir. I am sorry. I apologize. 

I was a little confused with what bill you were referring to exactly. 

Yes, there were concerns that did come in on the old bill or the 

Tohono O’odham. 

Dr. RUIZ. Can you elaborate on that more? 

Mr. BLACK. I do not have the specifics of what the exact objections were. I think a lot of those are some of the cases that have 

been brought before in litigation. 

Dr. RUIZ. Would H.R. 1410 amend the exceptions to gaming on 

after acquired lands under the Indian Gaming Regulatory Act? 

Mr. BLACK. On that question, sir, if you do not mind, I would like 

to turn that over to Maria. 

Dr. RUIZ. OK. 

Ms. WISEMAN. Thank you. Well, I think it certainly would affect 

those exceptions because the bill prohibits all gaming, Class II and 

Class III inside of that area, and IGRA would allow that, it would 

allow Class II and Class III inside those areas. It really does effectively limit that, so yes. 

Dr. RUIZ. OK. I yield back my time. 

Mr. YOUNG. Thank you. On H.R. 1410, Mr. Black, the concern I 

have, the way I have followed this, and in the last hearing we had, 

all the tribes signed the compact. The public was sold that compact 

through advertisement and it was a compact that was agreed there 

would be no more advanced gambling within the Phoenix area. 

How do we justify you taking land in the trust and having gambling take place when that compact was passed? It had to be 

passed by the State, by the way. How do you arbitrarily break the 

contract? 

20

Mr. BLACK. First, let me answer kind of the first part of the 

question and then turn it over to Maria, if that is OK, Mr. Chairman. 

Mr. YOUNG. Fine. 

Mr. BLACK. We brought land into trust under the Gila Bend Act, 

which specified under that act that the tribes can bring land into 

trust for all purposes. Beyond that, on the specifics of the compact, 

I know Maria has a lot more understanding of that and how that 

worked out and Prop 202 in Arizona. I would ask her to expand 

on that. 

Mr. YOUNG. On the compact signed by the State Governor and 

signed by all the tribes, including this one the argument is about. 

How do you break the contract or compact? 

Ms. WISEMAN. Thank you. The compact itself in Section 3(j) identifies the areas that can be gamed in, and in that Section 3(j), there 

is no prohibition on gaming in the Phoenix metropolitan area. 

When we look really closely at this, and there are limitations in 

the compact on the number of machines and the number of casinos, 

but there is no limitation that pertains to the Phoenix metropolitan 

area. 

Mr. YOUNG. That is not what they sold to the public. That is not 

what was signed. I have the letters. No more gambling in the Phoenix area. That is in the compact. 

Ms. WISEMAN. If I may, if you were to look at Section 3(j), and 

I know you have, it actually does not have a prohibition. When we 

are looking at the validity of a compact or a violation of the compact, we have to look to the words of the compact itself. 

I know the court, the district court, in their opinion last week, 

was raising some other issues and they are still looking at that. 

In that opinion, the court said the compact itself, the words of 

the compact do not prohibit gaming in the Phoenix metropolitan 

area, so there is no violation of the compact. 

Mr. YOUNG. Well, do any of the promises to the public have any 

binding effect? 

Ms. WISEMAN. I think that is an issue for the courts, and the 

court is looking at that. They are looking under the State law. In 

terms of the compact itself and what was in the compact and what 

was agreed to by the voters in Prop 2 and what was signed by the 

State and by the tribe, there is no prohibition. 

Mr. YOUNG. Well, again, I would like to yield to my Ranking 

Member, she is a brighter lawyer than I am. Madam Senator, 

would you mind addressing that for me? 

Ms. HANABUSA. I am interested that the representations that are 

made here today are accurate and correct because this is a critical 

issue, and like my colleague, Congressman Grijalva, I also feel that 

we must wait or we should wait to hear the final briefings on this 

issue. 

I have the Decision and the Order. I disagree with you on a couple of things. One is that the court was very clear that because the 

sovereign immunity claims were raised on the contract or the compact, promissory estoppel, which would be the basis of the arguments raised that my good colleague here is saying, are barred because of the fact that you did not waive sovereign immunity or they 

did not waive sovereign immunity. 

21

However, it is also clear from the decision that the court did not 

completely dispose of this case because there are issues under the 

restatement of contracts, specifically section 201, subsection (2), I 

believe it is, because of the facts that the issues that have to be 

raised, and this is where the further briefing’s are going to take 

place to the court, and if I can read it for the record because of the 

fact that I think this is very critical for all of us to understand, 

that the plaintiffs claim ‘‘The nation actively encouraged the understanding of the compact while secretly planning to build a casino 

in the Phoenix metropolitan area. plaintiffs argue that this is 

enough under 202(2) of the restatement second of contracts for the 

court to interpret the compact in accordance with the State’s understanding. 

Additional briefing is required before the court can decide whether this claim can be resolved by summary judgment or whether a 

trial is required.’’

This is essential, and that is why my questions of Mr. Black were 

when the tribes do not waive sovereign immunity on a claim, and 

we all know promissory estoppel is when an equity as opposed to 

a contract claim, and because it was not waived, the court clearly 

said ‘‘Because the claim is not based on the compact, it does not 

fall within section 2710, subsection (d)(7)(a)(ii), waiver of sovereign 

immunity.’’

I think it is very critical that when you come before us and you 

say there are outstanding issues, that we be very clear as to what 

was decided, what cannot be decided, and the reason why it cannot. 

Chairman Young’s questions are about really technically that 

which rises in promissory estoppel, which is an equitable claim and 

therefore cannot be determined under sovereign immunity. 

That is what I think is really unfortunate about this particular 

situation because I think when you strip everything down, it does 

come down to were there representations made that not only the 

other tribes may have relied upon but in addition to that, under 

Proposition 202, I hope I have that number correct, as well as the 

voters when they voted and the Governor when signed. 

All I am saying is we need to have the accurate description when 

you come before this Committee and you are telling us what the 

court said. I think we can all agree many of the issues, yes, were 

disposed of, notwithstanding it is still not a final decision and this 

order could result, depending on what the further briefing has, 

with us continuing or this issue continuing to trial on restatement 

of contracts, 201, subsection (2). 

Do you agree with my reading of this order? 

Ms. WISEMAN. No, I do not, and I appreciate the clarification. 

There is certainly more briefing to be done. There are these questions about what was said and what was agreed to. That is still 

pending. That is absolutely correct. 

I think this case could still go to appellate court and further. You 

are absolutely right. The district court made its decision and we 

have that, but we expect further litigation on this point. 

Ms. HANABUSA. They did not quite make their full decision because they are expecting further briefing which could determine 

whether this thing goes further on to trial. 

Ms. WISEMAN. You are right. 

22

Ms. HANABUSA. Thank you. Thank you, Mr. Chair. 

Mr. YOUNG. I will tell you we had this—what was that? 

Mr. MCSWAIN. Maniilaq. 

Mr. YOUNG. Maniilaq transfer, and work with my staff and let’s 

see if we can get this done as quickly as possible. 

Mr. MCSWAIN. If I can just respond. 

Mr. YOUNG. Yes. 

Mr. MCSWAIN. I was thinking about why at least 90 days, our 

experience with Maniilaq is we had asked for 180. We did it in 90. 

It takes about that long because of some phase two issues we have 

with the environmental, but we have the experience now having 

done one. We can do it in 90 if the bill were to change to 90, we 

can do it in 90 as opposed to what we asked for. I think in the 

Maniilaq bill, we asked for 180 days. 

Because we have done so much of the work already and so fresh 

with the quick claim that is currently pending, we could wrap this 

up in 90 days. 

Mr. YOUNG. Good. All right. I want to thank the panel. You got 

off easy, Mr. Black. I got a call from your boss, be easy on him, 

you know. 

[Laughter.] 

Mr. YOUNG. I would like to call up the next panel. Andy Teuber, 

Board Chair and President, Alaska Native Tribal Health Consortium. Reyn Leno, Tribal Council Chair, The Confederated Tribes of 

Grand Ronde. Delores Pigsley, Tribal Chairman, Confederated 

Tribes of Siletz Indians of Oregon. Byron Mallott, Member, Board 

of Directors, Sealaska Corporation, who is accompanied by Jaeleen 

Kookesh Araujo, General Counsel of Sealaska. 

Mr. Teuber, you are up first. 

STATEMENT OF ANDY TEUBER, CHAIRMAN AND PRESIDENT, 

ALASKA NATIVE TRIBAL HEALTH CONSORTIUM 

Mr. TEUBER. Good afternoon, Chairman Young, and Ranking 

Member Hanabusa, members of the Committee. My name is Andy 

Teuber. I am the Chairman and President of the Alaska Native 

Tribal Health Consortium. 

Thank you for the opportunity to testify in support of H.R. 623. 

ANTHC, as it is known, is a statewide tribal health organization 

that serves all 229 federally recognized tribes and over 140,000 

Alaskan Natives and American Indians in the State of Alaska. 

We are the largest and most comprehensive tribal health organization in the United States. Through a self governance compact, 

ANTHC provides health services that were previously provided by 

the Indian Health Service. 

ANTHC jointly operates the Alaska Native Medical Center with 

Southcentral Foundation. Located in Anchorage, this 150 bed hospital is the statewide tertiary care center for over 140,000 Alaskan 

Natives and American Indians who reside in Alaska. 

Annually, we provide over 287,000 outpatient visits; 54,000 

emergency department visits; over 8,000 inpatient admissions; 

1,500 infant deliveries, and 10,000 surgical procedures. 

We believe that ANMC is one of the finest facilities in the Indian 

health service. As a Level II Trauma Center, ANMC is the highest 

certified trauma hospital in Alaska. This recognition certifies our 

23

ability to provide quality care to people who suffer traumatic injuries 24 hours a day, 365 days a year. 

Today, Alaska Natives are healthier and living longer as a result 

of the care provided at ANMC and the Alaska Tribal Health System. 

However, there is much work to be done. One of our main challenges is meeting the increased demand for health services of an 

ever increasing population of Alaskan Natives. The population we 

serve has increased by over 34 percent since ANMC first opened, 

increasing from about 105,000 in 1997 to nearly 142,000 in 2012. 

To meet current and future needs, ANTHC has developed a comprehensive campus facilities master plan. We have identified an 

immediate need for increased patient housing to increase capacity 

and throughput at ANMC. 

As ANMC serves as the referral hospital for tertiary cases in the 

entire health system, many of the patients we serve are from villages many hundreds of miles outside of Anchorage. For these individuals, the biggest challenge in accessing specialty care services at 

ANMC is the lack of housing and an affordable place to stay while 

in Anchorage. 

ANTHC has undertaken extraordinary efforts to accommodate 

traveling patients as best we can with limited resources. However, 

the cost of providing housing to patients and escorts under the current system has risen dramatically and will be unsustainable in 

the future. 

In 1999, the cost of providing housing for patients and escorts 

was $600,000. This cost has increased eight fold, to $4.8 million in 

2012. Because we receive only minimal reimbursements for providing patient housing, we expect an estimated net loss of $4.5 million for fiscal year 2012 for providing this patient housing. 

This cost is borne solely by ANTHC from ANMC operating funds 

and our current capacity for patient residential housing is 52 rooms 

at our ‘‘Q House,’’ as it is known, Quyana House, managed by 

ANMC, and 80 hotel rooms that ANMC contracts for at considerable expense. 

In order to provide improved patient care and contain costs for 

providing this housing to our patients who receive care at ANMC, 

we need to construct a 170 room residential and outpatient guest 

room facility. Estimated construction cost of the housing facility is 

$40 million. Currently, this cost would increase an estimated 7 percent due to inflation for every year of delay. 

The construction of the housing facility would save ANTHC an 

estimated $2 million per year. The patient housing facility will be 

built on the closest open land to ANMC located directly across the 

road north of ANMC. The housing facility will be connected to 

ANMC via a sky bridge maximizing patient care and minimizing 

transportation expenses. 

The title to this land is currently held by the Indian Health Service. There are no buildings on the 2.79 acre parcel ANTHC is seeking to obtain title to and it is currently being used for parking. 

To address parking issues that may arise from this displacement, 

ANTHC is in a design phase of constructing a parking garage on 

the parcel. 

24

In order to obtain the financing necessary to achieve our long 

term expansion needs, it is necessary that ANTHC hold an 

unencumbered title to the land on which the patient housing facility will be located. This can only be accomplished through Federal 

legislation, thus the need for H.R. 623. 

We respectfully request favorable consideration of H.R. 623, 

which will allow us to successfully continue to fulfill the Federal 

Government’s trust responsibility by providing for the current and 

future health care needs of Alaskan Natives and American Indians. 

This concludes my testimony, Mr. Chair. I would be happy to respond to any questions that may arise from prior testimony, and 

thank you very much. 

[The prepared statement of Mr. Teuber follows:]

PREPARED STATEMENT OF ANDY TEUBER, CHAIRMAN AND PRESIDENT, ALASKA NATIVE

TRIBAL HEALTH CONSORTIUM

H.R. 623—ALASKA NATIVE TRIBAL HEALTH CONSORTIUM LAND TRANSFER ACT

Good afternoon Chairman Young and members of the Committee. My name is 

Andy Teuber. I am the Chairman and President of the Alaska Native Tribal Health 

Consortium. Thank you for the opportunity to testify in support of H.R. 623. 

ANTHC is a statewide tribal health organization that serves all 229 federally-recognized tribes and over 140,000 Alaska Natives and American Indians in Alaska. 

We are the largest, most comprehensive tribal health organization in the United 

States. Through a Self-Governance Compact, ANTHC provides health services that 

were previously provided by the Indian Health Service. 

ANTHC jointly operates the Alaska Native Medical Center (ANMC) with 

Southcentral Foundation. Located in Anchorage, this 150-bed hospital is the statewide tertiary care center for over 140,000 Alaska Natives and American Indians 

who live in Alaska. Annually, we provide over:

• 287,000 outpatient visits; 

• 54,000 emergency department visits; 

• 8,000 inpatient admissions; 

• 1,500 infant deliveries; and 

• 10,000 surgical procedures.

We believe ANMC is one of the finest facilities in the Indian health system. As 

a Level II Trauma Center, ANMC is the highest certified trauma hospital in Alaska. 

This recognition certifies our ability to provide quality care to people who suffer 

traumatic injuries 24 hours a day, 365 days a year. Today, Alaska Natives are 

healthier and living longer as a result of the care provided at ANMC and by the 

Alaska Tribal Health System. 

However, there is much more work to be done. One of our main challenges is 

meeting the increased demand for health services of an ever-increasing population 

of Alaska Natives. The population we serve has increased by over 34 percent since 

ANMC first opened, increasing from about 105,000 in 1997 to nearly 142,000 in 

2012. To meet current and future needs ANTHC has developed a comprehensive 

campus facilities master plan. We have identified an immediate need for increased 

patient housing to increase capacity at ANMC. 

As ANMC serves as the referral hospital for tertiary cases for the entire Alaska 

Tribal Health System, many of the patients we serve are from villages many hundreds of miles outside of Anchorage (see Exhibit A, attached). For these individuals, 

the biggest challenge in accessing specialty services at ANMC is the lack of housing 

and an affordable place to stay while in Anchorage. ANTHC has undertaken extraordinary efforts to accommodate traveling patients as best we can with limited 

resources. However, the cost of providing housing to patients and escorts under the 

current system has risen dramatically and will be unsustainable in the future. 

In 1999 the cost of providing housing for patients and escorts was $600,000. This 

cost has increased 8-fold to $4.8 million in FY 2012. Because we receive only minimal reimbursements for providing patient housing, we expect an estimated net loss 

of $4.5 million for in FY 2012 for providing patient housing. This cost is borne solely 

by ANTHC from ANMC operating funds. Our current capacity for patient residential housing is 52 rooms at our Quyana House, managed by ANMC, and 80 hotel 

rooms that ANMC contracts for at considerable expense. 

25

In order to improve patient care and contain costs for providing housing to patients (and their escorts) who receive care at ANMC, we need to construct a 170-

room residential and outpatient guest room facility. Estimated construction cost of 

the housing facility is $40 million currently (this cost would increase an estimated 

7 percent due to inflation for every year of delay). The construction of the housing 

facility would save ANTHC an estimated $2 million per year upon completion. 

The Patient Housing Facility will be built on the closest open land to ANMC, 

which is located directly across the road, north of ANMC. The housing facility will 

be connected to ANMC via a sky bridge, maximizing patient care and minimizing 

transportation expenses. 

The title to this land is currently held by the Indian Health Service. There are 

no buildings on the 2.79 acre parcel ANTHC is seeking to obtain title to and it is 

currently being used for parking (the 2.79 acre parcel is in the process of being subdivided from a larger 4.19 acre parcel—see Exhibits B and C, attached). To address 

parking issues that may arise from displacement, ANTHC is also in the design 

phase of constructing a parking garage on the parcel. 

In order to obtain the financing necessary to achieve our long-term expansion 

needs, it is necessary that ANTHC hold an unencumbered title to the land on which 

the Patient Housing Facility will be located on. This can only be accomplished 

through Federal legislation, thus the need for H.R. 623. 

We respectfully request favorable consideration of H.R. 623, which will allow us 

to successfully continue to fulfill the Federal Government’s trust responsibility by 

providing for the current and future health care needs of Alaska Natives and American Indians throughout Alaska. 

This critical legislation would help to improve the accessibility of much needed 

health services for Alaska Natives and American Indians whose health care status, 

despite years of progress, continues to lag far behind other populations in Alaska 

and the rest of the United States.


80981.001.eps
26

Mr. YOUNG. Thank you, Andy. 

Mr. Leno? 


80981.002.eps 80981.003.eps
27

STATEMENT OF REYN LENO, TRIBAL COUNCIL CHAIR, THE 

CONFEDERATED TRIBES OF GRAND RONDE 

Mr. LENO. Thank you. Chairman Young, Ranking Member 

Hanabusa, members of the Subcommittee, my name is Reyn Leno, 

and I am the Tribal Council Chairman of the Confederated Tribes 

of Grand Ronde in Oregon. 

Thank you for providing me the opportunity to testify in support 

of H.R. 841. I want to thank Representative Schrader for introducing H.R. 841 and the entire Oregon Delegation for their support 

of the legislation. 

H.R. 841 has the support of the Bureau of Indian Affairs and the 

unanimous support of Polk and Yamhill County Commissioners, 

the two counties affected by this bill. 

Except for several updated land descriptions, H.R. 841 is identical to the legislation which received a hearing in the Subcommittee on July 24, 2012. 

As a result of the Federal Government’s allotment and termination policies, Grand Ronde lost both its Federal recognition and 

its original Reservation of more than 60,000 acres. The Grand 

Ronde Restoration Act restored 9,811 acres of the tribe’s original 

Reservation to the Grand Ronde people. 

Since 1988, the tribe has pursued the goal of securing its sovereignty by acquiring additional parcels of its original Reservation 

and providing on-Reservation jobs and services to tribal and community members. 

The tribe is hampered in its efforts to restore land within its 

original Reservation by lengthy and cumbersome Bureau of Indian 

Affairs’ process. After it acquires a parcel in fee, the tribe must 

prepare a fee to trust application package for BIA. The BIA then 

processes the application as either an on-Reservation acquisition or 

an off-Reservation application. 

Because the tribe does not have exterior Reservation boundaries, 

instead has distinct parcels deemed Reservation through legislation, all parcels are processed under the more rigorous off-Reservation acquisition regulations, even if the parcel is located within the 

boundaries of the original Reservation. 

After the land is accepted in the trust, the tribe must take an 

additional step of amending its Reservation Act through Federal 

legislation to include the trust parcels in order for the land to be 

deemed Reservation land. 

Grand Ronde has been forced to come to the U.S. Congress three 

times in the last 20 years to amend its Reservation Act to secure 

Reservation status for its trust lands. This process is unduly time 

consuming, expensive, bureaucratic, and often takes years to complete. 

H.R. 841 would streamline the Department’s land into trust responsibilities to Grand Ronde, saving time and money which could 

better be utilized serving its membership. 

Based on the universal support of H.R. 841 and the importance 

of the legislation to the tribe, I request the legislation to be included in the Committee’s first markup. 

I look forward to any questions you may have on H.R. 841. 

I would like to take my remaining allotted time to provide views 

on H.R. 931. Grand Ronde is opposed to H.R. 931 as it would sigVerDate 0ct 09 2002 15:12 May 16, 2014 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 X:\03INDI~1\03MY16~1\5-16-1~1\80981.TXT MARK
28

nificantly infringe on the rights of the Grand Ronde and other 

tribes in western Oregon. 

Grand Ronde would be supportive of legislation if amended to 

limit the scope of the legislation to Lincoln County, consistent with 

the Siletz Indian Tribe Restoration Act. 

The Coast Reservation has never been designated exclusively for 

the Siletz, but for many tribes throughout western Oregon, including the antecedent tribes and bands of the Grand Ronde, such as 

the tribes of the Willamette Valley, Umpqua Valley and Rogue 

River Valley. 

While Grand Ronde, the Confederated Tribes of Coos, Lower 

Umpqua and Siuslaw Indians and others oppose the legislation, 

they can agree to disagree with the Siletz Tribe regarding its claim 

of primacy to the Coast Reservation. 

Let me provide three simple facts. Number one, it is opposed by 

at least two Oregon tribes with legitimate cultural and historical 

claims to the areas involved; two, fails to enjoy the support of each 

of the six counties affected by the legislation; and number three, 

does not have the support of the Congress and the Representatives 

who represent four of the six counties contained in the legislation. 

Thank you. 

[The prepared statement of Mr. Leno follows:]

PREPARED STATEMENT OF REYN LENO, TRIBAL COUNCIL CHAIR, THE CONFEDERATED

TRIBES OF THE GRAND RONDE COMMUNITY OF OREGON

H.R. 841—TO AMEND THE GRAND RONDE RESERVATION ACT TO MAKE TECHNICAL

CORRECTIONS, AND FOR OTHER PURPOSES

Chairman Young, Ranking Member Hanabusa, members of the Subcommittee. 

My name is Reyn Leno. I am the Tribal Council Chair of the Confederated Tribes 

of Grand Ronde in Oregon. I am proud to be here today representing over 5,000 tribal members and appreciate the opportunity to provide views on H.R. 841, a bill to 

amend the Grand Ronde Reservation Act to make technical corrections, and H.R. 

931, a bill to provide for the addition of certain real property to the reservation of 

the Siletz Tribe in the State of Oregon. 

I ask that my complete written testimony, which includes An Administrative History of the Coast Reservation by Dr. David G. Lewis and Dr. Daniel L. Boxberger, 

supporting resolutions from Polk and Yamhill County Commissioners, and correspondence pertaining to both bills from Representative Kurt Schrader be included 

in the record. 

First, I want to thank Representative Schrader for introducing H.R. 841, which 

has the bipartisan support of the entire Oregon Congressional Delegation and the 

Bureau of Indian Affairs, as well as the unanimous support of the Polk and Yamhill 

County Commissioners, the two counties affected by this legislation. The legislation 

is not opposed by any other tribe or affected interests and, except for several updated land descriptions, is identical to legislation which received a hearing in the 

Subcommittee on July 24, 2012. 

I was a child when Congress passed the Western Oregon Indian Termination Act 

ending Federal recognition of all western Oregon tribes, including Grand Ronde. As 

a result of the Federal Government’s allotment and termination policies, Grand 

Ronde lost both its Federal recognition and its original reservation of more than 

60,000 acres. Following the tribe’s termination in 1954, tribal members and the tribal government worked tirelessly to rebuild the Grand Ronde community. 

In 1983, these efforts resulted in the Grand Ronde Restoration Act, followed by 

the Grand Ronde Reservation Act in 1988, which restored 9,811 acres of the tribe’s 

original reservation to the Grand Ronde people. Since 1988, the tribe has pursued 

the goal of securing its sovereignty by acquiring additional parcels of its original 

reservation and providing on-reservation jobs and services to tribal members. 

The tribe’s restored reservation is located in the heart of the original Grand 

Ronde Indian Reservation. Today, the tribe owns a total of 12,535.70 acres of land, 

10,312.66 of which have reservation status. 10,052.38 acres of the reservation land 

is forested timber land, and the remaining 260.28 acres accommodates the tribe’s 

29

headquarters, housing projects, casino complex, Pow Wow Grounds, and supporting 

infrastructure. 

The tribe is hampered in its efforts to restore land within its original reservation 

by a lengthy and cumbersome Bureau of Indian Affairs (‘‘BIA’’) process. After it acquires a parcel in fee, the tribe must prepare a fee-to-trust application package for 

the BIA. The BIA then processes the application as either an ‘‘on-reservation acquisition’’ or an ‘‘off-reservation acquisition.’’ Because the tribe does not have exterior 

reservation boundaries (instead, it has distinct parcels deemed reservation through 

legislation), all parcels are processed under the more extensive off-reservation acquisition regulations—even if the parcel is located within the boundaries of the original 

reservation. 

After the land is accepted into trust, the tribe must take an additional step of 

amending its Reservation Act through Federal legislation to include the trust parcels in order for the land to be deemed reservation land. Grand Ronde has been 

forced to come to the U.S. Congress three times in the last 20 years to amend its 

Reservation Act to secure reservation status for its trust lands. This process is unduly time consuming, expensive, and often takes years to complete. 

In order to make both the fee-to-trust and reservation designation process less 

burdensome, Representative Kurt Schrader introduced H.R. 841 which would: (1) establish that real property located within the boundaries of the tribe’s original reservation shall be (i) treated as on-reservation land by the BIA, for the purpose of 

processing acquisitions of real property into trust, and (ii) deemed a part of the 

tribe’s reservation, once taken into trust; (2) establish that the tribe’s lands held in 

trust on the date of the legislation will automatically become part of the tribe’s reservation; and (3) correct technical errors in the legal descriptions of the parcels included in the Reservation Act. 

H.R. 841 would not only save Grand Ronde time and money that could be better 

utilized serving its membership, but would also streamline the Interior Department’s land-into-trust responsibilities to Grand Ronde, thus saving taxpayer money. 

At a time when Federal financial support for Indian Country is dramatically decreasing, Grand Ronde should be afforded the tools necessary to reduce its costs and 

maximize savings. 

Senate companion legislation, S. 416, was introduced by Senator Merkley and 

Senator Wyden. Prior to introduction, Grand Ronde was requested to reconfirm the 

support of the two counties in Oregon affected by this legislation, Polk and Yamhill, 

which it has done. The Bureau of Indian Affairs detailed its support for the legislation at a February 2, 2012 hearing before the Senate Indian Affairs Committee. 

While it has been suggested that the Grand Ronde and Siletz legislation must advance together through the legislative process, I would like to highlight Representative Schrader’s March 18, 2013 letter to Ranking Member Hanabusa, in which he 

states that ‘‘H.R. 841 is one of my highest legislative priorities.’’ Representative 

Schrader also states the following about H.R. 931:

I have also introduced H.R. 931 on behalf of The Confederated Tribes of 

Siletz Indians to simplify the fee-to-trust process for them as well. Though 

H.R. 931 is similar in nature to H.R. 841, I am working with the Siletz 

Tribe to address concerns raised by other Oregon Indian tribes and county 

governments to the legislation. Whereas H.R. 841 and H.R. 941 were introduced to address the individual needs of each tribe, I feel it is important 

that each bill be considered by the Committee on its own merits and support and should not be considered as paired.

Grand Ronde has worked long and hard to develop a consensus-based legislative 

proposal to assist the tribe in reacquiring lands within its original reservation. 

Based on the universal support of H.R. 841 and the importance of the legislation 

to the tribe, I request the legislation be included in the Committee’s first markup. 

I would like to take my remaining allotted time to provide views on H.R. 931. 

While Grand Ronde is opposed to H.R. 931 as currently drafted, we again reiterate our support for the legislation if it is amended to limit its scope to Lincoln 

County, consistent with the Siletz Indian Tribe Restoration Act. 

We support the Siletz’s objective of taking land into trust in Lincoln County that 

has historically been within the exclusive reservation land of the tribe, but we do 

not support the re-writing of history to expand the Siletz Reservation in a manner 

that excludes other federally recognized tribes from their hereditary land claims. 

Unlike Grand Ronde’s bill—which seeks to improve the process of acquiring lands 

in trust and return to reservation status those lands the Siletz Tribe reacquires 

within its original reservation—we believe the purpose of the Siletz legislation is to 

eliminate the historic claims of other tribes to the former Coast Reservation (which 

was set aside for all tribes in western Oregon) by equating the boundaries of the 

30

1Definition of ‘‘On-Reservation’’ for Land Acquisition Purposes at Siletz Reservation, Memorandum Opinion by the Assistant Regional Solicitor, U.S. Department of the Interior, June 1, 

1994 (‘‘. . . Congress made clear in the [Siletz] Tribe’s 1977 Restoration Act that ‘any reservation’ for the tribe is that established pursuant to § 711e of the Act. Thus, the reservation established pursuant to the 1980 Act adopting the reservation plan constitutes the tribe’s reservation 

for purposes of the land acquisition regulations in 25 CFR Part 151.’’ (citations omitted)). 2 Brief of U.S. Department of the Interior at 4, City of Lincoln v. U.S. Dept. of the Interior 

and Confederated Tribes of Siletz Indians of Oregon, No. 99–330 (D. Or. June 23, 2000). 3See Letter from Delores Pigsley, Tribal Chairwoman, Confederated Tribes of Siletz Indians, 

to The Honorable Ron Wyden, U.S. Senator, at 2, April 17, 2013 (‘‘The Siletz Tribe is the legal 

successor in interest to the historical Coos, Siuslaw and Lower Umpqua tribes of Indians.’’). 

Siletz Reservation (established 1875) with the boundaries of the Coast Reservation 

(established 1855). 

The Coast Reservation, as described in the Executive order dated November 9, 

1855, was never designated exclusively for the Siletz. It was set aside for Indians 

throughout western Oregon, including the antecedent tribes and bands of Grand 

Ronde, such as the tribes of the Willamette Valley, Umpqua Valley, and Rogue 

River Valley. The Siletz are aware that Grand Ronde has made its own historic 

claims to the Coast Reservation. Their proposed legislation is nothing more than a 

veiled attempt to eradicate the claims of Grand Ronde and other western Oregon 

tribes to the Coast Reservation. 

The Federal Government has not supported the Siletz’s expansive view of its reservation boundaries, holding that the tribe’s 1977 Restoration Act and its 1980 Reservation Act define its reservation boundaries. For example, a 1994 opinion issued 

by the Assistant Regional Solicitor of the Department of the Interior stated that the 

1977 and 1980 Restoration and Reservation Acts for the Siletz constitute the tribe’s 

reservation for the purpose of processing tribal requests for trust land acquisitions.1

In subsequent litigation by the Siletz, challenging the BIA’s interpretation of its 

land acquisition regulations, the Department of Justice supported the 1994 opinion 

by the Regional Solicitor. In a response brief filed on behalf of the Federal Government, the Department of Justice stated: 

[The 1994 opinion] analyzed the regulatory provision and concluded that it 

would not be consistent with the intent behind the regulations to consider 

all land located within the boundaries of the former Siletz or Coast Reservation to be within the tribe’s reservation.2

Despite these precedents, the Siletz Tribe is seeking to expand its reach from Lincoln County into five additional counties. For example, Yamhill County, which is included in H.R. 931, is part of the Grand Ronde Indian Reservation, as defined by 

its Restoration and Reservation Acts. While H.R. 931 allows for the easing of requirements to take land into trust for the Siletz in Yamhill County, no part of the 

Siletz Tribe’s reservation is located in Yamhill County. Additionally, the Siletz Tribe 

has never attempted to take land into trust in Yamhill County. 

Yamhill County does not support legislation to allow the Siletz to acquire land 

there, as documented by a July 12, 2012 letter expressing unanimous opposition to 

H.R. 931 by the Yamhill County Commissioners. While opposed to the legislation 

in its current form, Yamhill County Commissioners, like Grand Ronde, would support the legislation if limited to Lincoln County. 

Tillamook County is also included in H.R. 931. Many members of the Tillamook 

tribes (Nestucca, Nehalem, Salmon River and Tillamook) married into families living at the Grand Ronde Reservation, while continuing to hunt, fish and reside along 

the Oregon Coast. The entire Tillamook Territory of the Oregon coast is not the sole 

claim of any one reservation and it would be inappropriate to allow Siletz to assert 

such a claim today. In addition, Grand Ronde owns land in Tillamook County, one 

of the counties identified by the Congress in the Grand Ronde Restoration Act as 

the area where the tribe could acquire trust land to re-establish its Reservation. 

H.R. 931 is also opposed by the Confederated Tribes of Coos, Lower Umpqua and 

Siuslaw Indians (‘‘CTCLUSI’’) and infringes on their historic lands. Even though the 

CTCLUSI are separately recognized by the United States as an independent sovereign, the Siletz Tribe takes the position that it is the legal successor in interest 

to this tribal confederation.3

While Grand Ronde, CTCLUSI and others opposed to the legislation can agree to 

disagree with the Siletz Tribe regarding its claim of primacy to the Coast Reservation, the simple facts are that H.R. 931: (1) is opposed by at least two Oregon tribes 

with legitimate cultural and historical claims to the areas involved; (2) fails to enjoy 

the support of each of the six counties affected by the legislation; and (3) does not 

have the support of the Representatives who represent four out of the six counties 

contained in the legislation. 

31

For these reasons, we urge the Committee not to proceed with further consideration of H.R. 931 in its current form. 

Mr. YOUNG. I thank the gentleman. 

Ms. Delores Pigsley? 

STATEMENT OF DELORES PIGSLEY, CHAIRMAN, 

CONFEDERATED TRIBES OF SILETZ INDIANS OF OREGON 

Ms. PIGSLEY. Chairman Young, Ranking Member Hanabusa, and 

members of the Committee, thank you for holding the hearing 

today on H.R. 931. 

My name is Dee Pigsley and I serve as Chairman of the Confederated Tribes of Siletz Indians of Oregon, and have for 28 years. 

I want to thank Congressman Schrader, Walden and 

Blumenauer, Senator Merkley and Widen, and the Bureau of 

Indian Affairs for support of our legislation. 

Our legislation is not opposed by anyone other than our two 

neighboring tribes. Their contentions have been refuted and resolved by testimony, documentation, letters and responses to this 

Committee by the Bureau of Indian Affairs. 

Our neighbors will never drop their opposition no matter what 

the real history is. 

I ask the Committee to look at the record and the facts and give 

the Siletz Tribe the same treatment sought by the Grand Ronde 

Tribe for their tribe. 

This legislation is identical to the bill introduced by Congressman Schrader last Congress, which received a hearing in this Subcommittee. Its companion bill in the Senate was heard by the 

Indian Affairs Committee. 

The need for this legislation for Siletz’s is the same as for our 

neighbors. In both cases, the Federal Government robbed us of our 

land and even our Reservation boundary. When Siletz was restored 

to Federal recognition in 1977, it did not address the issue of the 

original Coast Reservation boundary. This creates a problem that 

most tribes do not have. 

Every parcel of ancestral land we seek to place in trust is considered off-reservation by the Bureau of Indian Affairs, even if it lies 

within our historic reservation. This adds significant time, costs 

and resources to place the land in trust. It has taken over 8 years 

for the Siletz’s to place a parcel of land into trust. 

We have an ongoing critical need to acquire additional lands in 

trust to meet the needs of the tribe for housing and other purposes. 

We are not a wealthy tribe and we purchase land as we are able. 

Every effort to reduce the cost and time of the process will directly help our membership. This legislation would accomplish this 

processing fee-to-trust applications within the boundary of our 

former reservation as on-reservation. 

Let me briefly respond to baseless allegations raised by the other 

two tribes against our legislation. Their claims amount to saying 

that the Siletz Tribe is not the successor tribe to the Siletz Reservation. 

The simple fact is that the Confederated Tribes of Siletz Indians 

have consistently been recognized by the Federal Government as 

32

the tribe representing the original Siletz Coast Reservation since 

its creation. 

Through determination and restoration, no other tribe can substantiate this claim. 

The Siletz’s claim to the Siletz Reservation was validated by the 

Bureau of Indian Affairs in testimony and in questions, for the 

record, last year. The Siletz’s would like to resubmit historic and 

legal information that resolves this issue beyond any question. 

This legislation is critical for our tribe to rebuild a small portion 

of our historic reservation so that we can house, feed and care for 

our membership. 

We support the Siletz and the Grand Ronde bills which are identical in purpose in moving forward. 

In closing, this is the third Congressional hearing on this legislation within a year. We have answered every question and provided 

substantial documentation to validate our answers, and we ask 

that the Committee review the record and advance our legislation, 

and we thank you. 

[The prepared statement of Delores Pigsley follows:]

PREPARED STATEMENT OF DELORES PIGSLEY, CHAIRMAN OF THE CONFEDERATED

TRIBES OF SILETZ INDIANS OF OREGON

IN SUPPORT OF H.R. 931—TO PROVIDE FOR THE ADDITION OF CERTAIN REAL PROPERTY

TO THE RESERVATION OF THE SILETZ TRIBE IN THE STATE OF OREGON. 

Need for This Legislation

The Confederated Tribes of Siletz Indians of Oregon (‘‘Siletz Tribe’’) is seeking 

Federal legislation to recognize the boundaries of the tribe’s original 1855 reservation, established by Executive order of Franklin Pierce on November 9, 1855, as ‘‘onreservation’’ in order to clarify the Secretary of Interior’s authority to take land into 

trust for the Siletz Tribe under the Interior Department’s fee-to-trust regulations at 

25 CFR Part 151. Enactment of this legislation will not create a reservation for the 

Siletz Tribe, and will not affect the jurisdiction or authority of State or local governments. The purpose of the legislation is to allow for more timely processing of the 

Siletz Tribe’s fee-to-trust applications by allowing those applications to be approved 

at the Bureau of Indian Affairs’ regional level. Defining a geographic boundary for 

a tribe that lacks a recognized exterior reservation boundary provides an historical 

reference point for the Bureau to process those applications under the Department’s 

on-reservation rather than off-reservation criteria. No land acquired in trust by the 

Siletz Tribe under the proposed legislation may be used for gaming purposes 

The Siletz Tribe’s modern situation is a product of a number of Federal policies, 

laws and history that, working together, adversely affected the tribe over the last 

175 years. Most Indian tribes have reservations with well-defined exterior reservation boundaries where the tribe owns all or a large portion of the land within that 

boundary. While land within that boundary may have transferred to non-Indian 

ownership because of Federal policies such as the Allotment Act, the reservation 

boundary remains intact for Federal purposes. The definition of ‘‘Indian country’’ 

under Federal law, which defines the outer extent of tribal territorial authority, includes all land within the boundaries of an Indian Reservation. See 18 U.S.C. 

§ 1151. While this is a criminal statute, the definition has been applied by the U.S. 

Supreme Court in civil contexts also. 

The Siletz Tribe’s 1855 original 1.1 million acre reservation was reduced over time 

by Executive order, statute, the Allotment Act, and finally, was completely extinguished by the tribe’s termination in 1954. 

When the Siletz Tribe was restored to federally recognized status in 1977 by Federal statute, 25 U.S.C. § 711 et seq., no lands were restored to the tribe although 

the act called for the future establishment of a reservation. 25 U.S.C. § 711e. Congress created the new Siletz Reservation in 1980 and added to that reservation in 

1994. Pub. L. No. 96–340, Sept. 4, 1980, 94 Stat. 1072; Pub. L. No. 103–435, Nov. 

2, 1994, 108 Stat. 4566. The Siletz Tribe’s reservation consists of approximately 50 

separate, scattered parcels of reservation land. Each parcel has its own ‘‘exterior’’ 

boundary. There is no overall reservation boundary. A map showing the Siletz 

33

Tribe’s original 1855 reservation and the tribe’s current reservation and other trust 

lands is attached as Exhibit A. 

The Indian Reorganization Act at 25 U.S.C. § 465 authorizes the Secretary of Interior to acquire land in trust for Indian tribes. This provision was enacted to reverse 

the devastating loss of lands suffered by Indian tribes between 1887 and 1934 (over 

90 million acres) and to restore a minimally adequate land base for those tribes. 

The Siletz Restoration Act applies this section to the Siletz Tribe. 25 U.S.C. 

§ 711a(a). Federal regulations implementing this section appear at 25 CFR part 151. 

These regulations distinguish between on-reservation and off-reservation trust acquisitions. Because of these Federal regulations and the Siletz Tribe’s history, any 

additional land the Siletz Tribe seeks to have placed in trust status under Federal 

law is considered to be ‘‘off-reservation’’ because the land is located outside the 

boundaries of what is recognized as the Siletz Tribe’s current reservation. 

There are no geographic limitations on the Secretary of Interior’s authority to 

take land into trust for an Indian tribe under Section 465. No regulations implementing this provision of the 1934 IRA were enacted until 1980. See 45 Federal 

Register 62036 (Sept. 18, 1980). No distinction between on and off reservation feeto-trust requests by tribes was included in the original regulations. It was not until 

passage of the Indian Gaming Regulatory Act in 1988 and the subsequent requests 

from some tribes to place off-reservation land in trust for gaming purposes that 

changes to the regulations were considered. The Department began enforcing an internal on-reservation/off-reservation fee-to-trust policy in 1991, and in 1995 added 

this distinction into the fee-to-trust regulations. See 60 Federal Register 32879 

(June 23, 1995). No consideration or discussion of the situation of terminated and 

restored tribes like the Siletz Tribe’s factual situation was included in making these 

regulatory changes. 

The current fee-to-trust regulations distinguish between on-reservation trust acquisitions (25 CFR § 151.10) and off-reservation trust acquisitions (25 CFR § 151.11). 

The requirements for a Tribe obtaining land in trust off-reservation are more restrictive, more costly and time-consuming, and require additional justification. Because of the Siletz Tribe’s unique history, all fee-to-trust requests by the tribe are 

reviewed under the off-reservation process, even close to the tribe’s current reservation lands and even within the boundaries of the tribe’s historical reservation. This 

application of Federal law and regulations discriminates against the Siletz Tribe in 

relation to treatment of other Indian tribes. 

H.R. 931 will place the Siletz Tribe on the same legal footing as all other federally-recognized Indian tribes who did not suffer through the tragedy of termination 

and the loss of their reservations. It will treat the Siletz Tribe’s fee-to-trust requests 

within its historical reservation the same as fee-to-trust requests from other tribes 

within their historical reservations. It will facilitate the gradual re-acquisition of a 

tribal land base for the Siletz Tribe so the tribe can meet the needs of its members. 

It will reduce cost, time and bureaucratic obstacles to the tribe obtaining approval 

of its land into trust requests. The legislation is consistent with the definition of onreservation as set out in the current fee-to-trust regulations at 25 CFR § 151.2(f). 

The Siletz Tribe has an ongoing critical need to acquire additional lands in trust 

to meet the needs of the tribe and its members. The tribe received a modest approximately 3,630 acres in trust as a Reservation in 1980, comprised of 37 scattered parcels. This land was primarily former BLM timber lands, and was calculated at the 

time to allow the tribe to generate revenue to provide limited services to its members and to support tribal government. The revenue generated from these parcels 

has been insufficient to meet growing tribal needs. The Reservation Act also returned a tribal cemetery and Pow-Wow grounds to the tribe. Since 1980 the tribe 

has obtained additional 804 acres of land in trust to meet some of the tribe’s needs 

for housing, health and social services, natural resources, and economic development 

including a gaming operation. Currently the tribe has a total of 63 separate trust 

properties, for a total acreage of 4,434.01 acres. Tribal needs have not been met, 

however, and the tribe has a continuing need to acquire additional lands in trust. 

This is a long-term objective of the tribe because of the tribe’s limited financial resources, which only allow it to purchase land a little at a time. 

Legislative History and Administration Position

H.R. 931 is identical to legislation introduced in the 112th Congress by Congressman Kurt Schrader of Oregon. That legislation, and its Senate companion bill, received legislative hearings in the House Subcommittee on Indian & Alaska Native 

Affairs and the Senate Committee on Indian Affairs. 

In the Senate, the Bureau of Indian Affairs objected to language giving counties 

additional authority in the on-reservation fee-to-trust process, objecting to the precedential nature of such new authority. Siletz agreed to have that language removed, 

34

which was from the House version of the bill. Both the House and Senate bills introduced in the 113th Congress responded to the Bureau’s concern on that matter. 

The Administration testified in support of the Siletz bill in July 2012. In responses to questions for the record from the Subcommittee on Indian and Alaska 

Native Affairs, the Bureau of Indian Affairs put to rest allegations against the bill 

made by the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians, and 

the Confederated Tribes of the Grand Ronde Community. The Bureau confirmed 

that the Siletz Tribe has always been the only recognized tribal governing body over 

the original 1855 Siletz Coast Reservation. 

Attached, for the record, are those responses from BIA as well as Siletz’ response 

to Grand Ronde’s criticisms of BIA’s response. 

Historical and Legal Background

Numerous bands and tribes of Indians resided aboriginally in western Oregon, 

from the crest of the Cascade Mountains to the Pacific Ocean. Early Federal Indian 

policy was to enter into treaties with Indian tribes to obtain the cession of their aboriginal lands to clear title for non-Indian settlement. A ‘‘reservation policy’’ evolved 

to place the Indians who entered into these treaties on small remnants of their aboriginal lands, but to open most of those lands for future development and settlement. In most cases each tribe that entered into a treaty was left with its own reservation somewhere within its aboriginal territory. Entering the 1850s, this Federal 

policy evolved into a new reservation policy, particularly along the west coast, to 

place as many tribes as possible on one reservation. This freed up additional land 

for settlement and simplified administration of the remaining Indians. See Charles 

F. Wilkinson, The People Are Dancing Again: A History of the Siletz Tribe (U. of 

Washington Press 2010). 

Treaties negotiated with western Oregon Indian tribes in the early 1850s by 

Anson Dart were rejected by the Senate because they did not implement this new 

policy and instead provided for individual reservations within a tribe’s historical territory. The subsequent Indian Superintendent in Oregon in the 1850s, Joel Palmer, 

was given the task of negotiating treaties with all of the tribes in western Oregon 

and finding a permanent reservation where they could all be settled. Superintendent Palmer first considered moving all the western Oregon tribes east of the 

Cascade Mountains to the Klamath Reservation, but none of the western Oregon 

tribes wanted to go there. In early 1855 he located what became the Siletz or Coast 

Reservation and communicated its suitability as the permanent reservation for all 

the western Oregon tribes to his superiors in Washington, D.C. Because of the long 

time lag in communication between the east and west coasts in the 1850s, Palmer 

provisionally set aside the Coast Reservation on his own authority on April 17, 

1855. This action was subsequently ratified by the Department of the Interior. 

There was no one method or procedure by which the tribes and bands that are 

part of the Confederated Tribes of Siletz Indians entered into treaties or came to 

the Siletz Reservation. A map showing the ancestral lands and tribes that make up 

the Siletz Tribe is included in the hearing record as Exhibit B. The Siletz Tribe has 

a legal relationship to seven ratified treaties (Treaty with the Rogue River, Sept. 

10, 1853, 10 Stat. 1018; Treaty with the Umpqua-Cow Creek Band, Sept. 19, 1853, 

10 Stat. 1027; Treaty with the Rogue River, Nov. 15, 1854, 10 Stat. 1119; Treaty 

with the Chasta, Nov. 18, 1854, 10 Stat. 1122; Treaty with the Umpqua and 

Kalapuya, Nov. 29, 1854, 10 Stat. 1125; Treaty with the Molala, Dec. 21, 1855, 12 

Stat. 981; Treaty with the Kalapuya, Jan. 22, 1855, 10 Stat. 1143), and one unratified treaty (Treaty with the Tilamooks and other confederate tribes and bands residing along the coast, Aug. 11, 1855 (‘‘Coast Treaty’’)). To complicate things further, 

there are also several additional unratified treaties negotiated in 1851 with the 

northern Oregon coastal tribes and bands, known as the Anson Dart treaties. Indians from all of these tribes and bands also ended up on the Siletz/Coast Reservation. 

In some of these treaties, such as the 1854 Rogue River Treaty and the unratified 

Coast Treaty, the signatory tribes were ‘‘confederated’’ by the Federal Government 

into one tribe. The Federal Government treated other tribes that were settled on 

the Siletz Coast Reservation as confederated with these original confederations. The 

Confederated Tribe of Siletz Indians is the federally-recognized tribe that is the 

legal and political successor to these original tribes. See United States v. Oregon,

29 F.3d 481, 485–86 (9th Cir. 1994) (Yakama Nation comprised of the Indians who 

moved to the reservation under the Yakama Treaty; Nez Perce Tribe comprised of 

Nez Perce Bands who signed Nez Perce Treaty and moved to diminished Nez Perce 

Reservation). 

Movement of the tribes, bands and Indians to the Siletz Reservation was also not 

clean or uniform. Some tribes moved in several waves to the Siletz Reservation, at 

35

different times. In some cases only parts of the tribe, smaller groups or individual 

families ended up on the Reservation. In other cases individuals or small groups 

who were moved to the Siletz Reservation left the Reservation and returned to their 

aboriginal areas; other individuals hid and were never moved. Some of the individuals who left the Siletz Reservation and returned to their aboriginal areas were 

rounded up and returned to the Siletz Reservation. For example, member of the 

Coos and Lower Umpqua Tribes who left the Siletz Reservation and returned to 

their aboriginal area were forcibly returned to the Reservation in round-ups conducted by the Interior Department with military assistance. 

In all of these cases and under all of these treaties, both ratified and unratified, 

the tribes and bands in question were moved to the Siletz Reservation and became 

part of the Confederated Tribes of Siletz Indians. This early history of the Siletz 

Tribe and Siletz Reservation is set out in various Federal court decisions, including 

Rogue River Tribe v. United States, 64 F.Supp. 339, 341 (Ct.Cl. 1946); Alcea Band 

of Tillamooks v. United States, 59 F.Supp. 934, 942 (Ct.Cl. 1945); Coos, Lower Umpqua, and Siuslaw Indian Tribes v. United States, 87 Ct. Cl. 143 (1938); and 

Tillamook Tribe of Indians v. United States, 4 Ind. Cl. Comm’n 31–65 (1955). Copies 

of these decisions are included in the record as Exhibit C. The Siletz Tribe also submits some of the Interior Department and Oregon Indian Agency correspondence 

from this period (1855–1875), documenting the settlement of various tribes and 

bands on the Siletz Reservation pursuant to these treaties, as Exhibit D. Historical 

summaries chronicling additional Federal policy toward the Siletz Reservation are 

attached as Exhibit E. The settlement of various tribes on the Siletz Reservation 

is also documented in various academic publications such as a report prepared by 

Historian Dr. Stephen Dow Beckham. See ‘‘The Hatch Tract: A Traditional Siuslaw 

Village Within the Siletz Reservation, 1855–1875,’’ prepared by Dr. Stephen Dow 

Beckham for the Confederated Tribes of Coos, Lower Umpqua and Siuslaw, Dec. 4, 

2000, pp. 12–14 (‘‘On July 20, 1862, Linus Brooks, Sub-Agent, confirmed that the 

removal of the Coos, Lower Umpqua, and Siuslaw Indians onto the Siletz Reservation was complete,’’ and ‘‘On July 21, 1864, Sub-Agent George W. Collins confirmed 

the presence of the tribes on the Siletz Reservation’’.). 

The Confederated Tribes of Siletz Indians was recognized as the governing body 

and tribe representing all of the tribes and bands settled on the Siletz Reservation 

as early as 1859. See, e.g. Indian Traders License issued by the Siletz Indian Agent 

on June 16, 1859, to trade with ‘‘The Confederated Tribes of Indians . . . within 

the boundary of the Siletz Indian agency district Coast Reservation.’’ (Copy attached 

as Exhibit E); Tillamook Tribe of Indians, supra, 4 Ind. Cl. Comm’n at 31 (‘‘Confederated Tribes of Siletz Indians, . . . a duly confederated and organized group of Indians having a tribal organization and recognized by the Secretary of the Interior 

of the United States’’ is the only entity with standing to prosecute claims against 

the United States involving the Siletz Reservation). Many other instances of Federal 

recognition of the Confederated Siletz Tribe are included in the historical summaries attached as Exhibit E. It has consistently been recognized by the Interior 

Department as the only tribe representing the original Siletz or Coast Reservation 

since that time. As such it is the legal and political successor to all of the tribes 

and bands of Indians settled on or represented on the Siletz Reservation. 

This legal principle was established and has been repeatedly confirmed in the 

U.S. v. Washington Puget Sound off-reservation treaty fishing rights litigation. See, 

e.g., United States v. Washington, 593 F.3d 790, 800 at n.12 (9th Cir. 2010) 

(‘‘Samish’’), citing to U.S. v. Washington, 384 F.Supp. 312, 360 (W.D. Wash. 1974) 

(Lummi) and to U.S. v. Washington, 459 F.Supp. 1020, 1039 (W.D. Wash. 1978) 

(Swinomish) (Lummi and Swinomish successors in interest to tribes and bands settled on their reservations under Treaty of Point Elliott; both tribes successors in interest to the Samish Indian Tribe); Evans v. Salazar, 604 F.3d 1120, 1122 n. 3 (9th 

Cir. 2010), citing U.S. v. Washington, 459 F.Supp. 1020, 1039 (W.D. Wash. 1978) 

(Tulalip Tribes recognized governing body and successor to tribes and bands settled 

on the Tulalip Reservation under the Treaty of Point Elliott); U.S. v. Washington,

520 F.2d 676, 692 (9th Cir. 1975) (Muckleshoot Tribe, which did not exist at the 

time of the Treaty of Point Elliott and Treaty of Medicine Creek, recognized as a 

tribe by the United States and is a successor in interest to its constituent tribes 

which were settled on the Muckleshoot Reservation under the two treaties). 

Two other legal principles, confirmed by Ninth Circuit Court of Appeals decisions, 

also confirm the Confederated Tribes of Siletz Indians as the only federally-recognized Indian tribe representing the tribes and bands who were settled on the Siletz 

Reservation, and as the only Indian tribe with a legal interest in and title to the 

original 1855 Siletz or Coast Reservation. The first legal principle involves groups 

or bands of Indians who either refused or did not move to the reservation designated for them under a treaty or other Federal action, or who subsequently left 

36

that reservation or refused to move to a reconfigured reservation. In U.S. v. Oregon,

29 F.3d 481, 484–85 (9th Cir. 1994), the Ninth Circuit rejected the claim of the 

Colville Confederated Tribes to have treaty and successorship rights under the 

Yakama and Nez Perce Treaties of 1855 because bands of the tribes that had signed 

those treaties had refused to move to the reservations established under those treaties, or had subsequently left those reservations, and instead had ended up settling 

on the Colville Reservation. The Ninth Circuit concluded that those bands, by refusing to move to the treaty reservations or subsequently leaving those reservations, 

had abandoned their right to treaty status or successorship of the original tribes. 

Like the situation of Lummi and Swinomish, whose reservations were set aside 

for all the Indians who signed the Point Elliott Treaty, both the Siletz and Grand 

Ronde Reservations were for example expressly set aside for settlement of the Willamette Valley Tribes, and members of those tribes settled on both the Siletz and 

Grand Ronde Reservations. Under the Ninth Circuit’s decisions in U.S. v. Washington, both the Siletz and Grand Ronde Tribes are successors to the historical Willamette Valley Tribes and the three ratified treaties signed by those tribes. 

This legal principle applies to the claims of the modern day Confederated Tribes 

of Coos, Lower Umpqua and Siuslaw Indians (comprised of individual Indians from 

those tribes who either refused to move to the Siletz Reservation or who subsequently left the Siletz Reservation and moved back to the Coos Bay area) to have 

legal claim to the original Siletz Reservation. It also applies to the claim of the Confederated Tribes of the Grand Ronde Community of Oregon to be a successor to the 

Rogue River Tribe (a band or small group of Rogue River Indians refused in 1857 

to move to the Siletz Reservation, designated as the permanent reservation for that 

tribe, and stayed instead on the Grand Ronde Reservation; Federal officials confirmed in correspondence that the Rogue River Tribe moved to the Siletz Reservation in 1857), and to have a claim through that tribe to the Siletz Reservation. 

The second additional legal principle that applies to the Siletz Tribe’s factual situation involves where one tribe is not originally settled on a reservation under a treaty, but individual members of that ‘‘unaffiliated’’ tribe end up on the reservation of 

another tribe, either by obtaining allotments on that reservation or for other reasons. This was the situation in United States v. Suquamish Indian Tribe, 901 F.2d 

772, 777 (9th Cir. 1990), where the Ninth Circuit rejected the Suquamish Tribe’s 

claim to be the successor to the Duwamish Tribe on the grounds that ‘‘individual 

Duwamish had moved to and settled at’’ the Suquamish Reservation, obtaining allotments there. The court found that no group or band of Duwamish moved there. 

Id.2 This test was clarified in United States v. Oregon, supra, where the Ninth Circuit concluded that for one tribe to be able to claim successorship to another tribe, 

the first tribe would have to show ‘‘a cohesive communal decision by the Duwamish 

to unite with the Suqamish,’’ otherwise the Suquamish ‘‘could not successfully claim 

that it was a ‘political successor’ to the treaty time Duwamish Tribe.’’ 29 F.3d at 

484. Movement and settlement of individual Indians does not result in 

successorship, under settled principles of law. 

This legal principle applies to the claims of the Grand Ronde Tribe that it has 

an interest in the original Siletz Reservation through its asserted successorship to 

the Nehalum Tribe, for example. Case law to which the Grand Ronde Tribe was a 

party and is therefore bound concluded that the Nehalum Tribe had moved as a 

tribe to the Siletz Coast Reservation, and that the Siletz Tribe is the successor the 

Nehalum Tribe: ‘‘Plaintiffs Chinook, Clatsop and the Ne-ha-lum tribes were placed 

on the Coast Reservation.’’ Alcea Band of Tillamooks, supra, 59 F.Supp. at 954. 

Grand Ronde claims successorship to the Nehalum Tribe only because a few individual Nehalum Indians later moved to and settled on the Grand Ronde Reservation. Under established Federal precedent, the fact that some individual Nehalum 

Indians moved to the Grand Ronde Reservation did not make the Grand Ronde 

Tribe a successor to the Nehalum Tribe. Grand Ronde claims that the Nehalums 

and others were counted under the Grand Ronde Agency’s census and therefore 

must have resided on the Grand Ronde Reservation, but the historical summary included as Attachment E shows conclusively that these Indians actually resided on 

the Siletz Reservation along the coast, and that the Grand Ronde Indian Agency improperly attempted to assert jurisdiction over them, an assertion that was expressly 

rejected, several times, by the Commissioner of Indian Affairs. 

The Court in U.S. v. Oregon contrasted the factual situation of the Suquamish 

and Duwamish Tribes with that of the Muckleshoot and Tulalip Tribes, who were 

not tribes at the time of the treaty but became tribes recognized by the Federal Government comprised of small neighboring bands of Indians who signed the treaties 

and moved as bands to the designated reservation. 901 F.2d at 776. Those bands 

who resided together on the same reservation ‘‘became known as the Tulalip and 

Muckleshoot Indians,’’ Id., and were recognized by the Federal Government as such. 

37

The Siletz Reservation has been referred to by various names in its history, but 

has been known often as the Siletz or Siletz Coast Reservation since 1857. See Attachment E. The Reservation was originally referred to as the Coast Reservation before it was reserved by Oregon Indian Agent Joel Palmer because it was located on 

the Oregon Coast, because it was set aside for the ‘‘Coast, Umpqua, and Willamette 

Tribes of Indians in Oregon Territory,’’ and because the unratified 1855 Treaty was 

made between the United States and the ‘‘chiefs and headmen of the confederate 

tribes and bands of Indians residing along the coast. ’’ After official establishment 

by Executive order on November 9, 1855, it was referred to variously as the Siletz, 

Siletz or Coast, or Siletz/Coast Reservation. Starting in 1857, use of the term Siletz 

Reservation became common, see, e.g., letter dated July 20, 1857 (Annual Report of 

Grand Ronde Indian Agency) (‘‘Early in the month of May the greater portion of the 

Rogue River and all of the Shasta Indians were removed, with their own consent, 

to the Siletz Coast Reservation . . . In consequence of the removal of the majority 

of these tribes to the Siletz Reservation’’, and Congress formally referred to the reservation as the Siletz Reservation in legislation enacted in 1868 and 1875. Act of 

July 27, 1868, 15 Stat. 198, 219 (‘‘For Indians upon the Siletz Reservation . . . to 

compensate them for losses sustained by reason of executive proclamation taking 

from them that portion of their reservation called Yaquina Bay’’); act of March 3, 

1875, 18 Stat. 420, 446 (‘‘Secretary of the Interior . . . is authorized to remove all 

bands of Indians now located upon the Alsea and Siletz Reservation, set apart for 

them by Executive order dated November 9, 1855’’). A summary of all of these references is included as Exhibit E, and copies of these Federal statutes are attached 

as Exhibit F. 

The Siletz Reservation was established by Executive order on November 9, 1855 

as a permanent homeland for all the tribes and bands of Indians in western Oregon, 

who were to be confederated together and settled upon it, and make the remaining 

ceded land available for settlement. The original Siletz Reservation stretched for 

over 100 miles along the central Oregon Coast, from the ocean to the western 

boundary of the 8th Range, Willamette Meridian, around 1.1 million acres. A copy 

of the original map of this reservation made sometime between 1857 and 1865 is 

attached as Exhibit G. Treaty tribes such as the Rogue Rivers, Shastas and Umpquas were moved to the Siletz Reservation by May 1857 in fulfillment of the terms 

of their treaties to settle them on a permanent treaty reservation. The Siletz Reservation, under well-established case law, became a formal treaty reservation at 

that time. The Siletz Reservation was then reduced over the coming years by various Federal actions—Executive order in 1865, Federal statute in 1875, and an 

agreement and legislation implementing allotment and surplusing of the remaining 

reservation in 1892. A map of the original Siletz Reservation showing the various 

reductions of the Siletz Reservation is attached as Exhibit H. A map showing the 

original Siletz Reservation in context to the State of Oregon and to modern Oregon 

cities is attached as Exhibit I. 

Various Court of Claims and Indian Claims Commission cases have addressed 

whether the tribes that were located on the Siletz Reservation were entitled to compensation for the taking of their aboriginal lands, or for the various diminishments 

of the Siletz Reservation. These cases—Rogue River, Alcea Band of Tillamooks, 

Coos, Lower Umpqua and Siuslaw Indian Tribes, and Tillamook Tribe of Indians,

are cited above. These cases document the connection of the Siletz Tribe to the original Siletz Reservation. As such, they also show that the original Siletz Reservation 

meets the definition of on-reservation as set out in the fee-to-trust regulations at 

25 CFR § 151.2(f): ‘‘[W]here there has been a final judicial determination that a reservation has been disestablished or diminished, Indian reservation means that area 

of land constituting the former reservation of the tribe.’’ See Citizen Band Potawatomi Indians v. Collier, 17 F.3d 1325 (10th Cir. 1998)(processing fee-to-trust request within former reservation of Potawatomi Tribe). Enacting H.R. 6141 will allow 

the Siletz Tribe to request fee-to-trust transfers on the same basis as other Indian 

tribes within their original reservations. 

Response to Specific Issues:

Some questions have been raised before this hearing about specific aspects of the 

proposed legislation. I want to address some of those issues here, and can respond 

to other issues during my oral testimony. 

Question. Does this bill make the original Siletz Reservation into a reservation for 

the Siletz Tribe, or create tribal jurisdiction or authority over the original Siletz 

Reservation area? 

Answer. No. All H.R. 931 does is to designate a geographic area within which the 

Siletz Tribe’s fee-to-trust requests will be processed under the BIA’s on-reservation 

rather than off-reservation fee-to-trust criteria. The jurisdictional status of indiVerDate 0ct 09 2002 15:12 May 16, 2014 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6621 X:\03INDI~1\03MY16~1\5-16-1~1\80981.TXT MARK
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vidual fee-to-trust parcels changes once those parcels go into trust status, but that 

happens whether or not this bill passes, and whether or not the on-reservation or 

off-reservation criteria are used. The existing jurisdictional status of the original 

Siletz Coast Reservation is not affected by this legislation. This issue was addressed 

by the Federal courts in Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994, 1013 

(8th Cir. 2010) (‘‘While it is true that the original 1858 [reservation] boundaries are 

no longer markers dividing jurisdiction between the tribe and the State, that does 

not mean they have lost their historical relevance for the Secretary’s discretionary 

acts [of taking land into trust pursuant to 25 U.S.C. § 465]).’’ Under H.R. 6141, the 

original 1855 Siletz Reservation will become an historical reference point for the 

BIA in deciding whether to process a Siletz fee-to-trust application as on-reservation 

or off-reservation under the fee-to-trust regulations at 25 CFR part 151. The bill 

does nothing more. 

Question. Does the Siletz Restoration Act limit the Siletz Tribe to taking land into 

trust only within Lincoln County? 

Answer. No. The original Siletz Reservation extends into six current Oregon counties, although the heart of the original Siletz Reservation became Lincoln County 

when that portion of the reservation was removed by Congress in 1894. The counties within which the original Siletz Reservation is located are shown on the map 

attached as Exhibit A. As you can see, two of the counties have barely any land 

involved. Some parties have asserted that Federal law—the Siletz Restoration Act—

limits the Siletz Tribe to taking land into trust only within Lincoln County. The section of the Restoration Act in question, at 25 U.S.C. § 711e(d), is addressed only to 

the original reservation plan called for by the Restoration Act. It limits any land 

designated under the reservation plan to Lincoln County. This plan was finalized 

in 1979. 

The question of whether this provision of the Siletz Restoration Act, 25 U.S.C. 

§ 711e(d), limits the BIA permanently from taking land in trust for the Siletz Tribe 

only to Lincoln County was addressed immediately after passage of the Siletz Restoration Act by the Office of the Solicitor, in 1978 and 1979. Those opinions concluded that the statutory restriction at § 711e(d) applied only to the original Siletz 

Reservation Plan, and did not limit the authority of the Secretary from taking land 

in trust for the Siletz Tribe elsewhere. This conclusion was reached in part because 

the Siletz Restoration Act expressly makes 25 U.S.C. § 465—section 5 of the IRA—

applicable to the Siletz Tribe, without restriction. This is not true of any other restored tribe in Oregon. Copies of the two Solicitor Opinions reaching this conclusion 

are attached as Exhibit J. In its response to questions from the 2012 hearing on 

this legislation, supra, the BIA reaffirmed its position on this issue. 

The Siletz Tribe has acquired land in trust outside of Lincoln County since restoration. For example, the tribe has a 20-acre parcel of land in trust in Salem, Marion County, Oregon, within the tribe’s historical territory. 

Question. Will H.R. 6141 allow the Siletz Tribe to acquire land in trust and use 

that land for gaming under the Indian Gaming Regulatory Act? 

Answer. No. There is an express prohibition in H.R. 6141 on using land acquired 

in trust under the bill for gaming. The Siletz Tribe already has a successful gaming 

operation at Chinook Winds Casino Resort on its current reservation. The tribe does 

not need to acquire land in trust for a gaming operation within its original reservation boundaries. 

Mr. YOUNG. Thank you, Delores. 

Now, last but not least, Mr. Byron Mallott, a good friend, will 

speak on H.R. 740 and H.R. 1306. 

STATEMENT OF BYRON MALLOTT, MEMBER, BOARD OF 

DIRECTORS, SEALASKA CORPORATION 

ACCOMPANIED BY: JAELEEN KOOKESH ARAUJO, GENERAL COUNSEL 

FOR SEALASKA CORPORATION 

Mr. MALLOTT. Thank you, Mr. Chairman, and Ranking Member 

Hanabusa. I would just mention very quickly that I have known 

Congressman Young for nearly 50 years now, and he still butchers 

my name. 

[Laughter.] 

Mr. YOUNG. Good thing you are not named LoBiondo. It took me 

10 years to pronounce that name. 

39

Mr. MALLOTT. I would also like to mention, members of the Committee, if I could, that I am very proud to have Jaeleen Kookesh 

Araujo sitting next to me. If I were to introduce her myself, I would 

call her ‘‘Jaeleen Kookesh,’’ which was her maiden name. 

I had the honor of speaking at her high school graduation in the 

small village school of Angoon, and it makes me so incredibly proud 

to have her sitting next to me as General Counsel during this hearing. She will be available to answer any questions that I am unable 

to, which will likely be most. 

Very quickly, Mr. Chairman, in terms of time, when the Alaska 

Native Claims Settlement Act first began its germination, it was a 

time in Alaska when Prudhoe Bay in the late 1960s had just been 

discovered, the largest oil discovery in North American history, and 

one of the very largest in the world, the need was to build a pipeline from the North Slope to Tidewater, in order to move that oil. 

It was a time during which Alaska had been a State for less than 

a decade and was very quickly acting to select 103 million acres 

that it had the right to select from public lands in Alaska under 

the Alaska Statehood Act. 

It was a time in the Tongass Forest when there were two very 

large public pulp mill contracts, two very large pulp mills just having been built, one in Ketchikan and one in Sitka, harvesting hundreds of millions of board feet of timber and generating an economy 

in an area of our State where previously there had been none. 

The military had been gone for less than a decade, was just beginning to rebuild after the Second World War. It was in this maelstrom that the Alaska Native Claims Settlement Act emerged. 

In many ways, the Alaskan Natives collectively were not anywhere near in charge of the events that would shape their lives, 

as some have characterized before this Committee in the various 

hearings on this legislation, which by the way, Mr. Chairman, I 

think as you have already mentioned, has been before this Committee for some 6 years, and notwithstanding your incredible efforts to try to get this bill passed by the full Congress. 

H.R. 740 will allow Sealaska to select lands outside of the original withdrawal’s established under ANCSA in Southeast, which 

were very limited withdrawal areas, the consequence of the very 

large pulp mill contracts that I have already mentioned. 

We will, if allowed to select lands as identified in H.R. 740, out 

of our original withdrawal areas, be impacting far less old growth 

acreage than we would otherwise be if we stayed within our withdrawal areas. 

It would give Sealaska greater flexibility to work with the National Forest Service in bringing about a transition to second 

growth timber, which will be the long term enterprise on forest 

lands in the Tongass National Forest. It will allow us some flexibility in selecting sacred sites which are so important to us as Alaska’s Native peoples, and the first inhabitants of the Tongass National Forest, which we believe passionately are our and known to 

be our homelands. 

H.R. 740 will allow us to in a very modest way begin identifying 

new uses for very small parcels of land within the Tongass. 

It will allow the Native Corporation, the Native peoples of Southeast, where many of our shareholders still live and where our origiVerDate 0ct 09 2002 15:12 May 16, 2014 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 X:\03INDI~1\03MY16~1\5-16-1~1\80981.TXT MARK
40

nal villagers still have our people, unbroken since as far back in 

time as we know, and who still live in those villages, the opportunity to create on our lands and in cooperation with the U.S. 

Forest Service, the State of Alaska and others, a lifestyle, a society, 

an economic opportunity, that we obviously and all these institutions believe are so important to the future of the Tongass National 

Forest. 

Because we have had at least 6 years of congressional activity on 

this bill, we have a companion bill which would allow very modest 

selections of economically harvestable timber closely adjacent to 

current Sealaska lands, although out of the withdrawal areas, and 

able to be accessed on a transition basis in the event that the Congress is once again unable to act on the overall settlement. 

Directly responding to a question, a general question, earlier by 

Congresswoman Hanabusa, it is different than it was at the hearing several years ago. I do not think there has been a week or at 

least a month gone by where there have not been very meaningful 

meetings in Washington, D.C., in Alaska, having to do with being 

responsive to the concerns, with the suggestions, with the desires 

of communities, agencies, institutions, local governments, in order 

to try to make this bill more responsive, and ultimately a bill that 

as many folks as possible within our region and elsewhere can support. 

We believe that we are very, very close. I would like to close by 

saying that I was there during those land claims days. I was a very 

young man. I remember knowing that there were far greater forces 

at play than we could in any way meaningfully affect, which I have 

outlined to you, having to do with the nation, having to do with 

kick starting a brand new economy in a brand new State, and the 

Native community trying to achieve justice and equity and retain 

some of our homelands in our own ownership, and acquiring tools 

that would allow us to be both part of the economic and ultimately 

the societal development of our State. 

But ultimately, there were far greater forces at play, and I think 

Congress recognized that when it passed the Alaska Native Claims 

Settlement Act, because it has been very gracious and open, one of 

the most complex laws ever passed by the United States, to allow 

changes to that law to also be passed into law, and some of those 

changes, as you know, Mr. Chairman, have been very, very substantive indeed. 

Thank you very much for the opportunity to appear before you. 

[The prepared statement of Mr. Mallott follows:]

PREPARED STATEMENT OF BYRON MALLOTT, MEMBER, BOARD OF DIRECTORS, 

SEALASKA CORPORATION, ON H.R. 740 AND H.R. 1306

Chairman Young and members of the Subcommittee: 

Thank you for the opportunity to submit testimony on behalf of Sealaska, the regional Alaska Native Corporation for southeast Alaska, regarding H.R. 740, the 

‘‘Southeast Alaska Native Land Entitlement Finalization and Jobs Protection Act,’’ 

a bill that we refer to as Haa Aanı ́. ‘‘Haa Aanı ́’’ is the Tlingit way of referring to 

our ancestral and traditional homeland and the foundation of our history and culture. We also appreciate the opportunity to testify on H.R. 1306, the Southeast Alaska Native Land Conveyance Act, which we call our ‘‘Bridge timber’’ bill to address 

conveyance of a small portion of the lands included in H.R. 740. 

My name is Byron Mallott, and I am a Director of Sealaska Corporation, as well 

as a former President and CEO of Sealaska. I am from Yakutat, an Alaska Native 

41

village, and I am Shaa-dei-ha-ni (Clan Leader) of the Kwaashk’i Kwa ́an. My Tlingit 

name is K’oo deel taa.a.

Most of our testimony relates to H.R. 740, but H.R. 1306 is very much related. 

H.R. 1306 would transfer a small subset of the land in H.R. 740 and does not detract from the purpose of H.R. 740. H.R. 1306 provides an interim solution to preserve jobs vital to the region’s delicate economy if Congress does not act on 

H.R. 740 this year. 

Background

Sealaska is one of 12 Native Regional Corporations established pursuant to the 

Alaska Native Claims Settlement Act (‘‘ANCSA’’) of 1971. Our shareholders are descendants of the original Native inhabitants of southeast Alaska—the Tlingit, Haida 

and Tsimshian people. ANCSA authorized a land settlement for the Natives of 

southeast Alaska. Today, Sealaska seeks legislation that will define the location of 

the last 70,000 acres of land we will receive under ANCSA. Our people will own 

these lands in perpetuity. The land will support our villages and will help sustain 

our people and our culture. 

H.R. 740 would convey just 70,000 acres in the southeast Alaska region, a region 

with almost 23 million acres of land; 85 percent of the region is already in some 

form of conservation, wilderness or other protected status. Putting the acreage in 

perspective, Sealaska’s remaining land entitlement represents about 1⁄3 of 1 percent 

of the total land mass in southeast Alaska. 

This legislation also represents a significant opportunity for the public, this Congress, the Obama Administration, the Forest Service, communities, environmental 

groups and others to get it right in the Tongass. H.R. 740 protects ecologically sensitive areas, sustains jobs and communities, and returns important cultural lands 

to southeast Alaska’s Native people. 

This legislation does not give Sealaska one acre of land in addition to that which 

was originally promised by Congress under ANCSA. Sealaska has worked closely 

with the timber industry, conservation organizations, tribes and Native institutions, 

local communities, the State of Alaska, and Federal land management agencies to 

craft legislation that provides the best possible result—the most balanced solution—

for the people, communities and environment of southeast Alaska. 

For you, Members of Congress and staff, who must consider this legislation, one 

thing should be clear by now: Every acre of southeast Alaska is precious to someone. 

And given the vast array of interests in southeast Alaska, there is simply no way 

to achieve absolute consensus on where and how Sealaska should select its remaining lands. We believe—and we hope you will agree—that this legislation offers a 

balanced solution as a result of our congressional delegation’s engagement with all 

regional stakeholders. 

Can Sealaska Select its Remaining Land Under Current Law

Under ANCSA, as amended, Sealaska is required to select land from within 10 

‘‘withdrawal boxes’’. Opponents of the legislation say that Sealaska asked to select 

land from within the 10 withdrawal boxes in 1976, and today Sealaska should be 

forced to select the remaining 70,000 acres to which it is entitled under current law. 

Let’s set the record straight. ANCSA authorized the distribution of approximately $1 billion and 44,000,000 

acres of land to Alaska Natives and provided for the establishment of 12 Regional 

Native Corporations and more than 200 Village Corporations to receive and manage 

the funds and land to meet the cultural, social, and economic needs of Native shareholders. 

Under section 12 of ANCSA, each Regional Corporation, except Sealaska, was authorized to receive a share of land based on the proportion that the number of Alaska Native shareholders residing in the region of the Regional Corporation bore to 

the total number of Alaska Native shareholders, or the relative size of the area to 

which the Regional Corporation had an aboriginal land claim bore to the size of the 

area to which all Regional Corporations had aboriginal land claims. 

Sealaska received its land only under section 14(h) of ANCSA. Sealaska did not

receive land in proportion to the number of Native shareholders or in proportion to 

the size of the area to which Sealaska had an aboriginal land claim because, in part, 

in 1968, minimal compensation was paid to the Tlingit and Haida Indians pursuant 

to a U.S. Court of Claims decision, which held compensation was due for the taking 

of the 17 million acre Tongass National Forest and the 3.3 million acre Glacier Bay 

National Park. The 1968 settlement provided by the Court of Claims did not compensate the Tlingit and Haida for 2,628,207 acres of land in southeast Alaska also 

subject to aboriginal title. The court also determined the value of the lost Indian 

42

fishing rights at $8,388,315, but did not provide compensation for those rights. It’s 

also important to understand that the U.S. Court of Claims did not compensate at 

anything close to fair market value. The settlement worked out to just 43.8 cents 

per acre. 

The 1968 settlement also should be viewed in context with the universal settlement reached by Congress, just 3 years later, which allowed for the return of 44 

million acres and almost $1 billion to Alaska’s Native people. Land was always the 

ultimate goal. With a population that represented more than 20 percent of Alaska’s 

Native population in 1971, southeast Alaska Natives ultimately would receive title 

to just 1 percent of land returned to Alaska Natives under ANCSA, ostensibly because the taking of Native lands in southeast Alaska had been dealt with by the 

Court of Claims. The Tlingit and Haida people thus led the fight for Native land 

claims, and lost a majority of our land as a consequence.

As documented in ‘‘A New Frontier: Managing the National Forests in Alaska, 

1970–1995’’, discussed below, the Forest Service opposed the recognition of traditional Indian use and aboriginal title in the Tongass National Forest for decades 

prior to the passage of ANCSA. As late as 1954, the Forest Service formally recommended that all Indian claims to the Tongass be extinguished because of continuing uncertainty affecting the timber industry in southeast Alaska. The logging 

of ‘‘public’’ lands proceeded over the objection of Alaska Natives, with the 1947 

Tongass Timber Act explicitly authorizing the Secretary of Agriculture to sell ‘‘timber growing on any vacant, unappropriated, and unpatented lands within the exterior boundaries of the Tongass National Forest in Alaska, notwithstanding any 

claim of possessory rights.’’

In hearings leading to the passage of ANCSA, the Forest Service opposed most 

selections near Native villages because the selections would conflict with existing 

public timber contracts. The Forest Service publicly acknowledged their interest in 

limiting the extent of Native land selections to protect two 50-year timber supply 

contracts between the Forest Service and Ketchikan Pulp Company and Alaska 

Lumber and Pulp Company, agreed to in 1951 and 1957.

In 1969, in a letter submitted for the record to the House Committee on Interior 

and Insular Affairs, U.S. Forest Service Associate Chief Arthur Greeley made the 

following argument opposing the conveyance of land to Native people in the Tongass 

for the specific purpose of supporting economic development in Native villages:

* * * Such [land] grants would alter the management objectives of valuable 

commercial forest lands now committed to the growing pulp industry. Although provision might be made so that individual [pulp industry] contracts 

can be adjusted to meet specific contract requirements, these lands would 

be removed from the National Forests. They would thus be removed from 

the larger whole that attracted the pulp industry to Alaska. Removing 

these lands from long-term National Forest management would serve to dilute the base on which this industry has been established.

Alaska Native Land Claims, Part I: Hearing before the H. Comm. on Interior and 

Insular Affairs, 91st Cong. 333 (1969) (statement of Arthur W. Greeley, Associate 

Chief of the Forest Service, U.S. Department of Agriculture) (emphasis added). 

Sealaska ultimately would be authorized to recover about 365,000 acres of land 

under ANCSA. However, under the terms of ANCSA, and because the homeland of 

the Tlingit, Haida and Tsimshian people had been reserved by the U.S. Government 

as a national forest, the Secretary of the Interior was not able to withdraw land 

in the Tongass for selection by and conveyance to Sealaska. Only the Village Corporations were permitted to select land near the villages, and each Village Corporation in southeastern Alaska was limited to just one township of land. The only lands 

available for selection by Sealaska in 1971 were slated to become part of the 

Wrangell-St. Elias National Park or consisted essentially of mountain tops. 

Faced with strong opposition from the U.S. Forest Service to Native land ownership in the Tongass, Sealaska had no choice but to request that Congress amend 

ANCSA to permit Sealaska to select lands near its villages. Sealaska made this request with the understanding, based on Bureau of Land Management (BLM) estimates, that its entitlement would be just 200,000 acres and that land available near 

the villages would be sufficient for Sealaska selections. See Amendments to Alaska 

Native Claims Settlement Act, Part I: Hearing before the S. Comm. on Interior and 

Insular Affairs, 94th Cong. 184 (1975) (statement of John Borbridge, President, 

Sealaska Corporation). 

Congress concurred, amending ANCSA in 1976 to allow Sealaska to make its selections from within some of the 10 withdrawal boxes established under ANCSA for 

the 10 southeast Native villages recognized under that act. Today, however, we 

43

know that Sealaska’s entitlement under ANCSA is approximately 365,000 acres, not 

the 200,000 acres BLM had originally estimated. Sealaska has now received just 

over 290,000 of the acres to which it is entitled from inside the withdrawals authorized by Congress. The remaining selections, as discussed throughout this testimony, 

are not appropriate for development, and would require Sealaska to select community municipal watersheds, and from areas with exceptional fisheries values. 

Sealaska agreed to select land from within the withdrawal boxes because, in 1976, 

we had no other place to go. With two large pulp mills holding contracts to cut timber throughout the Tongass at the time, and the Forest Service favoring the timber 

industry over Native land claims, the political reality was such that Sealaska had 

no true ability to ask for a fair settlement. Did Sealaska ask to select land from 

within the withdrawal boxes? Yes. But the suggestion that we, Alaska’s Native people, invited our own exclusion from our own Native homeland is an idea that any 

witness to our history should find both reprehensible and nonsensical. For us, it was 

a choice between something limited, or nothing at all. It was hardly a choice. 

H.R. 740 addresses problems associated with the unique treatment of Sealaska 

under ANCSA and the unintended public policy consequences of forcing Sealaska to 

select its remaining land entitlement from within the existing ANCSA withdrawal 

boxes. The legislation presents to Congress a legislative package that will result in 

public policy benefits on many levels. 

Observers unfamiliar with ANCSA sometimes suggest that the Sealaska legislation might somehow create a negative ‘‘precedent’’ with respect to Alaska Native 

land claims. This seems odd in the context of the history of the Tongass and its impact on the Southeast settlement. Clearly, there were different circumstances in 

Southeast Alaska that resulted in disparate treatment that must be rectified. Congress has, on multiple occasions, deemed it appropriate to amend ANCSA to address 

in an equitable manner issues that were not anticipated by Congress when ANCSA 

passed. Congress continues to amend Federal law to include more protected conservation acreage without debate about whether or not it is a negative precedent. 

Sealaska’s Land Settlement in the Context of Southeast Alaska’s History

Two documents attached to this written testimony present an historical perspective on the long struggle to return lands in the Tongass to Native people: (1) the 

draft document funded by the Forest Service and authored by Dr. Charles W. 

Smythe and others, ‘‘A New Frontier: Managing the National Forests in Alaska, 

1970–1995’’ (1995) (‘‘A New Frontier’’); and (2) a paper by Walter R. Echo-Hawk, 

‘‘A Context for Setting Modern Congressional Indian Policy in Native Southeast 

Alaska (‘‘Indian Policy in Southeast Alaska’’). 

The findings and observations summarized below are to be attributed to the work 

of Dr. Smythe and Mr. Echo-Hawk. For the sake of brevity, we have summarized 

or paraphrased these findings and observations. 

Dr. Smythe’s research, compiled in ‘‘A New Frontier’’, found, among other things:

• By the time the Tongass National Forest was created in 1908, the Tlingit and 

Haida Indians had been marginalized. As white settlers and commercial interests moved into the Alaska territory, they utilized the resources as they found 

them, often taking over key areas for cannery sites, fish traps, logging, and 

mining. 

• The Act of 1884, which created civil government in the Alaska territory, also 

extended the first land laws to the region, and in combination with legislation 

in 1903, settlers were given the ability to claim exclusively areas for canneries, 

mining claims, townsites, and homesteads, and to obtain legal title to such 

tracts. Since the Indians were not recognized as citizens, they did not have corresponding rights (to hold title to land, to vote, etc.) to protect their interests. 

• For decades prior to the passage of ANCSA, the Forest Service opposed the recognition of traditional Indian use and aboriginal title in the Tongass National 

Forest. As late as 1954, the Forest Service formally recommended that all Indian claims to the Tongass be extinguished because of continuing uncertainty 

affecting the timber industry in southeast Alaska. 

• The policy of the Roosevelt Administration was to recognize aboriginal rights 

to land and fisheries in Alaska. Following hearings on the aboriginal claims related to the protection of fisheries in the communities of Hydaburg, Klawock 

and Kake, Secretary of the Interior Harold Ickes established an amount of land 

to be set aside for village reservations. This was troubling to the Forest Service. 

The Department of Agriculture supported the efforts of the U.S. Senate to substantially repeal the Interior Secretary’s authority to establish the proposed reservations in southeast Alaska.

44

Walter Echo Hawk’s paper, ‘‘Indian Policy in Southeast Alaska’’, observes, in part:

• The creation of the Tongass National Forest was done unilaterally, more than 

likely unbeknownst to the Indian inhabitants. 

• The Tongass National Forest was actually established subject to existing property rights, as it stated that nothing shall be construed ‘‘to deprive any persons 

of any valid rights’’ secured by the Treaty with Russia or by any Federal law 

pertaining to Alaska. This limitation was essentially ignored. 

• A Tlingit leader and attorney William Paul won a short-lived legal victory in 

the Ninth Circuit Court of Appeals in Miller v. United States, 159 F. 2d 997 

(9th Cir. 1947), which ruled that lands could not be seized by the Government 

without the consent of the Tlingit landowners and without paying just compensation. To reverse this decision, Federal lawmakers passed a Joint Resolution authorizing the Secretary of Agriculture to sell timber and land within the 

Tongass, ‘‘notwithstanding any claim of possessory rights’’ based upon ‘‘aboriginal occupancy or title.’’ This action ultimately resulted in the Tee-Hit-Ton Indians v. United States decision, in which the U.S. Supreme Court held that Indian land rights are subject to the doctrines of discovery and conquest, and 

‘‘conquest gives a title which the Courts of the Conqueror cannot deny.’’ 348 

U.S. 272, 280 (1955). The Court concluded that Indians do not have 5th Amendment rights to aboriginal property. The Congress, in its sole discretion, would 

decide if there was to be any compensation whatsoever for lands stolen. 

H.R. 740—A Balanced Solution With Significant Public Policy Benefits

Alaska’s congressional delegation has worked hard to ensure that the fair settlement of Sealaska’s Native land claims is accomplished in a manner that may have 

the greatest benefit to all of southeast Alaska while balancing the interests of individuals, communities, Federal and State land management agencies, and other interested stakeholders. 

Thanks to the hard work of Alaska’s congressional delegation, this legislation 

largely is in symmetry with the Obama Administration’s goals for the Tongass, 

while also allowing Sealaska to apply to receive cultural sites that are sacred to our 

people as well as land for sustainable economic development, supporting local jobs 

and communities. 

Sacred Sites 

• H.R. 740 would permit Sealaska to select up to 127 cultural sites, totaling 840 

acres. In previous version of the legislation, Sealaska would have been permitted to select more than 200 cultural sites, totaling 3,600 acres. 

• Sites will be selected and conveyed pursuant to the terms of ANCSA Section 

14(h)(1) and Federal regulations. 

Small Parcels of Land 

• H.R. 740 permits Sealaska to select 16 parcels totaling 2,050 acres, near Native 

villages. The land offers cultural, recreational, and renewable energy opportunities for the villages. 

• More than 50 small parcels sites were considered in previous version of the legislation. Sites heavily used by local communities were removed from H.R. 740. 

• Sealaska will seek partnerships with local tribes, clans, businesses and residents to enhance the indigenous and recreational experience on these parcels 

of land and to share local character and knowledge. 

Large Parcels of Land 

• Most of Sealaska’s entitlement lands will be conveyed as large parcels of land, 

comprising approximately 67,185 acres. 

• These lands were identified in consultation between Alaska’s congressional delegation, Sealaska, tribes, the State, local communities, the Forest Service, local 

conservation groups, and other regional stakeholders, avoiding ecologically sensitive areas, the ‘‘backyards’’ of local communities, conservation areas, and community watersheds. 

• These lands are generally roaded, and contain significant second growth stands 

of timber, supporting Sealaska’s efforts to develop a sustainable forestry economy on Native lands in southeastern Alaska.

We believe this legislation is in symmetry with the goals of the Administration. 

H.R. 740 will:

• Protect roadless areas and accelerate the transition away from forest management that relied on old growth harvesting; 

45

• Help struggling communities in rural Alaska by promoting economic development; and 

• Finalize Sealaska’s Native entitlement in an equitable manner, including the 

conveyance of important cultural sites.

Without legislation to amend ANCSA, Sealaska will be forced either, to select and 

develop roadless old growth areas within the existing withdrawals or, to shut down 

all Native timber operations, with significant negative impacts to rural communities, the economy of southeast Alaska, and our tribal member shareholders. 

The public benefits of this legislation also extend far beyond Sealaska Corporation 

and its shareholders. Pursuant to a revenue sharing provision in ANCSA, Sealaska 

distributes 70 percent of all revenues derived from the development of its timber 

resources among all of the more than 200 Alaska Native Village and Regional Corporations. 

Finalizing Sealaska’s ANCSA land entitlement conveyances will also benefit the 

Federal Government. This legislation allows Sealaska to move forward with its selections, which ultimately will give the BLM and the Forest Service some finality 

and closure with respect to Sealaska’s selections in southeast Alaska. 

Seeking Sustainable Solutions by Selecting Outside the ‘‘Boxes’’

Unlike the other 11 Regional Native Corporations, Sealaska was directed to select 

the entirety of its entitlement lands only from within boxes drawn around a restricted number of Native villages in southeast Alaska. Forty-four percent of the 10 

withdrawal areas is comprised of salt water, and multiple other factors limit the 

ability of Sealaska to select land within the boxes. 

To date, Sealaska has selected approximately 290,000 acres of land under ANCSA 

from within the withdrawal boxes. Based on BLM projections for completion of 

Sealaska’s selections, the remaining entitlement to be conveyed to Sealaska is approximately 70,000 acres. The only remaining issue is where this land will come 

from. Of the lands available to Sealaska today within the ANCSA withdrawal boxes:

• 270,000 are included in the current U.S. Forest Service inventory of roadless 

forestland; 

• 112,000 acres are comprised of productive old growth; 

• 60,000 acres are included in the Forest Service’s inventory of old growth reserves; and 

• Much of the land is comprised of important community watersheds, high conservation value areas important for sport and commercial fisheries and/or areas 

important for subsistence uses.

The Sealaska legislation allows Sealaska to move away from sensitive watersheds 

and roadless areas, to select a balanced inventory of second growth and old growth, 

and to select most of its remaining ANCSA lands on the existing road system, preserving on balance tens of thousands of acres of old growth, much of which is inventoried ‘‘roadless old growth’’. 

Local Impact of H.R. 740—Saving Jobs in Rural Southeast Alaska

While jobs in southeast Alaska are up over the last 30 years, many of those jobs 

can be attributed to industrial tourism, which creates seasonal jobs in urban centers 

and does not translate to population growth. In fact, the post-timber economy has 

not supported populations in traditional Native villages, where unemployment 

among Alaska Natives ranges above Great Depression levels and populations are 

shrinking rapidly. 

We consider this legislation to be the most important and immediate ‘‘economic 

stimulus package’’ that Congress can implement for southeast Alaska. Sealaska provides significant economic opportunities for our tribal member shareholders and for 

residents of all of southeast Alaska through the development of an abundant natural resource—timber. 

Our shareholders are Alaska Natives. The profits we make from timber support 

causes that strengthen Native pride and awareness of who we are as Native people 

and where we came from, and further our contribution in a positive way to the cultural richness of American society. The proceeds from timber operations allow us 

to make substantial investments in cultural preservation, educational scholarships, 

and internships for our shareholders and shareholder descendants. Our scholarships, internships and mentoring efforts have resulted in Native shareholder employment above 80 percent in our corporate headquarters, and significant Native 

employment in our logging operations. 

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We are also proud of our collaborative efforts to build and support sustainable and 

viable communities and cultures in our region. We face continuing economic challenges with commercial electricity rates reaching $0.61/kwh and heating fuel costs 

sometimes ranging above $6.00 per gallon. To help offset these extraordinary costs, 

we work with our logging contractors and our local communities to run a community 

firewood program. We contribute cedar logs for the carving of totems and cedar 

carving planks to schools and tribal organizations. We are collaborating with our village corporations and villages to develop hydroelectric projects. We do all of these 

collaborative activities because we are not a typical American corporation. We are 

a Native institution with a vested interest in the well-being of our communities. 

ANCSA authorized the return of land to Alaska Natives and established Native 

Corporations to receive and manage that land so that Native people would be empowered to meet our own cultural, social, and economic needs. H.R. 740 is critically 

important to Sealaska, which is charged with meeting these goals in southeast Alaska. 

Sealaska’s Sustainable Forest Management Program

Sealaska has a responsibility to ensure the cultural and economic survival of our 

communities, shareholders and future generations of shareholders. Sealaska also remains fully committed to responsible management of the forestlands for their value 

as part of the larger forest ecosystem. At the core of Sealaska’s land management 

ethic is the perpetuation of a sustainable, well-managed forest, which supports timber production while preserving forest ecological functions. Sealaska re-plants, thins 

and prunes native spruce and hemlock trees on its lands, thereby maintaining a 

new-growth environment that better sustains plant and wildlife populations and 

better serves the subsistence needs of our communities. Significant portions of 

Sealaska’s classified forest lands are set aside for the protection of fish habitat and 

water quality; entire watersheds are designated for protection to provide municipal 

drinking water; and we set aside areas for the protection of bald eagle nesting habitat. The decision to cut trees is not taken lightly, and is always based on the best 

science and best forest practices. 

The Forest Service’s Plans for the Tongass: Impact of H.R. 740 on Tongass 

Management

We believe Sealaska’s offer to leave behind roadless old growth timber in the 

Tongass is significant; it is a proposal we believe this Administration should support 

based on its goals to protect these types of forest lands. We also believe that the 

lands proposed for conveyance under H.R. 740 conflict minimally with and may ultimately benefit the Forest Service’s Transition Framework for the Tongass. 

Sealaska and the Forest Service agree that to achieve a successful transition to 

second growth, the Forest Service needs Sealaska to remain active in the timber industry in the Tongass, because Sealaska’s operations support regional infrastructure 

(including roads and key contractors), development of markets (including second 

growth markets), and development of efficient and sustainable second growth harvesting techniques. 

Sealaska has 30 years of experience developing and distributing southeast Alaska 

wood to new and existing markets around the world. Sealaska recently has pioneered second growth harvesting techniques in southeast Alaska and is active in 

this market. By partnering with the Forest Service, harvesting in proximity to each 

other, and collaborating to build new markets based on second growth, we will all 

have a better chance of success. 

Conservation Considerations and H.R. 740

This legislation is fundamentally about the ancestral and traditional homeland of 

a people who have lived for 10,000 years in southeast Alaska. For more than 200 

years, people from across the western world have traveled to southeast Alaska with 

an interest in the rich natural resources of the region—an area the size of Indiana. 

We have endured Russian fur trade, whaling, gold miners and fishing interests over 

time. We had large fishing industry activity and two large pulp mills with significant access to our resources. In the meantime, Natives were ignored, marginalized 

or relocated to central locations, in part for federally-mandated schooling. 

More recently, some conservation-minded groups, like industrialists before them, 

introduced new ideas about how best to serve the public interest in the Tongass. 

The conservation community writ-large has long fought to preserve the Tongass for 

its wilderness and ecological values, and we have often worked with them to seek 

appropriate conservation solutions for the forest. Our resource development pracVerDate 0ct 09 2002 15:12 May 16, 2014 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 X:\03INDI~1\03MY16~1\5-16-1~1\80981.TXT MARK
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tices have evolved over 30 or more years to better ensure the preservation of the 

Tongass’ ecological values. 

We support conservation, but there must be a recognition of the human element—

that people have to live in this forest, and that people rely on a cash economy to 

survive. Industrial tourism, ecotourism, and fishing provide limited employment to 

the residents of our Native villages. But these jobs are scarce and short-term, and 

have not prevented widespread outmigration from our communities. 

We also want those expressing an interest in the Tongass to recognize that the 

Tongass is a Native place, and that Native people have a right to own Native places 

and to promote economic development on Native lands while seeking to balance the 

needs of our tribal member shareholders, our neighbors, and the forest itself. We 

welcome people to our homeland—but we have a right and an innate desire to exist 

and subsist in the Tongass. 

There are groups that consistently agree with us that we should have our land, 

but wish to decide—to the smallest detail—where that land should be. Native people 

have always been asked to go second, third or last. Let’s not forget that H.R. 740 

addresses the existing land entitlement of the Native people of southeast Alaska. 

Some groups have claimed that ‘‘the lands that Sealaska proposes to select . . . 

are located within watersheds that have extremely important public interest fishery 

and wildlife habitat values.’’ H.R. 740 will result in net benefits for watersheds, 

anadromous streams, public hunting and fishing and recreation, the preservation of 

roadless old growth forests, sensitive species, and the Forest Service’s conservation 

strategy for the Tongass. We agree that all lands in our region are valuable, and 

we believe our Federal lands and our Native lands should be managed responsibly. 

We acknowledge the need for conservation areas and conservation practices in the 

Tongass. This bill meets all of those goals. 

Technical Amendments to the TFPA and NHPA

Section 7(d)(1) of H.R. 740 would permit Native Corporations to work with the 

Secretary of Agriculture under the Tribal Forest Protection Act (TFPA) to address 

forest fire and insect infestation issues on Forest Service lands that threaten the 

health of the adjacent Native lands. Section 7(d)(2) of H.R. 740 would allow Native 

Corporations, as owners of Native cemetery sites and historical places in Alaska, to 

work with the Secretary of the Interior to secure Federal support for the preservation of such lands under the National Historic Preservation Act (NHPA). 

Prior to the reintroduction of legislation on Sealaska’s behalf in the 112th Congress, these amendments were re-drafted to clarify only that Native Corporations 

are ‘‘eligible’’ to participate in the respective Federal programs established under 

the TFPA and NHPA. The amendments also included language that explicitly states 

that they do not create ‘‘Indian country’’ in Alaska. 

A New Bill for the 113th Congress

In the 113th Congress, Congressman Don Young introduced new legislation that 

incorporates a number of changes, all intended to resolve the outstanding concerns 

of the Obama Administration. H.R. 740 incorporates the following changes, among 

others:

• Final entitlement acreage identified: In the 112th Congress, the Sealaska bill 

did not finalize Sealaska’s entitlement upon enactment. Instead, the bill provided for finalization of entitlement by allowing Sealaska to identify its remaining entitlement lands from within a pool of lands. H.R. 740 identifies with finality the land Sealaska will receive. 

• BLM has estimated Sealaska’s final entitlement at approximately 70,075 

acres. H.R. 740 establishes Sealaska’s final entitlement as 70,075 acres.

• Forest Service concerns addressed: H.R. 740 ‘‘squares up’’ the boundaries of 

Sealaska’s economic parcels so the boundaries can more easily be managed by 

the Forest Service, removes some lands that conflicted with the Forest Service’s 

Tongass National Forest conservation plan and/or timber harvesting plan, and 

removes parcels of land on Prince of Wales Island, Tuxekan Island, and Kosciusko Island that raised local concerns. 

• Cemetery sites and historical places removed: In the 112th Congress, the bill 

would have allowed Sealaska to use 3,600 acres of its existing entitlement to 

select cemetery sites and historical places, consistent with Section 14(h)(1) of 

ANCSA. 

• H.R. 740 would allow Sealaska to select up to 127 cemetery and historical 

sites, and will limit the acreage available for those sites to just 840 acres.

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• Small parcel sites removed: In the 112th Congress, the Sealaska bill would have 

conveyed 30 small parcels to Sealaska to be used for cultural or economic activities. 

• To address some local concerns, H.R. 740 will reduce the number of small 

parcel sites to 16—about half of which are located within the original 

withdrawal boxes. 

Time is of the Essence

Timing is critical to the success of the legislative proposal before you today. Without a legislative solution, we are faced with choosing between two scenarios that ultimately will result in dire public policy consequences for our region. If H.R. 740 

is stalled during the 113th Congress, either Sealaska will be forced to terminate all 

of its timber operations within approximately one year for lack of timber availability 

on existing land holdings, resulting in job losses in a region experiencing severe economic depression, or Sealaska must select lands that are currently available to it 

in existing withdrawal areas. The timing is the reason for H.R. 1306, which is a 

vehicle to more quickly transfer two parcels of land currently included in H.R. 740, 

just in case H.R. 740 is held up and not passed in 2013. 

Our Future in Southeast Alaska

Our people have lived in the area that is now the Tongass National Forest since 

time immemorial. The Tongass is the heart and soul of our history and culture. We 

agree that areas of the region should be preserved in perpetuity, but we also believe 

that our people have a right to reasonably pursue economic opportunity so that we 

can continue to live here. H.R. 740 represents a sincere and open effort to meet the 

interests of the Alaska Native community, regional communities, and the public at 

large. 

It is important for all of us who live in the Tongass, as well as those who value 

the Tongass from afar, to recognize that the Tlingit, Haida and Tsimshian are committed to maintaining both the natural ecology of the Tongass and the Tongass as 

our home. We therefore ask for a reasoned, open, and respectful process as we attempt to finalize the land entitlement promised to our community more than 40 

years ago. We ask for your support for H.R. 740. 

Gunalche ́esh. Thank you. 

Mr. YOUNG. Thank you, Byron. Senator? 

Ms. HANABUSA. So, Byron, what is the correct pronunciation that 

he keeps butchering? 

Mr. MALLOTT. I will not remark on how he addresses you, Congresswoman. 

[Laughter.] 

Mr. MALLOTT. He, from time to time, has called me ‘‘Brian.’’ He 

has called me ‘‘hey, you.’’ He has called me ‘‘his good friend’’ as he 

wraps his arms around me. He and I have incredibly close friends 

and family, whose pictures hang on his wall. 

He will say to me sometimes, ‘‘hey, you, you know Morris almost 

as well as I do,’’ talking about his friend as he struggles to capture 

my name after 40 years of friendship. 

Thank you. 

[Laughter.] 

Ms. HANABUSA. Is it Mallott? 

Mr. MALLOTT. Yes, Mallott. 

Ms. HANABUSA. Did you hear that? It is Mallott. 

[Laughter.] 

Ms. HANABUSA. First of all, Mr. Chair, I would like to also share 

with you that Mr. Mallott and his son are very much a part of Hawaii because he sits on the Board of what we call the Polynesian 

Voyaging Society, and he and his son, I think his son is going to 

be on seven of the legs as we take what is traditionally called 

49

‘‘Hokulea,’’ and it is how we believe the Native Hawaiians came, 

and then ‘‘voyage.’’ It is navigation by stars. 

They have rebuilt the Hokulea. They are going to go around the 

world. He is going to be part of that. Do you want to join him? 

[Laughter.] 

Mr. YOUNG. Well, if you take over the Majority, I might be able 

to do that. 

[Laughter.] 

Ms. HANABUSA. Thank you. Thank you very much for being so 

much a part of our culture as well. It always shows the closeness 

of Alaska and Hawaii, and we, of course, are trying our best. That 

is why I have to keep him straight on everything. 

Having said that, we have heard much, I believe it was in Mr. 

Pen ̃ a’s testimony in the other panel, about the fact that they are 

very close or negotiations have gone on, like the way you said. In 

his particular case, I think he referenced S. 340, which is the Senate version of this bill. 

When you said we have worked on it, and I know you have, are 

there any provisions in the Senate bill that you feel should be incorporated in this bill, because it explains or shows the amount of 

negotiations that have gone on, do not worry about offending either 

of us because we have signed on to the original, or is it the original 

bill you are here to push for? 

Mr. MALLOTT. Because the House of Representatives acted so 

forthrightly and so quickly and has by the full House passed this 

bill into what will be law if accepted by the other body, and because the current Federal Administration was relatively new in office during key recent moments of negotiations, most of the negotiations have concentrated on the Senate bill. 

There is no question that has been the focus principally of the 

Administration. It has been the focus principally of the environmental community that has been involved and other interests as 

well. 

Therefore, not necessarily speaking personally but speaking from 

the realistic perspective that much of the negotiation has taken 

place on the Senate side, and much agreement has been reached 

on the Senate legislation. 

With particularly the Administration and the environmental 

community, I think there is a general expectation that would be 

the principal vehicle. 

Speaking personally and not even necessarily as a Sealaska 

Board member, in my personal judgment, there is more equity and 

justice in the House bill, but I also know from long, long experience 

that what the Native community can easily and passionately feel 

is equity and justice for others as often is very hard to ultimately 

make possible. 

We are dealing with the fundamental reality here. I am not trying to fudge my answer, but I am trying to be as honest as I can 

be. Thank you. 

Ms. HANABUSA. Thank you. Thank you, Mr. Chair. I yield back, 

my time has expired. 

Mr. YOUNG. Any questions? 

[No response.] 

50

Mr. YOUNG. I know there has been talk they do not like the 

Young bill. I am pleased to hear you would like to have that bill. 

For the audience for anybody else, I am not going to take a Senate 

bill when it could be further negotiated. The real reason the Senate 

has been able to do anything is because my bill is out there to put 

a little prod into them. I want everybody to understand that. 

If it goes to conference, we can always figure out what we should 

do. Justice is something, madam, I have to tell you, the reason they 

could not select enough lands in Southeast, including the State, it 

was reserved at that time, and under the Statehood Act, we could 

not select the lands, it was the communities. 

Of course, the Alaska Native Land Claims Act came in, and they 

did select the land, but they still have not gotten 40,000 acres of 

their land. That is really what this bill is trying to do. I do appreciate it. 

Andy, what are you going to do with this land once it is transferred? You said you were going to build a hotel or residing area? 

Mr. TEUBER. Yes, Mr. Chair. Thank you for your question. As 

you will recall perhaps years ago, 2 years ago, I joined you on a 

tour of the Alaska Native Medical Center, and you were touring, 

among other departments, oncology and cardiology. 

Some of the information that you had gained from our providers 

were that they had worked very hard to accomplish a reduction in 

the backlog for services to our patients when they were able to finally get to Anchorage. 

However, for many of our patients, the constraint that exists is 

housing in Anchorage, affordable housing that will allow them to 

become patients when their appointments become available. 

The request that the Consortium is making through this 

H.R. 623 is that there is a Federal conveyance by the IHS of land 

to the Consortium. The reason why we are going through this process is that although the IHS has already conceded to a quick claim 

deed for the property, which allows us right of entry, which allows 

the progress to begin, the financing for the construction, short and 

long term, is only going to be made available by diminishing or 

eradicating the other constraints or encumbrances that would exist 

under that quick claim deed, and so we approach you and this body 

for support in this H.R. 623 for a warranty deed that would allow 

for the Consortium to leverage the property in the long term financing for the 170 unit housing project that will begin construction this summer. 

Mr. YOUNG. You heard the testimony of IHS. Do you dispute any 

of that? What about the revision clause? Does that bother you? 

Mr. TEUBER. Thank you very much, I appreciate the question. 

First of all, we appreciate Deputy Director McSwain’s support of 

this, and for the first time perhaps in my history, we have asked 

that the IHS slow down in this process. We have never been in 

that position before. 

They have been very supportive. The process as it exists today, 

Mr. Chairman, is that we have a process for re-platting the existing parcel in order to ensure the legal description is accurate, both 

in the quick claim deed, the warranty deed, and in this legislation. 

We support the legislation as it is written currently. We support 

the request by the IHS that the 30 day period be expanded or inVerDate 0ct 09 2002 15:12 May 16, 2014 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6602 X:\03INDI~1\03MY16~1\5-16-1~1\80981.TXT MARK
51

creased to 90 days. However, we object to the mild suggestion that 

was expressed by previous testimony around the reversionary 

clause because it is that very reversionary clause that we are seeking your support through this legislation to get away from. 

The reversionary clause exists with the quick claim date and we 

have already received that from the IHS. The purpose for my testimony and our request in support of this legislation is to get away 

from that so we can use the parcel for long term financing, it will 

collateralize the loan. 

Finally, Mr. Chair, if I can, there was a request that the Consortium accept responsibility for the environmental aspects of the parcel going back to 1999. We support the language as it is currently 

written in the legislation, keeping it as it is, that we would accept 

environmental responsibility from the time the conveyance occurs, 

rather than from an arbitrary date back to 1999, once that control 

was not ours. 

Thank you. 

Mr. YOUNG. Thank you for the clarification. Do you have any 

questions? 

Mr. GRIJALVA. Thank you, Mr. Chairman. Mr. Mallott, you made 

the case that the Natives of Southeast Alaska were treated differently from the other Native Corporations on how much land was 

conveyed. I think you pointed that out both in our oral and written 

testimony. 

Although Sealaska got fewer acres than the other regional corporations, it is my understanding the value of those acres were 

among the highest of any corporation. Because of some of the communications that we received, let me ask you the question. 

How do you respond to the argument that in terms of dollar 

value, Sealaska fared very well under the settlement terms? 

Mr. MALLOTT. Thank you. First of all, I would say that again, as 

a young person out there literally traveling from village to village 

during those years, seeing community leaders and tribal leaders 

and village leaders draw on sheets of paper the boundaries of the 

lands that they claimed and that they used and occupied, it was 

never about economic development. 

It was about retain our homelands, our Native lands, for future 

generations. Those lands that are precious to us. 

We also had as a strong principle in our aspiration and involvement with ANCSA, that we all share and share alike. We know 

that Alaska is really another country, and that the location of valuable resources are widely spread, but they also exist in known 

areas. 

There was a sense that all of the regions should share collectively in whatever wealth was generated off of our Native lands. 

In Southeast, while we had valuable timber, the law, ANCSA 

itself, required that 70 percent of all profits, to use shorthand, the 

actual law said revenues, and it took 10 years of litigation and negotiations to ultimately define what that meant, but we share 70 

percent of our profits one with the other. 

The fact that Sealaska had valuable lands, we shared 70 percent 

of that revenue with the other corporations, other corporations had 

ultimately, we found, far more valuable lands, and they shared 

with us. 

52

Mr. GRIJALVA. I appreciate that answer very much. Thank you 

for clarifying that. From the outset, in defining boundaries, the 

issue was territorial homeland as opposed to any other consideration? I think that was your comment. 

Mr. MALLOTT. Certainly from the perspective of particularly village leaders, the folks who lived on the land, that was very much 

the case; yes. 

Mr. GRIJALVA. Thank you. Chairman Leno, if I can ask you a 

question, and thank you for being here, sir, in your written testimony, you indicate that H.R. 841 does not have any opposition 

from tribes anywhere or counties in Oregon, but it has come to my 

office’s attention that the Cowlitz Indian Tribe, and I hope I am 

saying that correctly, of Washington State, has issued a letter in 

opposition to your bill based on Grand Ronde’s efforts to stop Cowlitz’s land into trust efforts by invoking the Carcieri decision. 

Can you comment on this letter or on that situation? 

Mr. LENO. Really, sir, I just now got that information. I will say 

in kind of our litigation with Cowlitz, we actually met with the 

Cowlitz’s about a week and a half ago, that was our request. They 

in turn when the record of decision came out last week requested 

a meeting with us. We will accommodate that meeting. Next Friday, we will be meeting with the Cowlitz’s. 

Mr. GRIJALVA. Thank you, Chairman. I appreciate it, I yield 

back. 

Mr. YOUNG. You can have a follow up question. 

Ms. HANABUSA. This is for Mr. Teuber. My colleague here, the 

Chair, says what great work you do, and I am sure you do. I am 

interested in the whole reversionary interest. I am just wondering, 

because that seems to be the hang up that we are having, now, on 

that particular situation, are the rest of your lands in trusts, that 

the facility sits on? 

Mr. TEUBER. Thank you, Ranking Member Hanabusa, for that 

question. The Consortium, the Alaska Native Tribal Health Consortium, was formed in 1997. At that time, we took over the delivery of services from the Indian Health Service. 

However, the facility, the Alaska Native Medical Center, resides 

on Federal property to this day. In terms of trust lands, no. The 

private property that our organization resides on is not a conveyance. It does not derive from Federal conveyance. It was purchased 

as commercial property like any other commercial purchase. 

Ms. HANABUSA. Let me see if I can clear this up. I do not know 

anything about Alaska law, but I assume you are the equivalent 

of like a non-profit? 

Mr. TEUBER. We are, indeed, yes, a 501(c)(3). 

Ms. HANABUSA. I can tell you under Hawaii law, for example, if 

you are a non-profit under Hawaii law, when and if you terminate, 

because it seems to be the interest of the reversionary component 

of it, what happens is you can only transfer those assets to a like 

type of corporation or like type of non-profit. 

Do you know if that also exists in Alaska’s laws? For some reason, if you were not to exist any more, it would be similar to reversionary interest because—not to the Federal Government but to another entity that would do like purposes. Is that part of your laws? 

Do you know? 

53

Mr. TEUBER. Thank you. I am not an attorney or expert in tax 

law, but I believe, and I could certainly request the assistance of 

my valued colleague, Ms. Valerie Davidson, to reinforce my response, but I believe that the description that you are providing is 

one of a Federal nature around 501(c)(3) status——

Ms. HANABUSA. No, this is not 501(c)(3), which would be a tax 

exempt status. What this is under laws of a State, when you become incorporated as a non-profit, I use that word ‘‘incorporated’’ 

because it is kind of contrary to what you think of as a non-profit, 

when that non-profit ceases to exist, some State laws require that 

the assets of the non-profit can only transfer to a like entity. 

That is what I am asking you, and if you do not know, you can 

provide it to me in writing after you have had the opportunity. 

It seems to me it would take care of this concern about reversionary interest. 

Mr. TEUBER. Thank you. I appreciate the question and the concern. I am informed that Alaska law does not require that. We will 

confirm that for your benefit moving forward. 

However, I would say the Consortium is in fact a consortium of 

229 Tribes that have coalesced their health care delivery system in 

the tertiary care and specialty arena with the Consortium, that in 

my estimation, there is little to no likelihood there will ever be a 

day when that property would be used for purposes other than delivery of health care to Alaskan Natives and American Indian people. 

Ms. HANABUSA. I tend to agree with you. I just thought that 

might take care of this particular issue. Thank you. Mr. Chair, I 

yield back. 

Mr. YOUNG. Thank you. One statement to Byron. When you said 

they shared, all the tribes, and I agree with that, but I remember 

one time when my wife and I were upstairs in a Western Hotel 

with a bunch of like Jake Adams and Ollie Blevett and a few others. Jake was being a little funny. He said are you Athabaskan, do 

you share and share alike? 

He looked him right in the eye and says Jake, I am a savage 

Athabaskan, what is mine is mine, and what is yours is mine, too. 

[Laughter.}

Mr. YOUNG. I never forgot it. Boy, I thought it was the greatest 

put down in the world. 

Mr. MALLOTT. The only observation I would make very quickly, 

Congressman, is to ask the question whether that was before or 

after you and Ollie got down on the floor to Eskimo leg wrestle. 

Mr. YOUNG. You are not supposed to tell that. That was before. 

Anyway, I want to thank the panel for the testimony, and we 

will work on these bills. I can assure the Members that maybe 

there will be a shorter period of time when the courts can review 

the other legislation that we were talking about. 

All right. You are excused. 

We will have the third panel up, Ms. Diane Enos, Salt River 

Pima Indian Community; Mr. Ned Norris, Chairman of the Tohono 

Nation; and Mr. Jimmie Rosenbruch. 

Jimmie, I think your chair is right in front of you, is it not? 

And we are going to reverse orders here because I understand 

Mr. Rosenbruch has to catch an airplane, and so you are going to 

54

be first up. I am sure that makes you happy. Push your button on 

the mic. 

STATEMENT OF JIMMIE CANNON ROSENBRUCH, EDNA BAY 

COMMUNITY, INC. AND TERRITORIAL SPORTSMEN, INC. 

Mr. ROSENBRUCH. Without starting the clock, could I please submit? I have five letters I would like to submit to the Committee. 

Could I do so please? 

Mr. YOUNG. Without objection, they are submitted to the Committee. 

[The five letters submitted for the record by Mr. Rosenbruch 

have been retained in the Committee’s official files:] 

Mr. ROSENBRUCH. There is a March 13 letter, Territorial Sportsman of 2013. There is a letter of 19 different Sportsman groups in 

Alaska, dated April 22, 2013. There is a letter from three previous 

Directors of Alaska Department of Fish and Game, dated April 28, 

2010. There is the Alaska Outdoor Council, NRA Chapter, dated 

April 16, 2013, and an Audubon letter, dated April 22, 2013. 

Mr. YOUNG. Without objection. 

Mr. ROSENBRUCH. Will these be in good custody if I leave them 

sitting right there? 

Mr. YOUNG. Actually leave them there and they will be picked 

up. 

Mr. ROSENBRUCH. OK. Thank you. 

I would say the same thing. You and I have been friends about 

as long as we have with Mr. Mallott, and it is Rosenbruch. 

[Laughter.] 

Mr. ROSENBRUCH. So——

Mr. YOUNG. OK, Mr. Smith. Go ahead. 

[Laugher.] 

Mr. ROSENBRUCH. OK. I want you to know I do not hold that 

against you at all. 

Listen, I would introduce myself: Jimmie Rosenbruch. I would 

just take a moment please and maybe familiarize the group a little 

bit with what we have done. 

We moved to Alaska. We are 1 year short of a half a century we 

have been in Alaska. I received the SEI Professional Hunter of the 

Year Award, Weatherby Award. That is kind of the Oscar of hunting. 

When I first went to Alaska in 1965, I was a civil engineer for 

the Bureau of Indian Affairs, and I traveled literally to every single 

104 native villages on assignment. So we got a good look at Alaska. 

I was also appointed by the Secretary of the Interior as staff civil 

engineer at the Alaska Land Use Planning Commission to help define rights-of-way through corridors, through the newly selected 

parks and such. 

I have a degree as a civil engineer, but I said I would like a little 

more time in the bush, and I started guiding. I have guided about 

as long as I have been in Alaska. In fact, as a master guide I received the very first permit that the Forest Service ever issued to 

any hunting entity. 

My wife received the very first master guide license from the 

State of Alaska. 

55

I would say that in Alaska it is a group of sportsmen. Most people are sportsmen. There is not one single sportsman group which 

has endorsed these bills. There are about 12,000 bona fide individuals who are opposed to the bill, comprised of the Alaska Outdoor 

Council, which is a NRA chapter, and Territorial Sportsmen down 

in Juneau. 

One serious issue or concern we have is the preemption precedent that section 4(e)(1) of the Senate bill has in regards to transferring Federal management onto private lands. It specifies in 

there, and this was brought up by Territorial Sportsmen and their 

attorneys, that this provision would, in fact, in this bill provide for 

Federal management on private lands. That would be a precedent 

I do not believe we want to set. That we might know could cause 

a little bit of grief. 

As far as my culture goes, I was very well acquainted with Georgian Jesse Dalton of Hoonah, and I and my wife were both introduced, in fact, inducted into the Tlingit Clan. I was as an Eagle, 

and she was a Raven. 

I can tell you that George would not be happy with what we are 

doing with his timberlands. This clear-cutting, as a culture he respected the forest and cherished it. 

Another issue is on Kuiu Island where, as you stated, we had 

many years of this industrial clear-cutting with the pulp mills, and 

what remains on Kuiu Island, that little bit of old growth is what 

in this newest bill proposal Sealaska has selected. 

Let me give you a little indication of what I am talking about. 

With the cutting that has taken place there, and we keep a log on 

our boat. When we are out every day, we log how many bears we 

see, the wildlife we see. We have kept that log for half a century. 

In 1988, it was a little stormy. So I took my wife and my daughter, 

went up a creek on Kuiu Island, and that day we counted 86 different black bear on one creek. 

Twenty years later, there are six. We have hunted there continually, but in that system we have berries of course, but the most 

we see in there is six bears. What has happened is we have cut this 

old growth timber off these islands. That is what deer have to survive on in the winter. When they get deep snow, if they do not have 

good cover, they cannot move around and they cannot forage. Black 

bears down low use it for hibernating areas, et cetera. 

So what is happening, in fact, is we are seeing these largest remaining stands of old growth, and old growth is not dead timber. 

It is old timber. It is trees that are the size of redwoods, not dead 

timber. They are all alive, very active. I can show you some pictures, et cetera. 

Also, it is kind of Sealaska to offer access for guides to utilize 

these lands for a 10-year period after their Forest Service permit 

expires. I do not know that it would be much benefit. Having access to clear-cut areas would not be worth anything. There is no 

wildlife there. They are d-o-n-e, finished. 

If by chance we got access into areas that had not been cut, it 

only goes for 10 years. I have got five children. Three of them work 

with us full time. I have got seven grandsons. I think they are 

going to want to do what I have done, have that opportunity for 

long after a period of 10 or 12 or 15 years has passed. 

56

Last, as you well know, some of the communities in the north 

end of Prince of Wales are going to be very significantly impacted 

by this and, in any case, it will not bode well for us. 

I appreciate standing before you. 

[The prepared statement of Mr. Rosenbruch follows:]

PREPARED STATEMENT OF JIMMIE CANNON ROSENBRUCH, EDNA BAY COMMUNITY, INC. AND TERRITORIAL SPORTSMEN, INC. 

My name is Jimmie Cannon Rosenbruch. I was born and raised in Utah. I was 

educated as an engineer and in 1966 moved to Alaska where I worked with the BIA. 

I was appointed by the Secretary of Interior as a Staff Civil Engineer for the Alaska 

Land Use Planning Commission in 1972–1973. 

For close to 50 years I have been a Big Game Guide in SE Alaska, mostly as a 

Master Guide, the highest license issued by the State of Alaska. I hold the Safari 

Club International Professional Hunter of the Year Award and the Wheatherby 

Conservation and Hunting Award, an Oscar in the hunting world. 

My wife, who was the first woman Master Guide in Alaska, and I established 

Alaska Glacier Guides in 1974. Now a family business, AGG takes people from all 

over the world to islands in the Tongass National Forest where they hunt, kayak, 

fish, or photograph wildlife. 

During my close to 50 years in Alaska, we have cruised all of the waters in the 

Tongass National Forest stopping and going ashore in all the bays. I have had a 

chance to meet a cross section of the people in the Tongass and hear how they view 

the Sealaska Lands bills. These bills died in Congress in 2003, 2006–2007, 2008–

2010, 2011–2012. 

Because of the few days notice for this hearing and the difficulty of contacting 

groups when they are hunting or in the bush, I represent only a few organizations 

that have had time to authorize me to represent them. Today I represent the Territorial Sportsmen, an organization of 1,600 members founded decades ago, and Edna 

Bay, a small community on an island way off the mainland. 

I note there is no sportsman’s group in Alaska that has come out in support of 

H.R. 740 or H.R. 1306. 

It is unnecessary for the committee to pass this legislation, H.R. 740 and 

H.R. 1306. 

H.R. 740 Unnecessary 

A long list of national and regional hunting, sportsmen’s, wildlife, conservation organizations, and scientists believe a new Sealaska bill is not necessary, because 

ANCSA (1971) should govern what Sealaska should get by requiring BLM to finalize 

the designations of land Sealaska sent it in 2008. In addition, there are nine towns 

in Alaska who object to this bill in the strongest terms and have valid reasons why 

Sealaska should not take its land near their towns. 

A partial list includes the 19 national wildlife groups who represent 2 million 

Sportsmen and Wildlife Managers as listed in the April 22, 2013 letter to Senator 

Wyden. In Alaska, the NRA chapter of Alaska, called the Alaska Outdoor Council, 

opposes this bill. They have about 10,000 members. We’ve mentioned the Territorial 

Sportsmen’s 1,600 members. 

I endorse the reasons for opposition found in the Alaska Outdoor Council’s recent 

letter to the Congressional Sportsman’s Caucus. Their first two reasons are no action is required to give Sealaska its final entitlement and there is no need,

(http://tongasslowdown.org/TL/docs/

Sen.%20John%20Thune%20Chairman%20CSC%20%20R%20SD.pdf).

The Wildlife Management Institute and the Dallas Safari Club, among the 17 others, think this bill is unnecessary:

‘‘Legislation is not required. Sealaska is presently entitled to receive its full land 

entitlement under law within areas that the Corporation helped identify and actively 

supported in testimony before Congress at the time of deliberation. These areas were 

submitted to the Bureau of Land Management (BLM) in 2008 under the strong legal 

language of the Alaska Land Transfer Acceleration Act as ‘‘final and irrevocable priorities’’. With the prospect of gaining increased value via this legislation, Sealaska 

has subsequently asked BLM to halt conveyance. At this point, the Sealaska Corporation itself is the party solely responsible for not having received its full land entitlement under ANCSA.’’ April 22, 2013 letter to Senators Wyden and Murkowski, 

Pg. 2, http://tongasslowdown.org/TL/docs/

AWCP%20Sealaska%20letter%20final.pdf.

57

The Alaska Guides Association also urged BLM to make the final selections under 

existing law. Feb. 1, 2013, http://tongasslowdown.org/TL/docs/

AGA%20Letter%20to%20BLM%20Sealaska%202013.pdf.

And the Alaska Chapter of Safari Club International finds further delay in implementing existing law ‘‘will only cause disruption’’. Feb. 3, 2013, http://

tongasslowdown.org/TL/docs/SCI%20Sealaska%20Letter%202013.pdf. 

There has been no independent appraisal completed by an independent party that 

indicates Sealaska cannot make a profit from the lands they wanted around their 

villages and agreed to take in 1975. The status quo imposes no hardship on 

Sealaska.

It is only Sealaska’s desire to make a bigger profit that drives this bill. There is 

no reason others should pay the penalty. 

Many times over the past years, Sealaska has asserted it will run out of timber 

if their bill is not passed. There is no need to pass an interim measure like 

H.R. 1306 to supply Sealaska with some timber to tide them over until H.R. 740 

can pass. If H.R. 1306 passes, the precedents will already be in place making the 

precedent argument raised in opposition moot. 

An estimate was done showing Sealaska has tens of thousands of acres still 

uncut. There is also no proof whether Sealaska has accelerated the pace of their cutting. We do know Sealaska only cut 133,073 acres from its inception to 2006 according to the USFS’s Appendix E found on Numbers from Outer Space on this link: 

tongasslowdown.org/TL/action.html. At anytime, Sealaska can ask BLM to finalize 

a portion of its 2008 request to tide it over. 

If Sealaska is cutting at 10,000 acres a year, then in 61⁄2 years, they will be out 

of timber again—raising the question, are they going to come back to Congress to 

ask for another 100,000 acres for what they call their landless? 

Clarification of Basic Facts 

How many acres Sealaska is entitled to under ANCSA? 

While Sealaska has obtained title to at least 456.25 square miles (292,000 acres) 

of timber land in the Tongass National Forest, how many more acres does Sealaska 

get?

The exact acreage was not specified in ANCSA. Instead an ANCSA 14(h) percentage was provided mandating BLM to make final acreage calculations. 

H.R. 740 discards this formula Congress devised in 1971, which all sides thought 

was fair and equitable at the time. 

Numbers Keep Changing 

Chairman Young has stated Sealaska should get:

• 60,000 (2007), http://www.youtube.com/watch?v=nOqHITx-uvY @ 1:24 min and 

4:32 min • 85,000 (2009–10), http://www.youtube.com/watch?v=Q9Zr0-rI7p8 @ 7:18 min • 77,000 (2012) floor speech House. http://www.youtube.com/

watch?v=t3rB8IYoKKo @:22 min. asking for ‘‘77 million acres of land that’s already been cut, there’s no old growth timber involved in this.’’ 1:01 • 70,075 (2013) H.R. 740

Assistant Secretary of Agriculture, Harris Sherman told Congress Sealaska 

should get:

• 63,000 acres (Senate Testimony—May 25, 2011) http://tongasslowdown.org/TL/

docs/ShermanTestimonyonS730052511.pdf.

Senator Murkowski said BLM told her Sealaska should get:

• 70,000 acres (Lands Subcommittee Hearing—April 25, 2013).

But just saying so does not make it so absent correct data in black and white. 

BLM has no memo in the Congressional Record analyzing what Sealaska should 

get in 2013 even though ANCSA makes it the final calculator of the final amount. 

If BLM has a memo it has shown Congress behind closed doors, the public deserves to see the final calculations. Before this bill moves any further along, this 

memo should be revealed. 

How much timberland is old growth or second growth? 

Mr. Young stated on the floor of the House (June, 2012) that ALL of the 

timberland Sealaska will get is SECOND GROWTH. His words were ‘‘77 million 

acres of land that’s already been cut, there’s no old growth timber involved in this.’’ 

@ 22 seconds http://www.youtube.com/watch?v=t3rB8IYoKKo. 

58

Only 8 percent of the acres in the 2012 bill were second growth if there were 

85,000 acres actually in one of the two versions of that session’s bill; 8 percent 

equals 6,900 acres of second growth out of the 85,900 acres in the bill. 6,900 acres 

was cited by the Under Secretary of Agriculture, http://tongasslowdown.org/TL/

testimony.html. 

While there is a larger percentage of second growth in H.R. 740, than in last 

year’s H.R. 1408, a majority of the land is still old growth in 2013. 

Old Growth Significance for Wildlife 

The majority of lands Sealaska seeks are the very rarest of the biggest old growth 

trees in the Tongass Forest. These large trees are vital for healthy wildlife populations supporting deer, bear, wolf, and goshawk. The latter two at risk of being listed as endangered. 

This legislation would take a significant chunk of old growth stands in places 

where previous cutting makes the remaining stands vital for these species. This 

issue has been studied by the biologists at Alaska Audubon who found that the big 

tree stands in this legislation high grade the big trees far out of proportion to their 

distribution in the Tongass as a whole. See their April 22, 2013 letter, http://

tongasslowdown.org/TL/docs/Senator%20Wyden%20-

%20Sealaska%20S%20340%204-19-13%20final.pdf. 

I keep a ship’s log of the bears observed over the years including Kuiu Island. 

Before the heavy cutting on the north end of the island occurred, I observed a significantly higher number of bears. This bill targets the remaining big tree stands 

and I am certain the wildlife will continue to decline. I’ve already observed the results. Today the Kiui the black bears are less than half their historical numbers according to our ship’s log and the deer are virtually gone. 

In September 1988 on a single creek I counted 86 bear. Twenty years latter the 

most we have seen there is six. 

About 19 wildlife groups, representing millions of outdoor enthusiasts, signed onto 

a letter which states that 30 percent of the acreage in this legislation will be the 

largest trees, whereas these trees are now less than 3% of the forest, http://

tongasslowdown.org/TL/docs/AWCP%20Sealaska%20letter%20final.pdf. 

The Members of the House must weigh the consequences of liquidating these 

stands of giant old growth trees. In the past, Sealaska has taken all the trees on 

their land and there is little doubt they will do so again in their proposed selections 

in this legislation. 

Congress must take to heart these words of the biologists who collaborated on the 

drafting of the letter 19 national and regional wildlife organizations wrote about 

this legislation a month ago:

‘‘Conveying the most productive lands from the Tongass National Forest to 

Sealaska will risk listing decisions for a number of species under the Endangered 

Species Act (ESA). Petitions have previously been filed with U.S. Fish and Wildlife 

Service for listing the Queen Charlotte Goshawk, the Alexander Archipelago Wolf, 

and the Prince of Wales Flying Squirrel. Loss of old-growth forest from logging is 

the primary basis for these petitions. Transfer of these important old-growth areas 

for logging without prior agency assessment of the effect on a potential listing under 

ESA poses a significant and unwarranted risk.’’ Page 2, http://tongasslowdown.org/

TL/docs/AWCP%20Sealaska%20letter%20final.pdf.

Given that former Directors of the Alaska Department of Fish and Game originally raised an alarm about this ESA issue, Congress should disregard any back 

peddling on the issue by the USFS this year after sharing the same concerns last 

year. With 75 years of collectively managing wildlife on the Tongass, they wrote:

‘‘If these reserves are conveyed to Sealaska by Congress it will almost certainly lead 

to a new petition to list the goshawk and wolf as endangered species and the distinct 

possibility that they will be so designated.’’ Page 1

These former ADFG Directors of Wildlife Management called for a careful assessment of the impact of the Sealaska selections on the wolf and goshawk. I do not 

believe the USFS has conducted such a rigorous assessment. Certainly, the USFS 

has not released a assessment into the record to ally the concerns of these wildlife 

officials. Page 3, http://tongasslowdown.org/TL/docs/

sealaska%20leg%20MURKOWSKI.pdf. 

Two years ago the Undersecretary of Agriculture for Natural Resources, Harris 

Sherman, shared the very same concerns as the former officials of the ADFG when 

he testified:

59

‘‘. . . land selections as proposed in S. 730 will decrease the effectiveness of the 

Tongass’ conservation strategy and could hamper the plan’s ability to maintain viable populations of plant and wildlife species. This could lead to the need for USFWS 

to reconsider its previous determinations regarding the goshawk and gray wolf (not 

to list).’’ Page 4, http://tongasslowdown.org/TL/docs/

ShermanTestimonyonS730052511.pdf. 

During the Senate hearing last month, an Associate Director of the USFS asserted that the ESA listing is not a problem. Let the record show that there are 

no studies the USFS has submitted for the record to back up his assertion. 

Were this ESA issue not a problem, organizations representing up to 5 million 

Americans, as diverse as the Wildlife Management Institute to Audubon to the Dallas Safari Club would not be all telling Congress, take notice. They are stating that 

the ESA listing for the wolf and goshawk is a problem and don’t pass the Sealaska 

Lands Bill. 

Job Losses Would Follow an ESA Listing 

With ESA listings, logging on the Tongass will be drastically reduced. Job loss to 

loggers, saw mill workers, and support persons would result. 

This Bill is supposed to protect jobs but it has the clear possibility of destroying 

them for the year round Alaska residents in the towns around Prince of Wales who 

depend on a steady supply of logs out of the National Forest, http://

tongasslowdown.org/TL/docs/Senator%20Wyden%20-%20S%20340-Signed.pdf. 

If the ESA listing goes through after this legislation passes, all those Alaskan 

residents in the towns who passionately oppose this legislation may see reductions 

in fish and wildlife numbers which they harvest commercially or as sport. 

Sealaska says all places are precious to someone, so they are OK with the non 

native nine towns and many other businesses and others who use the Tongass to 

bear the lion’s share of pain. Equity and fairness favors the status quo requiring 

Sealaska to take the land they designated in 2008 BLM letter. Equity and fairness 

will not occur from passage of these bills. 

Bad Precedents in This Bill 

Senator Murkowski claimed at the hearing last month that this bill is ‘‘unique’’ 

and all the other corporations told her they would not ask Congress to use this bill 

as precedent when asking for further modification of ANCSA—the final, last, complete settlement for all claims for their lands. 

The statement of a Senator is not legally binding on future Congresses. In fact, 

year after year for over 40 years, there have been many of the 12 regional corporations coming back to Congress for modifications. 

Congress can and does do anything it chooses. 

There are several kinds of precedents which arise out of this legislation. As Harris 

Sherman noted in his testimony May 25, 2011, these are:

• Establishing cultural sites outside of the townships around Native towns; • Establishing economic sites which do not exist in ANCSA; and • Moving the logging from the original townships around Native towns.

Territorial Sportsman described another preemption precedent exits in this bill 

that they believe will remove State of Alaska legal authority to manage wildlife on 

private land. 

BLM’s written statement last month in the Senate stated:

‘‘We note that if S. 340 is enacted other corporations might seek similar 

legislation for the substitution of new lands.’’ Page 2, http://

tongasslowdown.org/TL/docs/BLM%20ConnellFINALS.340SealaskaDOI.pdf.

Nor did Senator Murkowski’s leading questions to BLM dislodge BLM’s statement 

that no one can say absolutely that Congress will not use this legislation as a precedent. 

As the Alaska Outdoor Council noted:

‘‘With hundreds of thousands of acres in ANCSA outstanding claims, and many 

millions of acres in a status of interim conveyance not yet patented, S. 340 is a nightmare for active sportsmen and guides; a virtual Pandora’s Box of new no trespassing 

signs in cherry picked areas across the state. This is a very real threat to sportsmen.’’ 

http://tongasslowdown.org/TL/docs/

Sen.%20John%20Thune%20Chairman%20CSC%20%20R%20SD.pdf.

In effect, the small parcel or economic development sites as well as the cultural 

sites (which gives Sealaska a chance to reopen the 1976 deadline for filing cultural 

60

sites) may select outstanding fishing and hunting sites. The legislation does not tell 

us the location of the cultural sites. This legislation cannot bind future Congresses 

from giving Sealaska many more of the 2000 potential cultural sites affecting all 

other users. 

Today it will be nine selections. Ten years from now . . . ? 

Because these sites will be at the mouths of salmon streams, sportsmen will be 

blocked from access. Because the locations are not listed in the bill, the public cannot scrutinize the impact of their locations. Numerous fishing and hunting operations will be severely impacted by this precedent and no one I have spoken to believes this is the final request for more. The history of ANCSA has seen claims of 

‘‘this is the final unique request’’ yield to another request years later. 

Pandora’s Box must remain closed. The framers of ANCSA were wise and just to 

preclude such an outcome. 

Preemption Precedent 

I have known Mr. Young a long time and know he bristles at the idea that the 

Federal Government can preempt State of Alaska Management of wildlife. As the 

Territorial Sportsmen noted after consulting with several lawyers in Juneau:

‘‘The provision in this bill [in section 4 (e)(1)] which applies the subsistence definition found in Title 8 of ANILCA over private land in Alaska is unprecedented.’’

March 2, 2013 letter, Page 2, http://tongasslowdown.org/TL/docs/

TS_BLM_Letter_03-21-13.pdf.

For the first time, this legislation would apply ANILCA to the private property 

of Sealaska in Alaska. While H.R. 740 applies only to Sealaska’s selections, precedent is set for all private land to have Federal management of wildlife resources. 

This conclusion is based I am told on consultation with leading lawyers in Alaska. 

Has Mr. Young read this section of H.R. 740 or the Territorial’s letter or has he 

failed to see the far reaching and divisive consequences of this grand-daddy of all 

precedents? 

The preemption provision alone is grounds for Mr. Young to withdraw his sponsorship of this bill. Certainly the 1,600 members of the Territorial Sportsman are 

ringing the alarm bells on this provision. 

Territorial Sportsmen is opposed to the easement provisions as outlined on page 

2 of their letter to Senator Wyden this year. 

Edna Bay 

I received a notice on the eve of my flying back here that Edna Bay held a town 

meeting and voted to have me represent them before you. This is a town of loggers, 

lodge owners, fishermen, and retirees who were loggers. I know the postmistress is 

from a third generation logging family. I am humbled they held a meeting to give 

me this honor. 

The logging on their island was quite intense in the 1940s and 1950s. Giant 

spruce went out to the world. There are still a few large stands of giant trees there, 

one of the best growing locations on the Tongass. Sealaska wants to take those remaining large stands and it will all be gone in a few years at the pace of cutting 

that has gone on in the past. 

Under the Forest Service plan, trees would be cut at a sustainable rate. Under 

a Sealaska ownership based on the pace of past logging, many in the town expect 

a boom and bust cycle that lasts a few years and illustrates most perfectly how this 

bill will kill the jobs of hard working woodsmen, saw mill operators, and most likely 

the nascent tourism operations based on sports fishing and whale watching. 

I’d like all of you to ask yourself this question. Do the deeply held grievances 

about lands claims we hear from Sealaska justify uprooting businesses and jobs not 

only in the nine towns but also the rest of SE Alaska? What happens in these small 

town when you lose the school or post office? 

This impact on the hard working people in Edna Bay is and the other eight towns 

and all of the sportsmen and business in SE Alaska who rely on healthy wildlife 

and access to these areas is unfair and unjust. 

Mr. YOUNG. Thank you, Jimmie. 

Mr. Ned Norris. 

And you are excused if you would like to go. It is up to you. 

61

Mr. ROSENBRUCH. Thank you very much for accommodating me 

earlier. I would be delighted to sit here. I have got an hour and 

a half before I have got to be there, and I would stay here. 

Mr. YOUNG. OK. 

Mr. ROSENBRUCH. I appreciate that. Thank you. 

Mr. YOUNG. Mr. Ned Norris. 

STATEMENT OF THE HON. NED NORRIS, JR., CHAIRMAN, 

TOHONO O’ODHAM NATION 

Mr. NORRIS. Mr. Chairman, before I start my time, I do not want 

to sit here and blame you for the misspell of my first name on the 

name tag over here. 

Mr. YOUNG. Bless you, bless you. Some other body made a mistake. 

[Laughter.] 

Mr. NORRIS. It says Ted Norris here, but you named it correctly, 

Ned Norris. 

Mr. YOUNG. It is Ned, is it not? OK. 

Mr. NORRIS. Good afternoon, Chairman Young, Ranking Member 

Hanabusa, and distinguished members of the Subcommittee on 

Indian and Alaska Native Affairs. 

My name is Ned Norris, Jr., and I am the Chairman of the 

Tohono O’odham Nation. I thank you for allowing me to testify 

today on H.R. 1410. I ask that my written statement be entered 

into the record. 

Mr. YOUNG. Without objection, so ordered. 

Mr. NORRIS. Thank you, sir. 

In the late 1950s, the U.S. Army Corps of Engineers built the 

dam which flooded nearly the entire remaining 10,000 acres of Nation’s Gila Bend Indian Reservation. Our members who live there 

had to be evacuated and crowded into a small, 40 acre parcel of 

land known as San Lucy Village, where they still live today. 

In 1986, the U.S. Congress enacted Federal legislation to settle 

the nation’s land and water rights claims which stemmed from the 

Corps’ unauthorized flooding and destruction of our land. In this 

settlement legislation, which is called the Gila Bend Indian Reservation Lands Replacement Act, or Public Law 99–503, the United 

States made a solemn commitment to compensate the nation for 

the destruction of our land. The compensation included a solemn 

promise that the Nation would be able to acquire new land to replace the destroyed land, and a solemn promise that the new land 

would be treated, and I quote from the statute, ‘‘as a Federal 

Indian reservation for all purposes.’’

This last promise was important to us since we needed replacement land that would have the same legal status as our destroyed 

land. In 2003, the State of Arizona also made a promise to the 

Tohono O’odham Nation when it entered into a tribal State gaming 

compact with the nation. 

The nation negotiated that compact in good faith, and the terms 

of that compact are clear on their face. The compact allows the nation to conduct gaming on land that meets the requirements of the 

Indian Gaming Regulatory Act, IGRA. IGRA expressly allows tribes 

to conduct gaming on lands acquired as part of a settlement of a 

land claim. 

62

Both the Department of the Interior and the Federal District 

Court of Arizona have confirmed that the land the nation acquires 

under its 1986 settlement statute is land acquired as a part of a 

settlement of land claim, as defined by IGRA. 

In 2012, the House of Representatives at the behest of the State 

of Arizona passed H.R. 2938. Its sole purpose was to prevent the 

nation from conducting gaming on replacement land located within 

a certain portion of Maricopa County, even though our 1986 Act allowed us to acquire replacement land in Maricopa County and even 

though it was allowed under our Tribal State Gaming Compact. 

If it had been enacted by the full Congress, H.R. 2938 would 

have broken both the United States’ 1986 Federal Settlement Act 

promise and the State of Arizona’s 2003 State Gaming Compact 

promise. 

In 2013, the sponsors of H.R. 1410 are back with the new version 

of last year’s bill. This bill clothed in new language to make it appear as if it is a law of general applicability, in fact, is solely applicable to the Tohono O’odham Nation. If enacted, H.R. 1410 will 

break the promises explicitly made by the United States in 1986 

and explicitly made by the State of Arizona in 2003. 

The proponents of H.R. 1410 insist that it is necessary to force 

the nation to live up to an alleged promise not to game in the 

greater Phoenix area, but there was never such a promise. 

Let us understand what H.R. 1410 really is: special interest legislation which would create a non-competition zone for the Gila 

River Indian Community and the Salt River Indian Community, 

two wealthy tribes which now share a monopoly in one of the largest gaming markets in the United States. 

The claims that the proponents of H.R. 1410 have used to justify 

this bill have been litigated and rejected by the Federal courts on 

their merits not because the nation asserted sovereign immunity. 

The district court and Ninth Circuit held on the merits that the 

land the nation acquired under its settlement statute met the requirements of that statute. The District Court held on the merits 

that the nation’s land was eligible for gaming under the Indian 

Gaming Regulatory Act, and the District Court held on the merits 

and not on sovereign immunity grounds that the tribal State gaming compact does not bar the nation from gaming in the Phoenix 

area. 

The court examined every bit of the plaintiffs’ evidence, construed it in the light most favorable to the plaintiffs and still concluded that the plaintiffs’ interpretation of the compact is entirely 

unreasonable. None of these conclusions were based in any way on 

the nation’s sovereign immunity. 

H.R. 1410 is an ugly black mark on the United States and the 

State of Arizona’s long relationship with the Tohono O’odham Nation. It is a return to the 19th century practice of breaking promises to Indian tribes when it is convenient for a non-Indian interest, but with a new twist. Now the United States is considering 

breaking the solemn commitments it and the State of Arizona 

made to my people to protect the monopoly of a couple of wealthy 

tribes. 

The title of the bill, the Keep the Promise Act, is deeply offensive 

to my nation, as is obvious from every single Federal and State 

63

Court decision, rejecting the arguments of the State and these two 

tribes. The Tohono O’odham Nation has followed applicable Federal 

and State law, and there are no loopholes, and yet the title of this 

proposed legislation suggests that I and my people are liars and 

cheats. 

As the great Supreme Court Justice Hugo Black famously said, 

‘‘Great nations like great men, should keep their word.’’ With all 

due respect, I am asking the United States to be a great nation and 

to keep its word to the people of the Tohono O’odham Nation. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Norris follows:]

PREPARED STATEMENT OF THE HONORABLE NED NORRIS, JR., CHAIRMAN, THE

TOHONO O’ODHAM NATION OF ARIZONA, ON H.R. 1410

Chairman Young, Ranking Member Hanabusa, and distinguished members of the 

Subcommittee on Indian and Alaska Native Affairs, my name is Ned Norris, Jr. I 

am the Chairman of the Tohono O’odham Nation. I want to thank you for the opportunity to testify today on H.R. 1410, legislation offensively entitled the ‘‘Keep the 

Promise Act of 2013’’. 

Following is the testimony of the Tohono O’odham Nation. I ask that it be entered 

into the record. We respectfully request that the full text of the following federal 

court decisions also be entered into the record: Gila River Indian Community, et al.

v. United States and Tohono O’odham Nation, 776 F.Supp.2d 977 (D. Ariz. 2011); 

aff’d, 697 F.3d (9thCir. 2012); Gila River Indian Community et al. v. Tohono 

O’odham Nation, No. 11–cv–296–DGC (Order dated May 7, 2013) 

Executive Summary—A Long History of Broken Promises to the Nation

In 1986 the United States made a promise to the Tohono O’odham Nation when 

Congress enacted land and water rights settlement legislation, the Gila Bend Indian 

Reservation Lands Replacement Act, Pub. L. 99–503 (Lands Replacement Act)—legislation that the Department of the Interior has described as ‘‘akin to a treaty.’’ 

Tohono O’odham Nation v. Acting Phoenix Area Director, Bureau of Indian Affairs,

22 IBIA 220, 233 (1992). This settlement legislation was intended to compensate the 

nation for the Army Corps of Engineers’ unauthorized destruction of the nation’s 

Gila Bend Indian Reservation. Among other things, the United States promised in 

that settlement legislation that the nation could acquire new reservation land in 

Maricopa County to replace its destroyed Gila Bend Reservation land (which also 

was located in Maricopa County). The United States also promised that the new 

land would be treated as a reservation for all purposes. 

In 2003 the State of Arizona made a promise to the Tohono O’odham Nation when 

it entered into a tribal-state gaming compact with the nation. The nation negotiated 

that compact in good faith and the terms of that Compact are clear on their face. 

The Compact allows the nation to conduct gaming on land that meets the requirements of the Indian Gaming Regulatory Act (IGRA). IGRA expressly allows tribes 

to conduct gaming on land acquired as part of the settlement of a land claim. Both 

the Department of the Interior and the Federal District Court of Arizona have confirmed that the land the nation acquires under its 1986 settlement statute is land 

acquired as part of the settlement of a land claim as defined by IGRA. 

In 2012, the House of Representatives, at the behest of the State of Arizona and 

two extraordinarily wealthy Indian tribes, passed H.R. 2938, legislation that, if it 

had been enacted by the full Congress, would have broken both the United States’ 

1986 Federal settlement act promise and the State of Arizona’s 2003 tribal-State 

gaming compact promise to the nation because its sole purpose was to prevent the 

nation from conducting gaming on replacement land located within a certain portion 

of Maricopa County. 

In 2013, the sponsors of H.R. 1410 are back with a new version of H.R. 2938. This 

bill, clothed in new language to make it appear as if it is a law of general applicability, in fact is effectively applicable only to the Tohono O’odham Nation. H.R. 1410, 

if enacted, will break the United States’ 1986 promise to the nation and break the 

State’s 2003 promise to the nation. Like last year’s bill, H.R. 1410 is special interest 

legislation which would create a no-competition zone for the wealthy tribes, including the Salt River Indian Community, which now have a monopoly on one of the 

largest gaming markets in the United States. 

64

Every allegation that has been made about my nation, every falsehood and every 

accusation about the integrity of how the nation has conducted itself in the pursuit 

of its replacement lands has been soundly rejected by the Federal courts. These 

courts have considered all the evidence—thousands of pages of deposition testimony 

and thousands of pages of contemporaneous documents—and they have concluded, 

over and over and over again, that the nation has at all times acted in accordance 

with the law. And, most importantly for the purposes for which we are gathered together here today, the Federal district court for the District of Arizona has ruled 

that the ‘‘promise’’ on which H.R. 1410 is predicated simply did not exist. With these 

court decisions, the lies and slander about my nation must now stop. 

H.R. 1410 is an ugly black mark on the United States’ and the State of Arizona’s 

long relationship with the Tohono O’odham Nation. It is a return to the 19th century practice of breaking promises to Indian tribes when it is convenient for a nonIndian interest—but with a new twist. Now the United States is considering breaking the solemn commitments it and the State of Arizona made to my people to protect the monopoly of a couple of wealthy tribes. 

As is obvious from every single Federal court decision rejecting the arguments of 

the State and the wealthy tribes, the Tohono O’odham Nation has followed applicable Federal and State law every step of the way. Yet the sponsors of this legislation 

have entitled the bill the ‘‘Keep the Promise Act’’. This title suggests that I, and 

the Tohono O’odham people, are liars and cheats. We are deeply offended by this. 

As the great Supreme Court Justice Hugo Black famously said in Federal Power 

Commission v. Tuscarora Indian Nation, ‘‘Great nations, like great men, should 

keep their word.’’ With all due respect, I am asking the United States to be a great 

nation, and to keep its word to the Tohono O’odham. And I am asking the Gila 

River Indian Community, the Salt River Indian Community, and the State of Arizona to stop, finally, the cruel and dishonorable campaign of lies and misinformation 

which has caused so much harm to the Tohono O’odham Nation, and so much harm 

to the people of the West Valley who have waited for so long for the new economic 

development and the new jobs which the nation has been prevented from creating. 

A Federal Court has Confirmed That the Nation’s Tribal-State Gaming 

Compact Allows it To Operate a Gaming Facility in Phoenix

‘‘[N]o reasonable reading of the Compact could lead a person to conclude that it 

prohibited new casinos in the Phoenix area.’’ Gila River Indian Community et al.

v. Tohono O’odham Nation, No. 11–cv–296–DGC (Order dated May 7, 2013) at 25. 

The nation first entered into a gaming compact with the State of Arizona in 1993. 

The nation’s compact confirmed the nation’s right to conduct Class III gaming pursuant to IGRA, anywhere on the nation’s Indian Lands, including land acquired as 

part of a settlement of a land claim under IGRA’s Section 20 exception to the general prohibition on gaming on after-acquired land, 1993 Tohono O’odham-State of 

Arizona Gaming Compact, §§ 2(s) and 3(f). This confirmation of the nation’s rights 

was reached after the nation explicitly advised the State’s gaming negotiators that 

it had the right to acquire ‘‘up to 9,880 acres of additional trust land’’ under the 

Lands Replacement Act, and that ‘‘[n]ot all of the land has been purchased yet, so 

there is a possibility of additional trust land to be acquired.’’ 7/15/92 Tohono/Arizona 

Reps. Mtg. Tr. at 3. The State was thus fully aware of the nation’s rights to game 

on land to be acquired in Pima, Pinal, or Maricopa Counties under the Lands Replacement Act. 

The initial terms of the 1993 tribal-State gaming compacts were set to expire in 

2003. Accordingly, in 1999 the tribes began to negotiate among themselves and with 

the State for a new gaming compact. The resulting 2003 tribal-State gaming compacts (authorized via State Proposition 202 at A.R.S. § 5–601.02(A)) import virtually 

the same language as in the 1993 compacts concerning the tribes’ rights to conduct 

Class III gaming on Indian lands: 

SECTION 3. NATURE, SIZE AND CONDUCT OF CLASS III GAMING 

(j) Location of Gaming Facility.

(1) All Gaming Facilities shall be located on the Indian Lands of the tribe. 

All Gaming Facilities of the tribe shall be located not less than one and 

one-half (11⁄2) miles apart unless the configuration of the Indian Lands of 

the tribe makes this requirement impracticable. The tribe shall notify the 

State Gaming Agency of the physical location of any Gaming Facility a minimum of thirty (30) days prior to commencing Gaming Activities at such location. Gaming Activity on lands acquired after the enactment of the 

65

Act on October 17, 1988 shall be authorized only in accordance with 

25 U.S.C. § 2719.

Tribal-State Compact, § 3; A.R.S. § 5–601.02(I)(6)(b)(iii) (emphasis added).

As recently confirmed by the Federal district court for the District of Arizona in 

litigation brought by H.R. 1410’s proponents, land acquired under the Lands Replacement Act qualifies as lands acquired as part of the settlement of a land claim 

under IGRA’s section 20 exception and under Section 3(j)(1) of the Compact. Gila 

River Indian Community et al. v. Tohono O’odham Nation, No. 11–cv–296–DGC 

(Order dated May 7, 2013) at 7. The court further held that the Compact ‘‘does not 

prohibit the nation from building a new casino in the Phoenix area.’’ Id. at 2. 

Federal and State Courts Have Confirmed That the Nation’s Land Meets 

Both the Requirements of the Gila Bend Indian Reservation Lands Replacement Act and the Indian Gaming Regulatory Act

In July 2010, the Secretary of the Interior determined, despite lengthy arguments 

submitted in opposition by the City of Glendale and the Gila River Indian Community, that the nation’s land meets the requirements of the Lands Replacement Act 

and that the Secretary has an obligation to take the land in trust. Accordingly the 

Secretary issued a decision to take the land in trust in August of 2010. 75 Fed. Reg. 

52,550 (Aug. 26, 2010). The Gila River Indian Community, the City of Glendale, and 

other plaintiffs challenged the decision in Federal district court in Arizona, but both 

the district court and the Ninth Circuit Court of Appeals upheld the Secretary’s decision. Gila River Indian Community, et al. v. United States and Tohono O’odham 

Nation, 776 F.Supp.2d 977 (D. Ariz. 2011); aff’d, 697 F.3d (9thCir. 2012). The plaintiffs continue to press their appeals. 

Having failed to convince either the Secretary, the Federal district court, or the 

Ninth Circuit Court of Appeals that the nation was not entitled to have its West 

Valley property taken into trust, the City of Glendale and the Gila River Indian 

Community lobbied the Arizona State legislature for special legislation to allow the 

City of Glendale to annex the nation’s land—without notice and without any of the 

procedural requirements usually required for annexation under Arizona law—hoping that annexation would make the land ineligible for trust status under the Lands 

Replacement Act. The nation challenged that State law, and the Federal district 

court in Arizona ruled for the nation. Despite the fact that the State legislation did 

not mention the nation, the Lands Replacement Act, or the nation’s West Valley 

property by name, the Court found that the law’s ‘‘clear purpose and effect would 

be to block [the Department of the Interior] from taking the land into trust, contrary 

to the express command of Congress.’’ Tohono O’odham Nation v. City of Glendale 

and State of Arizona, No. 11–cv–279–DGC (D. Ariz.) (Order dated June 30, 2011) 

at 15. The City of Glendale and the State of Arizona also have appealed that decision to the Ninth Circuit and the appeal is pending. 

Undaunted, the Gila River Indian Community, joined by the Salt River Pima 

Maricopa Indian Community and the State of Arizona’s Attorney General, again 

brought suit in district court, this time challenging the eligibility of the nation’s 

West Valley property for gaming. Gila River Indian Community et al. v. Tohono 

O’odham Nation, No. 11–cv–296–DGC. Following a lengthy and voluminous discovery process, the nation’s opponents were again rebuffed by the district court, 

which on May 7, 2013 ruled that the nation’s West Valley land is indeed eligible 

for gaming under the nation’s Compact as land acquired in trust as part of a land 

claim settlement under IGRA. Gila River Indian Community et al. v. Tohono 

O’odham Nation, No. 11–cv–296–DGC (Order dated May 7, 2013) at 25. 

Discovery in this litigation has in fact revealed that, not only was there no agreement concerning a limitation on gaming in the Phoenix area, but the 17 Arizona 

tribes that negotiated the compacts rejected such a prohibition, leaving the terms 

of the tribal-State gaming compacts to govern this issue. As explained by witnesses 

who are not aligned with either side of the litigation, the concept of ‘‘no new casinos 

in Phoenix’’ was simply never a theme or a deal point in the negotiations over the 

gaming compacts and Proposition 202:

• W.M. Smith Dep. 32 (Cocopah Tribe representative) ‘‘Q. Do you recall the concept of no new casinos in Phoenix ever being broached in the negotiations? A. 

No.’’

• Clapham Dep. 35–36 (Navajo Nation representative) ‘‘Q. There was not a single 

event, to the best of your recollection, that could constitute a request for a tribe 

to waive its rights to build a casino in the Phoenix area? A. There were discussions about reducing the number of authorized facilities in exchange for transfer 

66

of machine rights. But I don’t remember any specific request to deal with not 

putting another facility in Phoenix.’’). 

• Ochoa Dep. 25 (Yavapai Prescott Tribe representative) ‘‘Q. So until this lawsuit 

came about, though, you had never heard anybody talking about how Prop 202 

would permit no new casinos in the Phoenix area and only one in Tucson? A. 

Absolutely not. No. It wasn’t discussed at the meetings I attended.’’

In fact, when presented with proposals by the representatives of the State and 

the Gila River Indian Community to include a provision in the compacts to prohibit 

gaming on after-acquired lands, the tribes universally rejected these proposals, allowing the compacts terms to govern. 

What is more, discovery has revealed that representatives of the Gila River Indian Community, the Salt River Pima Maricopa Indian Community, and the State 

each were aware of the nation’s rights to conduct gaming on Lands Replacement Act 

lands, and had expressed no objection to the nation’s rights. As noted above, negotiation sessions during the 1993 gaming compact negotiations revealed that the nation explicitly informed the State about its rights under the Act and its ability to 

acquire new land in Pima, Pinal, and Maricopa Counties. Later, during the mid1990s, a representative of the nation similarly informed the former president of the 

Salt River Pima-Maricopa Indian Community (and key 2002 compact negotiator) of 

the Lands Replacement Act and the nation’s right to conduct gaming on land acquired under the Lands Replacement Act and in 2001, one of the Gila River Indian 

Community’s compact negotiators was presented with a copy of a tribal council resolution from the nation describing the nation’s rights under the Lands Replacement 

Act. 

In short, the litigation and all related court decisions have fully supported the Department of the Interior’s decision to acquire in trust the nation’s West Valley land 

under the Lands Replacement Act, as well as the nation’s right to conduct gaming 

on that land under IGRA and its tribal-State gaming compact, and have rejected 

the claims of the proponents of H.R. 1410. 

Enactment of H.R. 1410 Exposes the United States to New Liabilities

H.R. 1410 deprives the nation of rights it has under its land and water rights settlement act, IGRA and its tribal-state gaming compact—rights that have been confirmed by the courts. Interference with these rights will have real consequences for 

the United States and ordinary taxpayers in terms of creating substantial liability 

for the breach of contract, takings claims, and water rights claims that the nation 

will have against the United States for breaching the settlement agreement entered 

into under the Lands Replacement Act. Accordingly, there is no question that enactment of H.R. 1410 effectively will put American taxpayers in the position of subsidizing the monopoly achieved by the Gila River Indian Community and the Salt 

River Indian Community. 

Enactment of H.R. 1410 Will Cause Real Harm to the Tohono O’odham 

Nation

In addition to the injustice of changing the law enacted to compensate the nation 

and on which the nation has relied in acquiring land for gaming-related economic 

development, the enactment of H.R. 1410 would have a devastating effect on the 

Tohono O’odham Nation and its people. More than 32 percent of the nation’s households have annual incomes less than $10,000, over 46 percent of the nation’s families live below the poverty line, and there is a greater than 21 percent unemployment rate among tribal members on the reservation. The nation has devoted an 

enormous amount of time and financial resources to its West Valley project in reliance on existing Federal law; if H.R. 1410 is enacted, all the effort and resources 

the nation has invested to reduce its dependence on Federal monies and to become 

self-sufficient, as Congress intended in the Lands Replacement Act, would be wasted. 

H.R. 1410 Will Cause Real Harm to the West Valley—It is Job-Killer 

Legislation

Enactment of H.R. 1410 would kill off 9,000 new construction and operation jobs 

for the West Valley, as well as countless thousands of other jobs that would result 

from new local spending generated by both the resort and the people who work 

there. If Congress takes affirmative action to prevent this non-taxpayer funded economic stimulus from becoming a reality, Congress effectively withholds these thousands of jobs from West Valley residents. 

67

CONCLUSION

Mr. Chairman and Subcommittee members, I thank you again for giving me an 

opportunity to speak to this Subcommittee on this legislation. In sum, I must reiterate that enactment of H.R. 1410 would break the United States’ promise, as that 

promise was set forth in a contract and in settlement legislation, to compensate the 

nation for the destruction of the Gila Bend Indian Reservation. Enactment of 

H.R. 1410 also would interfere with the express contract terms to which the nation 

and the State of Arizona agreed when we entered into our tribal-state gaming compact. And enactment of H.R. 1410 flies in the face of several Federal court decisions 

which have resolved, in the nation’s favor, the allegations that have been wrongly 

made against the nation. 

But it is not just the nation that will be adversely affected by enactment of 

H.R. 1410. This legislation will prevent the creation of 9,000 new jobs for the West 

Valley area. Enactment of H.R. 1410 will also create new breach of contract, takings 

claims, and water rights claims against the United States, thereby exposing American taxpayers to unnecessary financial risk. And finally, enactment of H.R. 1410 

would add yet another black mark to the United States’ long history of breaking 

its promises to Native Americans. This Subcommittee should uphold the United 

States’ promise to the nation, reject H.R. 1410, and let the ongoing litigation run 

its course. 

I thank you for your time today, and I would be happy to answer any questions 

you may have. 

APPENDIX—Background on the Flooding and Destruction of the Gila Bend 

Indian Reservation and the Lands Replacement Act

The Tohono O’odham Nation has approximately 30,000 members. Our reservation 

lands are located in central and southern Arizona in three counties—Maricopa 

County, Pinal County, and Pima County. Historically, the nation’s lands included 

four separate areas, one of which was known as the Gila Bend Indian Reservation. 

Originally comprising 22,400 acres located on the Gila River near the town of Gila 

Bend in Maricopa County, the Gila Bend Indian Reservation was created for the nation in 1883. Then known as the Papago, the nation’s Gila Bend Indian Reservation 

residents lived along the banks of the Gila River for centuries; extensive ruins located on the reservation date to about 500 A.D. 

The sad and shameful history of the United States’ treatment of the Gila Bend 

Indian Reservation and its members is well documented in the House Report accompanying the Lands Replacement Act, H.R. Rep. 99–851 (September 19, 1986). In 

1909, by Executive Order, the United States cut the Gila Bend reservation nearly 

in half and deprived the nation’s members of access to much of their fertile agricultural lands in the Gila River basin. Id. at 4. Despite these setbacks, the nation’s 

members persevered, maintaining, in the words of a 1949 Department of the Interior report, a ‘‘precarious livelihood from subsistence farming, small cattle enterprises, woodcutting, and increasingly from seasonal off-reservation employment at 

low wages.’’ Id. The Department’s report, the ‘‘Papago Development Program,’’ recommended the development of irrigated agriculture for the nation’s members, including 1,200 acres for the nations’ Gila Bend Reservation. Id. Instead of seeing 

these plans come to fruition, the Secretary of the Interior signed a letter to the U.S. 

Corps of Engineers expressing no objection to the Corps’ proposal to construct the 

Painted Rock Dam on the Gila River to provide flood protection for nearby non-Indian agricultural operations. The Secretary’s letter failed to make any mention of 

the Gila Bend Reservation or the dam’s potential effect on the reservation. Id. Less 

than a year following the forgotten Papago Development Program report, Congress 

enacted the Flood Control Act, Pub. L. 81–516, 64 Stat. 176 (1950), authorizing the 

construction of the Painted Rock dam. Id. As Congress and the Department of the 

Interior later recognized, the Flood Control Act of 1950 did not authorize the flooding or condemnation of the nation’s lands. 

Nevertheless, in the 1950s, the U.S. Army Corps of Engineers began construction 

of the Painted Rock Dam 10 miles downstream from the Gila Bend Indian Reservation. Construction was completed in 1960. Despite the Bureau of Indian Affairs’ and 

the Corps’ repeated promises that periodic flooding caused by the dam would not 

harm the nation’s agricultural use of its reservation lands, and despite a 1963 U.S. 

Geological Survey report asserting that the long range effects of flooding would be 

‘‘unimportant,’’ the Gila Bend Indian Reservation sustained almost continual flooding throughout the late 1970s and early 1980s. Id, at 5. Most of the nation’s members living there had to be relocated to a small 40-acre village known as San Lucy. 

Id. The flooding caused pronounced economic hardship, destroying a 750-acre tribVerDate 0ct 09 2002 15:12 May 16, 2014 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6621 X:\03INDI~1\03MY16~1\5-16-1~1\80981.TXT MARK
68

ally owned and operated farm that had been developed at tribal expense, and rendering the remaining acreage unusable for economic development. Id. at 5–6. 

In 1982, pursuant to the Southern Arizona Water Rights Settlement Act 

(SAWRSA), Pub. L. No. 97–293, 97 Stat. 1274, Congress instructed the Secretary 

of the Interior to conduct studies to determine which of the nation’s lands had been 

rendered unusable for agriculture. Congress also authorized the Secretary, with the 

consent of the nation, to exchange public domain lands for those reservation lands 

that had been ruined. H.R. Rep. No. 99–851 at 6. A study of the reservation lands 

carried out in 1983 under SAWRSA determined that the flooding had rendered almost the entire Gila Bend Indian Reservation, nearly 10,000 acres, unusable for either agriculture or livestock grazing purposes. Id. A later 1986 study to identify replacement lands within a 100-mile radius of the reservation concluded that none of 

the sites identified were suitable replacement lands, from either a lands and water 

resources or a socio-economic standpoint. Id.

The destruction of nearly 10,000 acres of the nation’s lands gave rise to a number 

of land and water rights claims against the United States. The House Report accompanying the Lands Replacement Act detailed some of these claims: 

The tribe has pursued a legislative remedy to its urgent dilemma at Gila Bend 

rather than litigation on a variety of potential legal claims against the United 

States. Such actions could include claims for the taking of tribal trust lands by condemnation without express authority from Congress; for payment of unjust compensation for the flowage easement; for damages to their land and water resources 

resulting from construction of both Painted Rock Dam and Gillespie Dam and other 

dams upstream; and for breach of trust for failure to prosecute claims against third 

parties for damages to their land and water resources. 

H.R. Rep. No 99–851 at 7. Congress also recognized that the nation’s water rights 

claims to the surface and underground flow of the Gila River comprised a significant 

component of these claims that could amount to more than 30,000 acre-feet with an 

1882 priority date, and that damage claims against the United States and third parties could be in excess of $100,000,000 (in 1986 dollars). Id. at 6–7. Indeed, the following year, the United States filed a claim in the Gila River Stream Adjudication 

on behalf of the nation and its destroyed Gila Bend Indian Reservation for nearly 

36,000 acre-feet of water. See Statement of Claimant United States on Behalf of the 

Gila Bend Indian Reservation, Tohono O’odham Nation, No. 39–35090 (January 20, 

1987). 

The United States was unable to redress the harm to the nation by providing replacement lands for agriculture. So, in 1986, more than a quarter century after the 

dam was built, Congress created an alternative settlement mechanism to address 

the wrong done to our people and to settle our claims against the Federal Government. That was the origin of the Gila Bend Indian Reservation Lands Replacement 

Act. 

The House Committee considering enactment of the Lands Replacement Act concluded that the nation had a reservation ‘‘which for all practical purposes cannot 

be used to provide any kind of sustaining economy. Significant opportunities for employment or economic development in the town of Gila Bend . . . simply do not 

exist.’’ H.R. Rep. No. 99–851 at 7. As a result, Congress explicitly directed the Secretary of the Interior in the Lands Replacement Act to accept into trust the same 

number of acres that had been taken from us, and explicitly contemplated that the 

lands would be for non-agricultural development. Congress specifically stated in the 

Act that the intent was to ‘‘facilitate replacement of reservation lands with lands 

suitable for sustained economic use which is not principally farming.’’ Pub. L. 99–

503, sec. 2(4); see also H.R. Rep. No. 99–851 at 9. 

The Lands Replacement Act provides funds for land acquisition, and if certain requirements are met, it directs the Secretary to accept into trust up to 9,880 acres 

of replacement land within the three counties (Pima, Pinal, and Maricopa) in which 

our other reservation lands are located. Pub. L. 99–503, sec. 6(c) and (d). The lands 

may not be incorporated into any city or town. Also, the lands must consist of no 

more than three areas of contiguous tracts, including one area contiguous to San 

Lucy Village, unless the Secretary waives this requirement. Pub. L. 99–503, sec. 

6(d). If these statutory requirements are met, then, at the request of the nation, the 

Secretary of the Interior must accept the lands in trust and the lands thereafter will 

be ‘‘deemed to be a Federal Indian Reservation for all purposes.’’ Pub. L. 99–503, 

sec. 6(d). 

Section 4(a) of the Lands Replacement Act required the Secretary to pay the nation $30 million in three installments of $10 million if the nation agreed to assign 

to the United States ‘‘all right, title and interest’’ to 9,880 acres of its land within 

the Gila Bend Indian Reservation. The act also required the nation to execute a 

waiver and release of ‘‘any and all claims of water rights or injuries to land or water 

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rights with respect to all lands of the Gila Bend Indian Reservation from time immemorial to the date of the execution by the nation’’ of that waiver. Pub. L. 99–

503, sec. 9(a). In October 1987, less than a year after enactment of the Lands Replacement Act, the nation executed an agreement that contained this waiver and 

release, as well as the nation’s assignment of all right, title, and interest to the Gila 

Bend Indian Reservation. 

In short, Congress: (i) enacted the Lands Replacement Act to compensate the nation fairly for the nearly 10,000 acres of its lands that were lost due to the flooding 

caused by the Painted Rock Dam, and to allow the nation to acquire replacement 

lands for economic development purposes that were not principally farming; and (ii) 

required in exchange that the nation transfer property and rights to the United 

States and release the nation’s claims against the United States, both of which the 

nation did years ago. 

QUESTIONS SUBMITTED FOR THE RECORD BY THE HONORABLE PAUL A. GOSAR

QUESTIONS SUBMITTED FOR THE RECORD TO THE HONORABLE NED NORRIS, JR. 

Question. You testified that the State of Arizona and other tribes were aware that 

the Tohono O’odham Nation may purchase lands within the ‘‘Phoenix Metropolitan 

Area’’ (as that term is defined in H.R. 1410) pursuant to the 1986 Gila Bend Act 

during the negotiations of the model compact and Proposition 202. If that was the 

case, why did the Tohono O’odham Nation wait approximately seven years before 

having the Glendale lands transferred to you and informing the other tribes of your 

acquisition? Why not have the lands transferred to you in 2004 and inform the other 

tribes at that time? Did Tohono purposefully wait to ensure that the applicable statute of limitations within which to challenge the compact approval would have 

elapsed? 

Answer. The planning and due diligence associated with the filing of an application for trust acquisition are both time-consuming and resource-intensive. The same 

is true for tribal gaming facility projects. In this case, the nation took great care 

in conducting due diligence and preparing its application for the trust acquisition 

of its West Valley property to ensure that the property met the requirements of the 

nation’s land claim settlement act (the Gila Bend Indian Reservation Lands Replacement Act, Pub. L. 99–503), the nation’s tribal-State gaming compact with the 

State of Arizona, and the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq.

(IGRA). A long string of administrative and Federal court decisions have now rejected opponents’ arguments that the nation’s West Valley property may not legally 

be acquired in trust and that gaming on the property would violate the law or the 

tribal-State compact. These decisions demonstrate the wisdom of the nation’s thorough due diligence and preparation. 

The nation does not understand what you mean by your reference to the applicable statute of limitations within which to challenge the compact approval, but notes 

that no claim raised in the legal proceedings to date has been barred by any statute 

of limitations. Moreover, the timing of the nation’s filing of its trust application had 

nothing to do with any statute of limitations or other time period for challenging 

the approval of the nation’s tribal-State gaming compact. 

Question. Has the Tohono O’odham Nation, either directly or indirectly, purchased 

or set aside funds for the purchase of any additional lands (other than the 54 acre 

parcel near Glendale) within the Phoenix Metropolitan Area (as that term is defined 

in H.R. 1410)? 

Answer. It is commonplace for tribes in Arizona and across the country to own 

property outside of their existing reservation boundaries. Indeed, an online search 

of public real estate records reveals numerous parcels of property in the Phoenix 

Metropolitan Area (as defined in H.R. 1410) are owned in fee by various tribes (including the Gila River Indian Community and Salt River Pima-Maricopa Indian 

Community), some of which have existing reservation lands in this area and some 

of which do not. The nation is no exception. The nation’s Economic Development Authority currently owns land in the town of Queen Creek, which is located within the 

Phoenix Metropolitan Area as defined in H.R. 1410, but that property is not eligible 

to be acquired in trust under the nation’s settlement act and could not be eligible 

for gaming. The nation’s West Valley property is the only real property owned by 

the nation (directly or indirectly) in the Phoenix Metropolitan Area (as defined in 

H.R. 1410) that meets the requirements of the nation’s settlement act and, therefore, would be eligible for gaming. As the Subcommittee is aware, the nation’s West 

Valley property comprises 134 contiguous acres, 54 of which are referenced in the 

above question. Other than as noted above, the nation does not own, directly or indiVerDate 0ct 09 2002 15:12 May 16, 2014 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6621 X:\03INDI~1\03MY16~1\5-16-1~1\80981.TXT MARK
70

rectly, any parcel of real property in the Phoenix Metropolitan Area as defined in 

H.R. 1410, nor has the nation, directly or indirectly, set aside funds for the purchase 

of such land. 

Question. Is the 54 acre parcel of land within the former reservation boundaries 

of the Tohono O’odham Nation or any other tribe? 

Answer. The nation’s West Valley property, like its destroyed Gila Bend Indian 

Reservation, is located on the historical lands of the Hohokam, the ancestors of the 

nation, the Gila River Indian Community, the Salt River Pima-Maricopa Indian 

Community, and the Ak Chin Indian Community. Despite their opposition to the nation’s project, both the Gila River Indian Community and the Salt River Pima-Maricopa Indian Community have publicly acknowledged this. Although the Gila River 

Indian Community and the Salt River Pima-Maricopa Indian Community claim that 

the nation’s West Valley property is within their aboriginal territory, under these 

circumstances, the concept of ‘‘aboriginal lands’’ is of limited value among tribes 

with a shared history. For example, the nation’s Gila Bend Indian Reservation also 

was located within what the Gila River Indian Community and the Salt River PimaMaricopa Indian Community claim are ‘‘their’’ aboriginal lands. 

As part of the nation’s settlement with the Federal Government under the Gila 

Bend Indian Reservation Lands Replacement Act, the nation gave up all right, title, 

and interest to 9,880 acres of its flooded and destroyed reservation land. The nation 

thus necessarily had to acquire replacement lands outside the boundaries of its 

former reservation. In accordance with Congress’ explicit instructions for replacement lands, the nation acquired its West Valley property in Maricopa County, the 

same county in which the Nation’s destroyed Gila Bend Indian Reservation was located. As to whether the nation’s West Valley property is located within the former 

reservation boundaries of any other tribes, the nation defers to the Department of 

the Interior, to which the Committee has posed a similar question. 

Question. In your testimony, you state ‘‘the nation negotiated [the tribal-State 

gaming compact] in good faith.’’ Why won’t the nation waive their ‘‘sovereign immunity’’ so that the internal conversations, during the negotiations of the compact and 

during your efforts to convince the Arizona voters to support Prop 202, can be considered as part of evidence to resolve this issue either legally or via the legislative 

process? The failure to do so implies to this body that the nation has something to 

hide. 

Answer. As I have testified, the claims that the nation’s opponents have used to 

justify this bill have been litigated and rejected by the district court on their merits. 

The nation has never contested that IGRA permits the State to bring suit against 

the nation to enjoin Class III gaming activity located on Indian lands and conducted 

in violation of any tribal-State compact that is in effect. The district court considered all of plaintiffs’ arguments and evidence and held on the merits—not on sovereign immunity grounds—that the nation’s land was eligible for gaming under 

IGRA. And the district court held, on the merits—not on sovereign immunity 

grounds—that the tribal-State gaming compact does not bar the nation from gaming 

in the Phoenix area.

The nation takes allegations concerning its integrity very seriously. Far from ‘‘hiding something,’’ the nation has, as part of the court process, willingly participated 

in extensive, expensive, and time-consuming discovery lasting well over a year, including producing more than 130,000 pages of documents and permitting plaintiffs 

to depose every witness they sought—20 in all. The district court examined every 

bit of plaintiffs’ evidence gleaned in discovery, including thousands of pages of the 

‘‘internal conversations’’ referenced in the above question, construed this evidence 

in the light most favorable to plaintiffs, and still concluded that plaintiffs’ interpretation of the compact is ‘‘entirely unreasonable.’’ And the court also concluded, after 

reviewing all of that evidence, that there was no way that an agreement not to 

game in Phoenix would naturally have been omitted from the compact. None of 

these conclusions were based in any way on the nation’s sovereign immunity. The 

nation’s transparency has been amply demonstrated time and time again in this 

process and time and time again, the nation’s actions have been vindicated. 

The district court did hold that sovereign immunity barred plaintiffs’ claim for 

promissory estoppel, because IGRA abrogates tribal sovereign immunity only for 

claims of breach of tribal-State compacts. By definition, promissory estoppel seeks 

to enforce a promise made in the absence of a contract. For that reason, plaintiffs’ 

promissory estoppel claim could not have succeeded on the merits in any event. The 

district court also dismissed plaintiffs’ extracontractual fraudulent inducement and 

material misrepresentation claims as falling outside the scope of IGRA. But none 

of those holdings in any way limited the scope of discovery or prevented the court 

from considering all the evidence that plaintiffs sought to introduce, before holding 

that the parties’ agreement did not bar the nation from gaming in Phoenix. Rather, 

71

the district court’s decision clearly shows that the motivation behind the plaintiffs’ 

claims is the same as the motivation underlying H.R. 1410—a cynical attempt to 

protect the interests of a few wealthy tribes. 

Mr. YOUNG. Thank you, sir. 

And now we will have Ms. Diane Enos, President of Salt River 

Pima Indian Community. 

STATEMENT OF DIANE ENOS, PRESIDENT, SALT RIVER PIMAMARICOPA INDIAN COMMUNITY 

Ms. ENOS. Mr. Chairman and members of the Committee, thank 

you for the opportunity to testify in support of H.R. 1410. 

Again, in 1960, Justice Hugo Black reminded us all ‘‘Great nations like great, men should keep their word.’’ With that solemn reminder in mind, I ask the Committee to focus on three things 

today. 

First, in 2002, 17 Arizona tribes agreed upon a gaming compact 

largely built around the demand of the Arizona Governor: no expansion of gaming, no additional casinos in the Phoenix metro area 

until the compacts expire. 

Second, during compact negotiations, Tohono leadership and its 

representatives repeatedly promised that their fourth unbuilt casino would be in the Tucson market or in a rural location. Tohono 

hid its efforts to buy land in the City of Glendale until 2009. 

Third, the court has not resolved all claims regarding the proper 

interpretation of the compact, and other claims based on fraud and 

misrepresentation have been dismissed not on the merits, but because Tohono raised sovereign immunity. 

In 2011, this Subcommittee held a hearing on H.R. 2938, a bill 

that sought to address the same concerns we bring today. While 

the genesis of both bills is the same, we believe that the bill before 

you today is improved. This bill simply reaffirms the agreement of 

all Arizona tribes reached with the voters of our State that there 

would be no additional casinos in the Phoenix metro area and only 

one additional casino in the Tucson area. This bill also applies to 

Salt River. 

Each Phoenix metro tribe gave up the rights to one unbuilt casino in order to secure the State’s support for all tribes. Tohono 

would not give up its claim to a fourth casino. After the Governor 

and all 17 tribes agreed on the compact, we took it to the voters 

for approval through Proposition 202. 

It should be understood that the proposed gaming land is ancestral to the Pima in Maricopa, not Tohono, and is located about 100 

miles from Tohono’s government center. If you look at your monitors, you will see that the proposed casino would be within a dense 

residential area and directly across the street from Kellis High 

School attended by 963 students. 

Tohono’s proposal twists the law to make the 100-mile journey. 

Senator John McCain said in response to a question about this proposal that when drafting IGRA he did not envision casinos off reservation. He said, ‘‘So now we have case after case of Indian tribes 

parachuting into metropolitan areas and buying up land in metropolitan areas and setting up casinos. That was not the intent of 

IGRA.’’

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The 1986 Gila Bend Act did not contemplate the construction of 

multiple casinos in the Phoenix metro area. Tohono now claims 

that it can do so without State or local government input, despite 

widespread opposition. Who would not understand why a city 

would oppose a casino directly across from a high school? 

The uncomfortable truth is that Tohono’s actions were intentionally hidden from public view. Documents reveal that Tohono 

was actively searching for casino land in west Phoenix during the 

Proposition 202 negotiations using a Delaware shell corporation to 

hide the true ownership of the land and worked to keep its plan 

secret from the State and the 16 other tribes until it filed its land 

inter-trust application in January of 2009. 

Chairman Norris would have you believe that the Governor and 

the 16 tribes knew about Tohono’s secret plans for a Phoenix casino 

and essentially lied to the voters. That is patently false. 

Finally, we are here today because we have no other venue to 

find relief. The courts cannot hear our claims of deception and 

fraud. Congress is the only entity that can provide justice. 

In response to our legal challenge, Tohono continues to shield its 

conduct from scrutiny by asserting its sovereign immunity. On that 

basis alone, the court has dismissed our three claims of fraud, misrepresentation, and promissory estoppel. These claims are directed 

to Tohono’s secret conduct, all of which would be addressed by 

H.R. 1410. In fact, the court recently noted that ‘‘the evidence 

would appear to support a claim for promissory estoppel’’ but for 

Tohono’s claim of sovereign immunity. 

While we respect their political decision to assert sovereign immunity, Congress does not have to sanction the conduct of Tohono 

and should act to preserve Arizona Indian gaming. 

I am not here alone today. Many tribes oppose what Tohono is 

trying to do with all reservation gaming. With me today are elected 

leaders of the Cocopah Tribe, the Hualapai Tribe, Fort McDowell 

Yavapai Nation, Gila River Indian Community, and the Pueblo of 

Zuni. 

Thank you. I look forward to answering any questions that you 

may have, and I respectfully ask that my statements be put into 

the record. 

[The prepared statement of Ms. Enos follows:]

PREPARED STATEMENT OF DIANE ENOS, PRESIDENT, SALT RIVER PIMA-MARICOPA

INDIAN COMMUNITY

H.R. 1410—‘‘THE KEEP THE PROMISE ACT’’

In 1960, Justice Hugo Black reminded us all that, ‘‘Great nations, like great men, 

should keep their word’’. 

EXECUTIVE SUMMARY

The Salt River Pima Maricopa Indian Community (‘‘Community’’) would like to 

thank the bipartisan coalition of Members, Representative Franks along with Representatives Gosar, Salmon, Schweikert, Kirkpatrick and Kildee for sponsoring this 

important legislation, H.R. 1410, the ‘‘Keep the Promise Act of 2013.’’ We also want 

to thank Representative Pastor, long a champion of tribal rights in Arizona, for his 

co- sponsorship of this bill. This bill will protect the promises that the tribes of Arizona made to each other and the State and voters of Arizona and protects the current Indian gaming structure in Arizona. Specifically, the bill will prohibit any tribe 

from conducting gaming on lands acquired into trust after April 9, 2013 for the duration of the existing gaming compacts which begin to expire in 2026. Thus, the bill 

73

does not target any one tribe and still allows for lands to go into trust status for 

tribes. But, the bill also ensures that the commitments and statements relied upon 

during the gaming compact negotiations are protected for the term of the existing 

compacts. 

While the need for this bill is necessitated by the current actions of one tribe, it 

will prevent any other tribes, including my own tribe, from trying to renege on the 

commitments and promises relied upon by the voters when they authorized tribes 

in Arizona to conduct Las Vegas-style gaming in 2002. 

In the current instance, the Tohono O’odham Nation (‘‘Tohono O’odham’’ or 

‘‘Tohono’’) is trying to utilize a 1986 law to acquire lands more than 100 miles from 

its seat of government, outside its aboriginal territory and within my tribe’s former 

reservation boundaries, in our aboriginal lands to develop a casino. This land is located across the street from Kellis high school in the City of Glendale, one of the 

Phoenix suburbs. This action by the Tohono O’odham directly contradicts commitments and statements it made, and which were relied upon by others, that there 

would be no additional casinos built in the Phoenix metropolitan area if the voters 

approved tribes continuing to conduct Las Vegas-style gaming in the State. 

The current actions of Tohono O’odham also contradict long-term statements that 

they and all other tribes have consistently made to the Governor and State Legislature that there could not be off-reservation gaming in Arizona without the Governor’s consent. The State of Arizona and Arizona voters have always worried about 

tribes trying to develop casinos off their existing reservations and in neighborhoods. 

To allay these concerns, tribes in Arizona have consistently said that they would 

not develop casinos off their reservations without the State’s approval. The initial 

gaming compacts in Arizona were developed in 1992–1993 based on statements and 

agreements that the tribes would not seek to conduct off-reservation gaming without 

first obtaining the consent of the Governor. When the voters re-approved tribes conducting Las Vegas-style gaming in 2002, they did so based on promises and statements by tribal leaders that casinos would be kept out of neighborhoods and that 

the number of casinos in the metropolitan areas would be limited. 

Tohono O’odham is now asking that the Secretary of the Interior take a 53 acre 

site within the City of Glendale, Arizona into trust status for the purpose of developing a Las Vegas-style casino. Tohono argues that the 1986 law mandates the Secretary to do so, and to do so without any consultation with the local communities, 

the State, or other American Indian tribes in Arizona despite the promises that it 

made to the State of Arizona and other tribes. While the Secretary of the Interior 

has not yet opined on whether these lands would be eligible for gaming, he has 

issued a decision to take the lands into trust status, although the action has not 

yet occurred. 

On this point, we have met with the Department of Interior (‘‘Department’’) to discuss our concerns. The Department has indicated its belief that it has a trust responsibility to Tohono O’odham to allow them to take the land into trust. We want 

to stress the similar trust responsibilities that exist between the Department and 

all of the other tribes in Arizona who depend on the revenue sharing streams that 

exist under the current compacts and gaming framework in Arizona. This trust responsibility cannot be trumped by the concerns of a single tribe wanting to build 

a casino across the street from a public high school. The responsibilities that the 

Department has to the other tribes and to sound public policy for all citizens of Arizona cannot be dismissed so lightly. While we recognize the Department may have 

a trust responsibility to take lands into trust for Tohono O’odham, we do not believe 

the Department has any such responsibility with respect to the use of Glendale 

lands for gaming, particularly to the detriment of other tribes to whom the Department also has a trust responsibility, consistent with the 2002 Compact. 

In addition to seeking to sidestep the limits of the Indian Gaming Regulatory Act, 

the efforts of Tohono O’odham also jeopardize a well-balanced system of gaming in 

Arizona. The State of Arizona is unique in that it has a system of gaming that was 

jointly negotiated amongst the tribes and the State, and then approved by the citizens of Arizona in a State-wide referendum. The Arizona system prohibits any additional casinos in the Phoenix metropolitan area, but allows Tohono O’odham to develop a fourth casino (it currently operates three successful casinos) in the Tucson 

metropolitan area, where it has historically been located. 

Tohono O’odham, along with 16 other tribes, financially and publicly supported 

the development of the current gaming system in Arizona. However, unbeknownst 

to the other tribes, the State and the voters of Arizona, Tohono was entering into 

a confidential agreement with a realtor to buy land in the Phoenix area for a casino 

at the same time that it was advertising to the voters and other tribes that there 

would be no new casinos in the Phoenix area. 

74

1See e.g., the Rhode Island Indian Claims Settlement Act, ratifying an agreement between 

the State of Rhode Island and the Narrangansett Tribe, and settling the Tribe’s land claims, 

was enacted in 1978 without a provision regarding gaming. 25 U.S.C. § 1701 et seq. Congress 

subsequently amended the Rhode Island Indian Claims Settlement in 1996 to explicitly prohibit 

gaming pursuant to IGRA. See 25 U.S.C. § 1708(b) (‘‘For purposes of the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.), settlement lands shall not be treated as Indian lands’’). See also, the Colorado River Indian Reservation Boundary Correction Act, to clarify or rectify the 

boundary of the Tribe’s reservation while also including a provision prohibiting gaming (‘‘Land 

taken into trust under this Act shall neither be considered to have been taken into trust for 

gaming nor be used for gaming (as that term is used in the Indian Gaming Regulatory Act (25 

U.S.C. 2701 et seq.)’’), Pub. L. 109–47 (Aug. 2, 2005); Congress passed legislation to waive application of the Indian Self-Determination and Education Assistance Act to a parcel of land that 

had been deeded to the Siletz Tribe and Grand Ronde Tribe in 2002 but also included a gaming 

prohibition provision (‘‘Class II gaming and Class III gaming under the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) shall not be conducted on the parcel described in subsection 

(a)’’) Pub. L. 110–78 (Aug. 13, 2007); Congress clarified the Mashantucket Pequot Settlement 

Fund, 25 U.S.C. § 1757a to provide for extension of leases of the Tribe’s land but provided that 

‘‘No entity may conduct any gaming activity (within the meaning of section 4 of the Indian GamEleven American Indian tribes in Arizona and New Mexico oppose the efforts of 

Tohono O’odham to develop a casino in the Phoenix metropolitan area; as does the 

Governor of Arizona and the cities of Glendale, Tempe Scottsdale and many others. 

The State of Arizona and the voters of Arizona never intended this type of situation to occur when the gaming compacts were written and approved in a State-wide 

referendum. H.R. 1410 would bring some common sense to this situation and clarify 

that no tribe may conduct gaming on lands taken into trust after April 9, 2013, as 

was promised by the Arizona tribes. H.R. 1410 would not make amendments to any 

Federal law. The bill would not take any lands away from Tohono O’odham, nor will 

it prevent any lands from going into trust status. The bill will merely prohibit any 

tribes from breaking the promises made to voters—‘‘no additional casinos in the 

Phoenix metropolitan area’’—and it will protect the Arizona Indian gaming and 

State revenue structure. 

I. Efforts During the 112th Congress To Protect the Structure of Gaming in 

Arizona

In 2011, the Subcommittee on Indian and Alaska Native Affairs held a hearing 

on H.R. 2938, a bill that sought to address the same concerns we bring to you today. 

While the intent of that legislation remains as the basis of the bill before you this 

year, we believe that the Keep the Promise Act is improved and we hope that it 

too can be passed with similarly overwhelming bipartisan support. 

Where H.R. 2938 imposed limitations on one tribe, the Tohono O’odham Nation, 

and the underlying law being exploited in support of its request to be able to game 

in Glendale, this bill simply seeks to reaffirm, through Federal law, the promise of 

‘‘no additional casinos in the Phoenix metropolitan area.’’ H.R. 1410 does not attempt to amend any existing statute, but rather holds each of the signatory tribes 

of the 2002 compact to the terms agreed upon at that time. 

II. H.R. 1410

As its title makes clear, H.R. 1410 keeps the promises that the tribes of Arizona 

made to the State of Arizona and the voters of Arizona that there would be no additional casinos for the duration of the negotiated and voter approved tribal-State 

gaming compacts. H.R. 1410 is a simple bill that merely ratifies the agreement that 

the State and tribes of Arizona reached when they established a limited structure 

of Indian gaming in Arizona. This bill does not amend Federal law, target any specific tribe, or prevent Tohono O’odham from placing lands into trust. H.R. 1410 is 

limited in geographic scope to the Phoenix metropolitan area, is limited in temporal 

scope and applies only until the expiration of the current compacts, and applies uniformly to all Arizona tribes. 

H.R. 1410 recognizes tribal sovereignty by affirming what tribal sovereigns committed to each other and does not create negative precedent for Indian Country. 

H.R. 1410 merely ensures that the tribes of Arizona keep the promise that we made 

to the State of Arizona and the voters of Arizona that there would be no additional 

casinos in the Phoenix area throughout the duration of the existing gaming compacts which begin to expire in 2026. After that time, all interested parties within 

Arizona can negotiate what gaming scheme should exist in the State. In fact, this 

type of clarifying legislation is extremely common in Indian Country. Congress routinely includes various restrictions on legislation involving Indian land, particularly 

gaming. For instance, it is not unusual for Congress to revisit existing statutes to 

clarify the party’s intent, so long as the legislation is narrowly tailored.1 This is a 

proper and necessary role for Congress. 

75

ing Regulatory Act (25 U.S.C. 2703)) pursuant to a claim of inherent authority or any Federal 

law (including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq) and any regulations 

promulgated by the Secretary of the Interior or the National Indian Gaming Commission pursuant to that Act) on any land that is leased with an option to renew the lease in accordance with 

this section.’’), Pub. L. 110–228 (May 8, 2008); Congress passed the Indian Pueblo Cultural Center Clarification Act which amended Public Law 95–232 to repeal the restriction on treating certain lands held in trust for the Indian Pueblos as Indian Country with the explicit clarification 

that although it was Indian Country it could not be used for gaming (‘‘Gaming, as defined and 

regulated by the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.), shall be prohibited on 

land held in trust pursuant to subsection (b).’’) Pub. L. 111–354 (Jan. 4, 2011). 

This continues to be a consistent practice of Congress. In the 112th Congress, 

Congressman Grijalva introduced the Cocopah Lands Act (H.R. 1991), a bill to 

transfer land in trust to the Cocopah Tribe and included a provision restricting gaming. (‘‘Land taken intro trust for the benefit of the tribe under this act shall not be 

used for gaming under the Indian Gaming Regulatory Act’’). 

Accordingly, any arguments that the H.R. 1410 constitutes dangerous precedent 

are inconsistent with common Congressional practice. 

The Community supports H.R. 1410 because it is narrow in scope, does not impact 

tribal sovereignty and is the simplest solution to this current threat to Indian gaming in Arizona. This legislation makes express what had been the common understanding of the parties that negotiated the existing gaming compacts in Arizona. 

III. H.R. 1410 Recognizes and Supports Tribal Sovereignty

The Salt River Pima-Maricopa Indian Community, along with the 10 other tribes 

who oppose Tohono O’odham’s reservation-shopping efforts, know firsthand the importance of tribal sovereignty. As federally recognized tribes, we fight on a daily 

basis to protect tribal sovereignty and provide for our people. We would not support 

a bill that jeopardizes tribal sovereignty. Rather, we pride ourselves on working 

with our brethren on issues of common concern to Arizona tribes because it 

strengthens our collective sovereignty and helps us fulfill our responsibilities to our 

individual tribal communities. 

We are here today in support of H.R. 1410 because in our view, H.R. 1410 explicitly recognizes and respects tribal sovereignty by upholding the commitments that 

we, including Tohono O’odham, all made during the compact process and that were 

memorialized through passage of Proposition 202. 

To be clear, H.R. 1410 simply seeks to reaffirm that no additional casinos may 

be built in the Phoenix metropolitan area for the duration of the existing gaming 

compacts. As discussed above, this type of clarifying legislation is not uncommon in 

Indian Country. It is sometimes necessary for Congress to step in and clarify agreements to preserve the intent of the parties. This is a proper and necessary role for 

Congress. 

Here, H.R. 1410 is narrowly tailored to maintain the status quo and sustain the 

carefully negotiated gaming structure, voted on by the citizens of Arizona. Without 

H.R. 1410, Tohono O’odham will proceed on its path to circumvent existing gaming 

restriction, both under Federal and State law, conduct gaming far from their existing reservation, and most importantly jeopardize the other Arizona tribes’ existing 

rights under Federal law that we all share. As sovereign nations, we cannot simply 

stand by and watch someone, albeit another Arizona tribe, threaten our gaming 

rights and unravel the comprehensive and inter-connected gaming structure in Arizona. Accordingly, we urge passage of H.R. 1410 to uphold tribal sovereignty. 

IV. The Promise of Limited Gaming in Arizona

We and many other Arizona tribes believe the existing tribal-State gaming compact to be the model in the Indian gaming industry. It is regulated at all levels of 

government (tribal, State, and Federal), is limited in both the number of gaming devices and locations, benefits both gaming and non-gaming tribes alike, benefits local 

municipalities and charities throughout the State, and is beneficial to the State of 

Arizona. But most importantly, the Citizens of Arizona benefit because the tribalState gaming compacts were the direct result of a voter approved ballot initiative 

in 2002. 

Today, the proposed casino development proposal by Tohono O’odham runs contrary to what the voters approved in 2002 and threatens the existing tribal-State 

gaming compacts. Prior to the passage of the voter approved ballot initiative (Prop 

202) which culminated in the existing tribal-State gaming compacts, tribal leaders 

held extensive, hard negotiations on an acceptable framework for all tribes. Importantly, 16 tribal leaders, including Tohono O’odham, signed an Agreement in Principle (AIP) to make a good faith effort to maintain a collaborative relationship as 

to gaming matters and compact renegotiation. 

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Specifically, the AIP stated that tribal leaders would make ‘‘Good Faith’’ efforts 

to share among themselves the details of compact renegotiations with the State of 

Arizona. Further, tribal leaders agreed to make ‘‘Good Faith’’ efforts to develop and 

maintain consistent positions and to notify other tribal leaders if they believed they 

could not abide by the AIP. 

We negotiated in good faith with all Arizona tribes and the Governor of Arizona 

to craft a tribal-State gaming compact that preserved tribal exclusivity for casino 

gaming, allowed for larger casinos and machine allotments with the ability to expand machine allotments through transfer agreements with rural tribes, and that 

was intended to limit the number of casinos in the Phoenix metropolitan area. In 

order to reach a deal with the Governor of Arizona all tribes, including Tohono 

O’odham, had to agree that no more than seven casinos could be located in the 

Phoenix metropolitan area. 

This meant that the Salt River Pima-Maricopa Indian Community and the three 

other Phoenix Metro tribes (Ak-Chin, Gila River & Fort McDowell) each had to give 

up their rights to build one additional casino. Tohono O’odham was aware of this 

concession on the part of other tribes and fully knew that this was a key deal point 

for the State of Arizona that needed to be made if negotiations were to move forward. 

However, it is clear that Tohono O’odham began actively seeking to purchase land 

in the Phoenix area for the sole purpose of establishing a casino, prior to the conclusion of compact negotiations and ratification of the tribal-State compacts. 

As a result, many Arizona tribes have opposed the actions of Tohono O’odham. 

Indeed, a chronology of events from the time of enactment of the original land settlement further clarify the intent of Congress, the State of Arizona and Indian tribes 

throughout the State. 

1986 October 20—Congress adopted the Gila Bend Act. The Gila Bend Act authorized Tohono O’odham to purchase, and the Secretary to add Tohono O’odham’s 

reservation, up to 9,880 acres of land in Maricopa, Pinal or Pima counties. Under 

the Act, purchased land may not be within the corporate limits of any city and may 

not be purchased in more than three parcels. 

1988 October 17—Congress adopted the Indian Gaming Regulatory Act (IGRA). 

The Act authorized Tribes to conduct gaming, subject to requirements of the Act and 

the compact with the State. No provision grandfathering the Gila Bend Act was included in this act. 

1994 April 25—The Arizona legislature intended to prohibit off-reservation casinos by adopting A.R.S. 5–601.C, which stated that the Governor of Arizona shall not 

concur in a so-called ‘‘two part determination’’ under IGRA regarding any proposed 

off-reservation casino. This State statute reflects Arizona’s public policy towards offreservation casinos. 

1999—Compact negotiations began. Sixteen tribes, including Tohono O’odham, 

signed the AIP under which each tribe agreed to ‘‘make a good-faith effort to notify 

other tribal leaders if they believe that they cannot abide by this agreement or that 

they must take positions or actions inconsistent with those of the other tribal leaders.’’

2000 January 25—Tohono O’odham asked the Secretary of the Interior to waive 

the three parcel limit under Gila Bend Act, which was needed in order to seek an 

off-reservation casino. 

2000 May 31—The Secretary approved Tohono O’odham’s request, and allowed 

the Tohono to buy and transfer in trust 9,880 acres in up to five parcels instead 

of three. 

2002 February 20—State and Arizona tribes reach agreement-in-principle on 

proposed new compact. The new compact would require that each Phoenix metro 

tribe (Gila River, Fort McDowell, Salt River, and Ak-Chin) give up its right under 

the then-existing compacts to operate one additional casino, so there would be no 

more than seven casinos in Phoenix metro area. (In 2002 there were only seven casinos in operation in the Phoenix metro area). After the agreement’s announcement, 

the 17 tribes and the Arizona Indian Gaming Association (AIGA) began efforts to 

get the Arizona legislature to approve the agreement. Governor Hull issued a News 

Release stating the ‘‘Major points in the [negotiated] agreement include . . . Number of casinos . . . No additional casinos allowed in the Phoenix metropolitan area 

and one additional casino in the Tucson area.’’

2002 April 8—David LaSarte, AIGA Executive Director, testified before the Arizona legislature that one of the ‘‘most important items within the agreement 

include[s] the limitation of facilities in the Phoenix-metro area to the current number and allows the possibility for only one additional facility in Tucson.’’

The legislature failed to adopt the compact. As a result, the 17 tribes and AIGA 

began their political campaign seeking Arizona voter approval of the negotiated 

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compact in Prop 202. AIGA published a campaign pamphlet for voters entitled ‘‘Answers to Common Questions,’’ with ‘‘major funding’’ provided by Tohono O’odham 

and three other tribes. Tohono O’odham contributed approximately $1.8 million in 

support of the campaign and was listed as a supporter of the Prop 202 campaign 

materials. The voter pamphlet sponsored in part by Tohono O’odham stated:

‘‘Question. Does Prop 202 limit the number of tribal casinos in Arizona? 

Answer. Yes. In fact, Prop 202 reduces the number of authorized gaming 

facilities on tribal land, and limits the number and proximity of facilities 

each tribe may operate. Under Prop 202, there will be no additional facilities authorized in Phoenix, and only one additional facility permitted in 

Tucson.’’

The Secretary of State’s official Voter Guide for the November 5, 2002 General 

Election provided arguments for and against adoption of Proposition 202. Governor 

Hull argued for adoption of Proposition 202, stating:

‘‘Voting ‘yes’ on Proposition 202 ensures that no new casinos will be built in the 

Phoenix metropolitan area and only one in the Tucson area for at least 23 years. 

Proposition 202 keeps gaming on Indian Reservations and does not allow it to move 

into our neighborhoods.’’

Attorney General Napolitano argued for adoption of Proposition 202, stating: 

‘‘Most Arizonans believe casino gaming should be limited to reservations. I agree. 

. . . [Prop 202] also prevents the introduction of casino gaming, such as slot machines, by private operators into our neighborhoods.’’

2002 March 11—Tohono O’odham signed a ‘‘Confidentiality and Non-Circumvention Agreement’’ with a realtor (Mr. Amavisca) to buy land for a casino in Maricopa 

County. In deposition, the realtor testified that Tohono O’odham ‘‘did not want outside parties knowing they were interested in land along the interstate . . . for a gas 

station, cigar store, possible casino. . . . It was my understanding that a casino 

going in may get negative feedback in the area.’’ Also in deposition, the Business/

Finance Manager for a Nation—owned corporation (Mr. Chaston) testified that the 

purpose of the realtor’s Confidentiality Agreement was that Tohono O’odham was 

‘‘trying to keep the seller from knowing who the ultimate buyer is.’’ He also confirmed that the realtor was retained by Tohono O’odham to find land for a possible 

‘‘gaming facility’’ and ‘‘that was the original reason to have Mr. Amavisca looking 

for us.’’

2002 September 25—According to an Arizona Department of Gaming (ADOG) 

Memorandum by Mr. Rick Pyper dated October 2, 2002, a Town Hall Meeting was 

held in Tucson moderated by a representative from Governor Hull’s office. The purpose of the Meeting was to discuss the pros and cons of the gaming propositions 

on the ballot. According to the ADOG Memorandum, Mr. Ned Norris represented 

the Tohono O’odham Nation and spoke against Prop 201, the competing proposition 

authored by the Colorado River Indian Tribes: ‘‘Mr. Norris said that 201 will open 

gaming into cities and that the citizens of Arizona have, repeatedly over the years, 

expressed their desire to keep gaming on the reservation.’’

2002 November 5—Arizona voters approved ballot initiative Proposition 202. Between November 1999 and December 2002, AIGA and Arizona tribes met privately 

over 85 times on compact negotiations and the voter campaign. During the same period, AIGA tribes had over 35 meetings with the State regarding compact negotiations and the voter campaign. 

2002 November 6—An Article published by the Tucson Citizen reported that 

Prop 202 was approved by the voters. Tohono O’odham Nation Chairman at the 

time, Edward Manuel, who signed the 1999 AIP among tribes, was quoted as saying: ‘‘To us, this is a major victory. We stayed together. We stayed united. We will 

try to keep working on that to keep the unity together.’’

2002 December 4—One month after voters approved Proposition 202 Tohono 

O’odham signed its Proposition 202 compact. 

2003 March 12—Three months later Tohono O’odham created a Delaware corporation in order to secretly buy land for a Phoenix metropolitan casino. 

2003 August 21—Tohono O’odham’s secret Delaware Corporation bought the 

Glendale land, located in the Phoenix metro area, for a casino. 

2009 January—Tohono O’odham applied to Secretary to have the Glendale land 

added to Tohono O’odham’s land base. In fact, Tohono O’odham told officials at the 

Department of the Interior that no Arizona tribes objected to this project when it 

submitted the application. This is not a true statement. 

2009—Upon hearing of Tohono O’odham’s plan to open a casino in the Phoenix 

metro area many Arizona tribes passed resolutions opposing the plans. These tribes 

included the Ak-Chin Indian Community, Fort McDowell Yavapai Nation, Gila 

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River Indian Community, San Carlos Apache Tribe, Tonto Apache Tribe, White 

Mountain Apache Tribe and Yavapai-Apache Nation. The reasons given by all these 

tribes is that Tohono’s plans violated the promises made to Arizona voters in Prop 

202 and threatened tribes’ exclusive right to operate casinos in the State. 

2011 April 29—The member tribes of AIGA passed a formal resolution to reaffirm AIGA’s Proposition 202 promises. 

2011 June 29—Tohono O’odham filed Answer in Federal court to a complaint 

filed by the State of Arizona in State of Arizona v. Tohhono O’odham Nation. In its 

Answer, Tohono O’odham admitted that, in the midst of the Prop 202 campaign conducted by the 17 tribes including Tohono O’odham—a campaign for approval of a 

compact that would require other tribes to limit casinos in the Phoenix metro area—

Tohono O’odham was concurrently trying to buy Phoenix metro land for a casino. 

Tohono O’odham also admitted that various parties ‘‘characterized the provisions of 

Proposition 202 requiring most tribes to give up the right to one gaming facility as 

‘no additional facilities authorized in Phoenix, and only one additional facility permitted in Tucson’ and that Tohono O’odham did not contradict those statements.’’ 

Tohono O’odham admitted ‘‘that it participated in the negotiations that led to Proposition 202, supported Proposition 202, and entered into a new compact in 2002 after 

the voters approved Proposition 202.’’ Finally, Tohono O’odham admitted ‘‘that in 

2002 it was considering the possibility of acquiring property in the Phoenix metropolitan area for gaming purposes; that it did not disclose that it was considering 

such an acquisition; and that it had no obligation to make such a disclosure’’ to 

other tribes, to the State, or to the voters. 

Tellingly Chairman Norris has not denied, because he could not, that the 17 tribe 

coalition had made promises directly to the Arizona voters that there would be no 

additional casinos in the Phoenix metropolitan area. When confronted, his response 

to some of these tribes was, ‘‘those are just words on a publicity pamphlet.’’

Arizona tribes overwhelmingly agree that the collaborative approach to crafting 

the current tribal-State compact has been a great benefit to tribal communities, 

local communities—such as our neighbors, the Cities of Tempe and Scottsdale, charities for the State, and the people of Arizona. 

However, not then and certainly not now, did we expect to be here today to say 

that one of our sister tribes did not act in ‘‘good faith’’. However, the record is clear 

there were ongoing efforts by Tohono O’odham government to purchase land, have 

it taken into trust status and develop a casino. 

It is not an easy thing to stand here and talk about a lack of ‘‘good faith’’, and 

we do so reluctantly. However, we act today so that in future years, we will not 

have to look back and say to all, that ‘‘we should have done something.’’

V. The Tohono O’odham Nation’s Deceit is Calculated To Break Promises 

Made to the State of Arizona and the Voters of Arizona and Prop Up 

Their Thriving Gaming Enterprise

Tohono O’odham’s actions constitute the deliberate effort of one tribe to use deception and sovereign immunity as political tools to make and break promises for pecuniary benefit. The Tohono O’odham Nation already has very successful gaming enterprise. Tohono O’odham maintains two casinos in the Tucson metropolitan area 

and an additional casino in why, Arizona. Additionally, under the current gaming 

Compact, Tohono O’odham is allowed to develop a fourth casino on their existing 

reservation lands, including in the Tucson metropolitan area. H.R. 1410 would not 

impact the tribe’s existing three casinos or impact its ability to develop a fourth casino on its existing reservation or on its aboriginal lands. 

Tohono O’odham’s success in gaming goes back to early 1992, when the State of 

Arizona and certain Arizona tribes, including Tohono O’odham were at a standoff 

regarding Indian gaming in the State. To overcome legal challenges and political opposition, the tribes repeatedly made statements that no gaming could occur outside 

of existing reservations without the concurrence of the Governor. During Federal 

District Court mediation with the State in 1993, Tohono O’odham submitted a document, ‘‘Comparison of Compact Proposals,’’ which argued that the State of Arizona’s 

insistence on compact provisions requiring the Governor’s concurrence for any offreservation gaming was unnecessary because ‘‘existing Federal law requires the 

Governor’s concurrence. This is adequate protection to the State and local interests.’’ 

Tohono O’odham Nation’s Comparison of Compact Proposals at 11, No 93–0001 PHX 

(D. Ariz. Jan. 19, 1993). Tohono O’odham now claims that a legal loophole allows 

it to unilaterally pursue a casino off existing reservation lands without the concurrence of the Governor of Arizona or any input from any of the local communities. 

Further, on June 8, 1993, tribal representatives met with staff for the State legislature and provided a handout entitled ‘‘After Acquired Lands,’’ which stated that 

‘‘[a]nother exception to the prohibition of gaming on after acquired lands is when 

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the lands are taken into trust as part of a settlement of a land claim. This will not 

effect [sic] Arizona because aboriginal land claims in Arizona have already been settled pursuant to the Indians Claims Commission Act of 1946.’’ The handout was distributed on behalf of all tribes present, including Tohono O’odham. After State officials had received these assurances, the Governor of Arizona entered into gaming 

compacts with the tribes to allow tribal gaming in Arizona. 

A 17-tribe coalition was formed in 1999 to negotiate new gaming agreements with 

the State. Leaders from each member of the tribal coalition, including then-Chairman Edward Manuel of Tohono O’odham, signed an Agreement in Principle (AIP), 

which required that each tribe act in ‘‘good-faith’’ and notify the other tribes if it 

could not abide by the agreement or must take ‘‘positions or actions inconsistent’’ 

with the other tribes. The tribal coalition ultimately agreed that the four Phoenixmetro tribes (Ak-Chin Indian Community, Fort McDowell Yavapai Nation, Gila 

River Indian Community and Salt River Pima-Maricopa Indian Community) would 

each reduce their authorized casinos by one so there would be no more than seven 

casinos (the existing number at the time) in the Phoenix metro area. One Tucsonmetro area tribe (the Pascua Yaqui tribe), agreed to give up a right to an additional 

casino, while Tohono O’odham refused to reduce its four casino allotment (Tohono 

O’odham already had three operating casinos, two in Tucson and one in an rural 

area) claiming it needed to keep its rural facility to provide jobs in that area, and 

that it would put the unbuilt casino in the Tucson area or the rural part of its reservation. The Governor and other tribes agreed to allow Tohono O’odham to keep 

its fourth casino allotment based on these commitments. Tohono O’odham is now 

trying to place its unbuilt facility in the Phoenix metro area and could, if allowed, 

relocate any of its other existing facilities there. 

The tribal coalition spent over $23 million on the campaign to pass Proposition 

202, which would authorize the Governor to sign tribal-State gaming compacts. 

Tohono O’odham provided approximately $1.8 million. The campaign distributed a 

document entitled ‘‘Answers to Common Questions’’ stating that ‘‘[u]nder Proposition 202, there will be no additional facilities authorized in Phoenix, and only one 

additional facility permitted in Tucson.’’ Although Tohono O’odham has admitted 

that its funds were used to publicize these promises to the voters of Arizona, it now 

claims that these were misstatements to which Tohono O’odham had no obligation 

(legal or otherwise) to correct. Tohono O’odham has also disclosed, despite the promises contained in the AIP and those made to the State and voters, that it was ‘‘considering the possibility of acquiring land in the Phoenix area for gaming purposes, 

that it did not disclose that it was considering such an acquisition, and that it had 

no obligation to make such a disclosure.’’ It has now come to light that Tohono 

O’odham was indeed planning to acquire land for gaming in the Phoenix metro area 

as early as 2001 and eventually did so through a Tohono O’odham-owned Delaware 

corporation ‘‘in part to conceal its ownership’’ of the property. 

Not only has Tohono O’odham manipulated Federal law and administrative policy 

to shoehorn a casino into a neighborhood against the wishes of local governments 

and its sister tribes, Tohono O’odham has also asserted, through its attorneys, its 

right to open all four of its authorized casinos in the Phoenix metropolitan area on 

land acquired under the Gila Bend Act. These brazen contentions demonstrate that 

Tohono O’odham intends to repeat its pattern of deception wherever advantageous, 

and will do so regardless of the promises made or the toll on all other Arizona 

tribes. This deliberate policy of deceit, which is calculated to avoid court review, 

leaves Congress as the only forum that can protect the promises made to the people 

of Arizona. 

VI. Congress is the Only Institution That Can Provide Accountability on 

This Matter

Tohono O’odham’s secretive and deceptive actions have resulted in litigation in 

the Federal courts from the District of Columbia to the State of Arizona and up to 

the Court of Appeals for the Ninth Circuit. Although these actions are still ongoing, 

Tohono O’odham made the calculated decision of using sovereign immunity as a 

shield to preclude review of its deceitful actions during the compact negotiations and 

Prop 202 campaigns of the early 2000’s. While Tohono O’odham tells Members of 

Congress to let the court address this matter, in court, Tohono O’odham argues that 

the court does not have the jurisdiction to review its actions. Definitive action by 

Congress is therefore necessary to resolve, once and for all, the intent of the Arizona 

gaming compacts and more importantly, preserve the deal that was struck in 2002. 

The State of Arizona filed a complaint in Federal court against Tohono O’odham 

in 2011 alleging that Tohono ‘‘had a secret plan at the time it was negotiating the 

Compact to build a gaming facility in the Phoenix metropolitan area . . ., notwithstanding its contrary representations’’ to the State and the public. These ‘‘represenVerDate 0ct 09 2002 15:12 May 16, 2014 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6621 X:\03INDI~1\03MY16~1\5-16-1~1\80981.TXT MARK
80

tations induced the State to enter into the Compact, and the State would not have 

signed the Compact had it known of the Nation’s plans.’’ In another claim, the State 

alleged that the Nation ‘‘materially and fraudulently misrepresented that it had no 

plans . . . to open a gaming facility in the Phoenix metropolitan area,’’ and that the 

‘‘State’s assent to the Compact was induced by the Nation’s misrepresentations and 

intentional failures to disclose material facts.’’ Several tribes support the State’s allegations against TON. 

The district court dismissed the fraud and misrepresentation claims not on the 

merits, but because Tohono O’odham asserted that it was protected by the doctrine 

of tribal sovereign immunity. Since Tohono O’odham has refused to waive its sovereign immunity with respect to these claims, the court was unable to consider 

them. On May 29, 2013, the court found that the evidence supported a claim for 

‘‘promissory estoppel’’ against Tohono O’odham but that ‘‘such a claim is barred by 

[Tohono’s] sovereign immunity. In dismissing the fraud in the inducement, material 

misrepresentation and promissory estoppel claims because of Tohono’s sovereign immunity, the court noted that Congress only waived tribal sovereign immunity for 

claims arising from executed compacts. Therefore, the scope of this waiver does not 

include statements, commitments, and promises made prior to compact execution, 

which formed the basis of these deceit based claims against Tohono. While the commitment of the Arizona tribes not to build additional casinos in Phoenix was not 

written into the compact, that promise was the basis for Arizona’s acceptance of the 

model compact and was an implicit tenet of the State’s agreement to permit limited 

Class III gaming in Arizona. Congress is the appropriate entity to provide redress 

to the parties who relied on the statements made by the Arizona tribes. Because 

Tohono O’odham has refused to waive its sovereign immunity and the merits of 

those claims cannot be heard by a court. 

While the Arizona tribal community, the State, and the co-sponsors of the bill 

would welcome a resolution that ensures that there would be no casino gaming in 

Glendale, or other attempts to game on lands removed from Tohono O’odham’s current reservation in the Tucson area, one cannot simply turn a blind eye to the fact 

that Tohono O’odham’s current proposal to game in Glendale is illegal and violates 

the agreement that Tohono O’odham made with other Arizona tribes, the State, and 

with Arizona voters in 2002. It is therefore particularly ironic that Tohono O’odham 

claims the trust responsibility would be violated by this measure when in reality, 

the trust responsibility is a further reason to enact H.R. 1410—without it, the selfinterested economic desires of one tribe would be advanced to the detriment of every 

other gaming tribe in Arizona. 

There are also important practical considerations that compel Congressional action now. Among them, taxpayers and other tribes in Arizona should not have to 

wait and continue to have to spend time and money to fight against the unfair and 

dubious actions by Tohono O’odham. The result is that this bill would clarify what 

everyone except Tohono O’odham understands, that the current Arizona gaming 

compacts were intended to prohibit the placement of an additional casino in Glendale Arizona, in an Arizona city, town or off-reservation setting. 

While the co-sponsors of H.R. 1410 and the Arizona tribes who support it, must 

reluctantly be critical of Tohono O’odham’s conduct here, it is hard to avoid the fact 

that Tohono has repeatedly thwarted the normal process for obtaining Federal approval of Indian gaming, and used sovereign immunity as a shield to prevent the 

review of claims against it for fraud in the inducement, material misrepresentation, 

and promissory estoppel. It is the merits of these claims that the Keep the Promise 

Act is seeking to address and Congress is the only institution that can provide accountability in this matter. 

VII. Conclusion

The Salt River Pima Maricopa Indian Community urges Congress to pass 

H.R. 1410. It is needed to reaffirm the promise that the tribes of Arizona made to 

the State of Arizona and voters that there would be no additional casinos in the 

Phoenix metropolitan area for the duration of the existing compacts. The clarification does not interfere with Tohono O’odham’s desire to have land taken into trust. 

It maintains the status quo in Arizona and does not adversely affect any tribe. 

Without this bill, the other Arizona tribes may suffer because the current gaming 

compact structure will certainly be compromised. We support this legislation. 

Mr. YOUNG. I thank you again, Diane. 

I ask unanimous consent that Mr. Schweikert be able to sit and 

participate. 

81

Ms. Hanabusa, I think that is a good idea. 

You are up. 

Dr. GOSAR. Thank you, Mr. Chairman. 

And first I would like to thank you for moving this bill forward, 

and I would also like to thank my friend, Congressman Franks, 

who introduced this bill last month, and I strongly believe that 

swift passage is critical to the future of gaming in my State. 

My support for H.R. 1410 is not rooted in the opposition to one 

casino. I support Indian gaming and gaming as a whole. In fact, 

I am a member of the House Gaming Caucus and a group of congressional leaders focused on educating members on gaming related issues and working to identify key policy areas that can be 

advanced at a Federal level to enhance the economic impact of 

gaming around the country. 

I simply believe gaming should be prohibited on the lands in 

Glendale at least through the life of the Arizona Compact. The key 

part of that compact was a tribal agreement, including the nation, 

that no casinos would be permitted in the metropolitan area for at 

least 23 years. The nation was very clear back when the compact 

was negotiated that if it operated a fourth casino, that casino 

would be located in rural Arizona, not metropolitan Phoenix. 

H.R. 1410 simply upholds the compact by prohibiting gaming on 

lands taken into trust by the Secretary within the Phoenix Metropolitan Area until January 1, 2027. It is supported by six of the 

tribes that took part in the Proposition 202 agreement, the Salt 

River Pima-Maricopa Indian Community, the Gila River Indian 

Community, the Hualapai Tribe, the Pueblo Zuni, the Cocopah, and 

the Fort McDowell Yavapai Tribe. 

I would like to submit an op-ed those tribes placed in the Arizona 

Republic, our State’s largest newspaper, entitled ‘‘Tribal Leaders’ 

Bill Would Safeguard Casinos Deal,’’ for the record. 

Mr. YOUNG. Without objection. 

Dr. GOSAR. Additionally, I have letters of support from the Town 

of Fountain Hills, the City of Glendale, the City of Tempe, the 

Town of Gilbert, the City of Litchfield Park. These are all municipalities within the Phoenix Metropolitan Area concerned with the 

violation of the State compact. 

Mr. Chairman, I ask that those letters also be included in the 

record. 

Mr. YOUNG. Without objection. 

[The article and letters of support submitted for the record by Dr. 

Gosar have been retained in the Committee’s official files:] 

Dr. GOSAR. One more comment before I get my questions. A government that is not accountable is no government at all. When we, 

and I think President Enos alluded to it, that the court’s hands 

were tied when we claimed tribal immunity, and not to be able to 

fully disclose the underhanded dealings in which the tribe dealt 

with this, I find it offensive, not just on this level but on the tribal 

level, and I am one of the leading components of what we are seeing now in the U.S. Government. 

I am also aware very truly about what the U.S. House’s, a legislative body, jurisdiction and treaty obligation is, and so with that 

I will start my questions. 

82

President Enos, the bill that does not prohibit the land from 

being taken into trust, what are your thoughts on that? 

Ms. ENOS. My community and the other tribes, as far as I know, 

do not oppose the Federal Government taking land into trust for 

economic development purposes. 

Dr. GOSAR. Now, I understand that non-gaming rural tribes are 

concerned about the proposal of off-reservation gaming proposal. 

What happens to them if this legislation does not pass? 

Ms. ENOS. The Arizona Compact that the Governor entered into 

with all of us as tribes is a standard compact, and it provides for 

the transfer of machines for those tribes that have no market. For 

instance, Hualapai, who is here today, has no real market. So they 

get to transfer their machines to the tribes in the metro areas, 

Phoenix and Tucson. 

Also, you have rural tribes. Because Arizona tribes have exclusivity for gaming in the State of Arizona, they get a share of the 

market that they would not otherwise have. Currently, the threats 

to Indian gaming in Arizona continue, and they have for several 

years with increasing pressure. 

There is a bill that sits on the Speaker of the House in the State 

legislature, Speaker Tobin, which is a racino bill, which would provide slot machines to race tracks and other non-Indian entities. 

That is the threat that we face. If Tohono is allowed to build a casino in the City of Glendale, those non-Indian interests have already started to say, ‘‘Look. You cannot trust the tribes,’’ and they 

will demand that the exclusivity for tribes be broken and that all 

the tribes, including the rural tribes and the non-gaming tribes will 

lose out severely. 

Dr. GOSAR. So let me get this straight. So Steve Wynn from Nevada could be in Scottsdale if this compact is broken; is that not 

true, President Enos? 

Ms. ENOS. That is correct. 

Dr. GOSAR. And if that so does happen, who loses? Do the tribes 

have the money to compete with somebody like Steve Wynn? 

Ms. ENOS. The tribes do not, in my opinion. And you are looking 

at tribes that are way out in the rural areas. You are looking at 

tribes, for instance, the Havasupai that live at the bottom of the 

Grand Canyon, and this revenue that has come from transfer of 

machines has been huge for them. They do not have very many 

other sources for economic development, and tribes across the State 

of Arizona would be hard hit if the State went statewide gaming 

because of that provision in our compact. It is referred to as the 

‘‘poison pill provision,’’ and it basically says that if a non-Indian entity gets Class III machines, technically speaking, the State is open 

to statewide gaming. 

Dr. GOSAR. Well, I have run out of time. I will wait for my additional time. 

Thank you. 

Mr. MULLIN [presiding]. I will now recognize the Ranking Member for any questions that she may have. 

Ms. HANABUSA. I am going to pass my time to Mr. Grijalva. 

Mr. GRIJALVA. Thank you. Thank you, Mr. Chairman. Thank 

you, Ranking Member. 

83

Chairman Norris, it is not even a point of responding. Legal decision, precedents, administrative hearings and decisions seem to be 

relevant in this discussion, chairman, and so far we are dealing 

with hyperbole. We are dealing with generalizations, Las Vegas to 

take over Phoenix being one of them, and your nation and fulfilling 

the decision by this Congress to replace to some level the land you 

lost in the flooding. 

I had the opportunity near Saint Lucy, and some of the elders 

there took me to what formerly used to be the community, and 

there is no amount of time that is ever going to make up that loss, 

but Congress felt that was not only a gesture, but a necessary, just 

thing to do, and they did. They put no restrictions on the land, and 

they called it reservation land. 

But you are being categorized, and anybody, I believe, that supports you, whether it is the City of Peoria, whether it is Chicanos 

por la Causa, whether it is the Glendale City Manager and some 

of the councilmen, whether it is Phoenix City councilmen, whether 

it is the City of Tolleson, whether it is the Hopi Tribe, the San Carlos Apache Tribe, the Hopi Tribe, as I mentioned, the mayor and 

city council of Surprise, that characterization would apply to them 

that they are part of some plot that is underhanded. What else? 

Fraudulent. 

And so, chairman, this legislation is particular to your nation, 

period. And the line that is drawn arbitrarily in this legislation is 

directed to limiting any options that you might have under the law 

to develop gaming in that reservation land. I am not a lawyer but 

disparate treatment seems to be the primary word here. 

So, is this issue about competition, because the last time that we 

hear somebody testify that if we did not pass that last piece of legislation, that the whole compact in Arizona would unravel. We are 

having that same discussion. The judge ruled that the compact is 

secure and safe, that is no potential to unravel, so, today, if the 

compact is indeed secure and safe, chairman, your explanation to 

me and to the members, what is the motivation then to rush this 

legislation, beat the court to a decision, beat Interior to a decision 

and therefore toward any effort to do due diligence and let the 

process work its will, the only way to pass this legislation is to categorize this as fraudulent, underhanded. 

Mr. Chairman, any response to what we have heard thus far? 

Mr. NORRIS. Mr. Chairman, Ranking Member Hanabusa, members of the Committee, Mr. Grijalva, thank you for that question. 

You know, my Nation has been litigating this issue with the opposition for close to 3 years, if not 3 years already. There have been 

volumes and volumes and volumes of deposition and statements 

that have been made and discovery that has taken place, and we 

continue to abide by the letter of the law, not only in our compact 

but also with respect to our land and water settlement, as well as 

the Indian Gaming Regulatory Act. 

Obviously, the courts thus far have agreed with the nation’s arguments. The argument was whether or not we are going to violate 

the compact. The courts ruled no. The argument was whether or 

not we are going to violate the Indian Gaming Regulatory Act. The 

courts ruled no. The argument was whether or not this was a land 

settlement or not. The courts said no. This is in fact the land setVerDate 0ct 09 2002 15:12 May 16, 2014 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6602 X:\03INDI~1\03MY16~1\5-16-1~1\80981.TXT MARK
84

tlement. The arguments were that we were somehow being deceptive and whatnot, that there was a promise made. The courts realized that and said no. The primary motivation with these two 

wealthy tribes is the market share issue. Their primary effort here 

is to protect their market. And to suggest that my nation, the 

O’odham Nation, has no aboriginal ties to that area is really an insult. It is an insult to me as an O’odham and it is an insult to other 

O’odham as well. The driving force behind this legislation is two 

wealthy tribes trying to protect their market share. 

Mr. MULLIN. The gentleman’s time has expired. 

Mr. GRIJALVA. Thank you, Mr. Chairman. 

Mr. MULLIN. The Chair will now recognize the gentleman from 

Arizona. And, David, I am not going to try your last name because 

everybody keeps messing with the names around here. So, I am 

just going to leave that alone. 

Mr. SCHWEIKERT. Thank you. It is OK. I am quite used to that. 

Mr. MULLIN. Thank you. 

Mr. SCHWEIKERT. Mr. Chairman and Committee members, thank 

you for giving me a moment to sit on the Committee. And, Raul, 

I thought you were a lawyer? 

Mr. GRIJALVA. No. 

Mr. SCHWEIKERT. And all this time. I am going to stop coming 

to you for my legal advice. I sit up here, and one of the reasons 

I had also requested to be part of this panel is I like to think I am 

one of the few people in this room that may have a somewhat 

unique view of what is going on here. In 1992, I was co-chair of 

the Indian Affairs Committee in Arizona. And one of the greatest 

years of my life because I learned so much I did not know. But in 

1993, so we are going back 20 years, I was blessed. I became the 

Majority Whip in my State house. And I was the lead negotiator 

for the House in regards to the IGRA compacts with that administration, the Symington Administration, and I literally lost a year 

of my life bathing in IGRA. And I hoped I would never, ever have 

to go near this again and somehow it continues to haunt me. 

And so here we are back. And what breaks my heart is that I 

hear some of the fussing, but I sat hour after hour after hour after 

months after month, almost a year of this very part of this discussion of would gaming be restricted to aboriginal land. And we were 

assured over and over and over and over, and that is how we slowly moved a State that we came this close to ending Arizona’s lottery, getting rid of the lottery so there would be none of this class 

gaming at all in the State. So I do understand what has gone on. 

There is a lot of history behind this. 

And there are a couple of questions I want to ask. President 

Enos, you happen to be one of those lawyer type people, aren’t you? 

And my question, and I will ask everyone else also this, when a 

tribe is in Federal court on one of these issues, can they waive sovereign immunity? 

Ms. ENOS. Yes, yes, we can. We are sovereigns. 

Mr. SCHWEIKERT. To my Chairman of the Tohono O’odham, 

would the community be willing to waive their sovereign immunity 

to actually get a straight up answer? 

Mr. NORRIS. The community? 

85

Mr. SCHWEIKERT. Would the Tohono O’odham tribe be willing to 

waive sovereign immunity in Federal court to get a straight court 

ruling? 

Mr. NORRIS. I am not a lawyer. President Enos is a lawyer. She 

did not answer you. She just sort of wiggled her hand. 

Mr. SCHWEIKERT. Well, this one is not about President Enos——

Mr. NORRIS. I am not in——

Mr. SCHWEIKERT. It is for you as your opinion for your community. 

Mr. NORRIS. I would have to yield to my attorney on that. 

Mr. SCHWEIKERT. Alright. President Enos, one of the reasons 

that I have actually stuck my nose into this is because I have the 

history of the fights with some of the horse tracks and then dog 

tracks and some of the others. And part of the education for everyone in the room is Arizona is a very easy initiative and referendum 

State. How long have you been hearing about that when this happens, our friends who want expanded gaming will be out there on 

the street with their petitions? 

Ms. ENOS. For years, for several years, particularly there was, as 

I mentioned, the bill for the State legislature but also there has 

been talk of an initiative for the last 2 years or so. The Arizona 

Indian Gaming Association, of which we are all members here in 

this tribal representatives here and others, fends off outside nonIndian gaming interests. 

Mr. SCHWEIKERT. What happens to the compacts if tomorrow we 

had ‘‘Racinos’’ or community choice Class III gaming? 

Ms. ENOS. The initiative that could be run by non-Indian interests could invoke what I just referred to as the ‘‘poison pill.’’ And 

according to the language of the compact, if a non-Indian entity is 

eligible for gaming, whether it is by virtue of State legislation or 

an initiative or referendum type, then the State compact, the State 

of Arizona is open to Class III gaming. 

Mr. SCHWEIKERT. President Enos, at that point, compacts are 

blown up? 

Ms. ENOS. That is exactly a good way to describe it. 

Mr. SCHWEIKERT. Remember, Arizona has what, 22 tribes, 21 

tribal communities or land-holding communities, correct? 

Ms. ENOS. Yes. 

Mr. SCHWEIKERT. What happens to our rural tribes that right 

now have machine transfers in that situation? 

Ms. ENOS. The tribes have gaming exclusivity in Arizona. And 

people like the Cocopah Tribe, which is in Mr. Grijalva’s district, 

enjoys that exclusivity and is able to build a foundation of economic 

development through the gaming revenues. If the State went statewide gaming, the tribes would no longer have exclusivity. We 

would have to compete with non-Indian interests, particularly 

those tribes that have very limited market in rural areas. 

Mr. SCHWEIKERT. Madam President. Thank you, for your tolerance, Mr. Chairman. 

Mr. YOUNG. Mr. Grijalva. 

Mr. GRIJALVA. Let me, I have some more questions for President 

Enos and for Chairman Norris. We are dealing with a lot with conjecture. And the strength of the legislation before us is that it is 

conjecture. And so as a piece of legislation to undo another act of 

86

Congress and potential decisions by courts where conjecture, what 

if, and this will happen, and ‘‘Chicken Little will rule the world’’ 

and ‘‘the sky will fall,’’ and we have to pass this legislation. In the 

decision, the court concludes that the parties did not reach such an 

agreement, and that the nations’ construction of a casino in the 

Glendale area will not violate the compact. That is in a decision 

but it is still not valid enough for this discussion on the legislation. 

Mr. Norris, we are talking about tribal sovereign immunity. And 

the argument that often the nation uses sovereign immunity as a 

shield in the lawsuit so that Congress now needs to step in and 

pose its restrictions that says Arizona intended to impose on gaming in Arizona because of the evoking sovereign immunity. Did the 

State of Arizona insist on preserving its sovereign immunity in the 

tribal State compact, did any of the tribes involved in the litigation 

against you insist on retaining that? 

Mr. NORRIS. Mr. Chairman, members of the Committee, Mr. 

Grijalva, sovereign immunity is a right that is afforded to all governments regardless of whether you are a Federal Government, 

State government, tribal government, whatever. And it is virtually 

important, an important safeguard for true self-determination. 

Having said that, the nation gave up its right to sovereign immunity when it entered into a tribal-state gaming compact for the purposes of allowing the enforcement of that compact. However, when 

it comes to frivolous claims based on non-legal arguments, not 

based on the plain language of the compact, we will not waive this 

right. 

Mr. GRIJALVA. And in your experience, based on the urging—on 

the point that was being made about the O’odham Nation, is it 

your experience that tribal governments routinely evoke sovereign 

immunity against a suit over contract disputes or other issues? 

Mr. NORRIS. Sovereign immunity and the question of whether or 

not the tribe will waive sovereign immunity is a standard consideration amongst all tribes in contract disputes or contract negotiations. 

Mr. GRIJALVA. I think you mentioned the point that the immunity issue, sovereign immunity is the key to the concept of self-determination. So, it is kind of odd, and the precedents that are being 

set here, should be frightening not just to the decision on this particular case but to the precedents that are being set generally 

across the board. I am not a member of any nation regrettably, a 

native nation, but if I was, the issue of tribal immunity would be 

something that I would be protective of and never waive because 

in doing so, I am giving up the core driver of my self-determination. And to blatantly say that you have to give it up after the 

court has ruled against somebody I think begs the question about 

the kind of precedent and respect that we have for that concept. 

The other issue that I wanted to ask you about, Mr. Norris, before my time runs out is if we change the terms of the contract, 

which I think is being done by this legislation, what prevents water 

settlements, other tribal-State-Federal agreements land-use issues 

from being equally open to the interpretations and the limitations 

as H.R. 1410 is setting? 

Mr. NORRIS. Mr. Chairman and members of the Committee and 

Mr. Grijalva, thank you for that question. It is of grave concern not 

87

only to the Tohono O’odham Nation but it should be of grave concern to all tribes not only in the State of Arizona but all tribes nationally that this particular legislation does in fact set a dangerous 

precedent. It is a dangerous precedent because if someone out there 

dislikes certain language within a particular bill, in fact in our case 

our land and water settlement, and some 25, 30 years later, decides they do not like certain language, and they are going to go 

change that language against the settling tribe’s wishes, that is 

stuff that goes on in the 19th century. 

That is the error of U.S. history when the United States violated 

treaties, violated agreements, violated agreements between tribal 

nations. If this bill passes, it would have that level of impact and 

precedent. And I think that we need to be extremely concerned 

about that because if the United States Government can change 

the law, a settlement of land and water, unilaterally against the 

settlement tribe’s wishes, then how protected are other agreements 

with any other nation throughout the United States? 

Mr. GRIJALVA. I yield back, Mr. Chairman. Thank you. I appreciate the indulgence to go over time for the answer. 

Mr. YOUNG. Thank you. 

Mr. LAMALFA. Thank you, Mr. Chairman. 

Mr. YOUNG. You are up. I do not want to slaughter your name 

too. 

Mr. LAMALFA. Do you want me to help you. Italian, LaMalfa. 

Mr. YOUNG. OK, LaMalfa. 

Mr. LAMALFA. LaMalfa. 

Mr. YOUNG. Alright. 

Mr. GRIJALVA. Young, you have got to work on the vowels. 

Mr. LAMALFA. I just wanted to weigh in on this as I have studied 

this issue and have had a chance to meet with folks on it. And also 

we experienced in California my support for H.R. 1410 in that it 

does keep the agreements and keeps within the spirit of how tribal 

gaming should be as envisioned by IGRA. And so, being from California, our neighboring State of Arizona, that this measure I think 

is very key to keep, I think essentially in the long term keep the 

peace but keep those agreements and not have an outbreak all over 

that State but also I think other States of what has been called the 

‘‘off reservation gaming moves.’’ So it is very clear to me that this 

is the right direction to go. 

And I think if we want to have order to things here, that this 

is indeed a very important measure to keep the agreements that 

have been made and not have off reservation moves that I think 

are very detrimental to the tribes, to the agreements, what I think 

the people, the citizens, have in mind of how the gaming should appear. So I appreciate being able to weigh in. 

And, Mr. Chairman, with the back and forth of other committees, 

et cetera, I want to have an opportunity to pose a thought or a 

question on H.R. 841, a little bit later or right now. 

Mr. YOUNG. Any time you want to. 

Mr. LAMALFA. OK, sir. Just more of a thought on this too, what 

I want to get out there is that on H.R. 841, there are some problems there with the way that one tribe has been kind of dealing 

with the others in the area as well with the Grand Ronde and up 

in that direction, but I think the bill could still be supportable if 

88

there was a commitment that the land involved would not be one 

that would be involved in gaming. Has that been established by 

this Committee earlier that limiting gaming from that or for its 

other uses would be a direction this Committee wants to go with 

H.R. 841? 

Mr. YOUNG. We are keeping that under consideration at this 

time. 

Mr. LAMALFA. OK, alright, I just wanted to get that out there. 

Thank you, Mr. Chairman. 

Ms. HANABUSA. Mr. Chairman, when Mr. Grijalva was asking 

some questions, he mentioned my name along with Chairman Norris, but I did not have a chance to respond. May I do so now? 

Mr. YOUNG. We are going to do another round of questions if you 

are ready to go. 

Mr. ROSENBRUCH. But, Mr. Chair, I apologize profusely. I do 

need to depart but if someone had a question for me, I would be 

delighted to remain a few more minutes. 

Mr. YOUNG. I do not know if anybody has got a question, Jimmie. 

You made a good presentation. Do you have a question? 

Mr. GRIJALVA. Yes, but in the interest of collective time, I will 

submit them in writing. 

Mr. YOUNG. Yes. 

Mr. GRIJALVA. And all of us can get an answer. 

Mr. YOUNG. OK, good. 

Mr. ROSENBRUCH. Thank you. 

Mr. YOUNG. OK, thanks, Jim. 

Mr. ROSENBRUCH. Thank you very much, glad to be here. We appreciate it. 

Mr. HANABUSA. Thank you for being here. Thank you, Mr. Chair. 

This is actually for both Mr. Norris and Ms. Enos. And what I 

would like for both of you to do is, if you disagree, to let me know. 

First of all, the issue that we have before us is really one regarding 

the Indian Gaming Regulatory Act. And it permits Class III gaming on Indian lands. But do we agree that part of that statute, 25 

U.S.C. 2701 to 2721, basically says you can do it in conformance 

with a tribal-State compact? In other words, there has got to be an 

agreement between the tribe and the State, do we agree with that? 

Ms. ENOS. That is right. 

Mr. NORRIS. Yes, Congresswoman. 

Ms. HANABUSA. OK. Now, given that, do we also agree since 

there has been issues of sovereign immunity and its waiver, and 

that is something that I also brought up with I believe it was the 

testimony of Mr. Black, that as a function of the Indian Gaming 

Regulatory Act, or IGRA, that you must also waive sovereign immunity as to the compact. And that is specifically found in 25, section 2710, subsection D, and it goes on. Do we agree with that? 

Ms. ENOS. Yes, that is correct. 

Mr. NORRIS. Yes, correct. 

Ms. HANABUSA. So the issue of sovereign immunity, which I 

agree with my colleague, I believe is sacred for any native persons 

and nations. However, in the case when one exercises IGRA, what 

you have done is you have agreed in that process to waive it as to 

issues regarding the compact itself. We are in agreement on that, 

right? 

89

Ms. ENOS. Yes. 

Mr. NORRIS. Yes, I agree. 

Ms. HANABUSA. And that is why we have so many of your lawsuits because you are suing on those issues which the Federal court 

has jurisdiction over, is that correct? 

Mr. NORRIS. Yes, correct. 

Ms. ENOS. That’s correct. 

Ms. HANABUSA. And I agree with Mr. Norris that what the court 

has found over the period of time is that the lands, if purchased 

or traded pursuant to the settlement, would then become or could 

become Indian country if so designated and if the Secretary of the 

Interior so accepts? We understand that to be a ruling, is that correct? 

Mr. NORRIS. Yes, Ranking Member. 

Ms. ENOS. We don’t approve. 

Ms. HANABUSA. I am not questioning whether you have a right 

to appeal, I am just saying that we have a preliminary ruling to 

that effect. And we all know everything that has been said so far 

has a right to appeal. Now, having said that, do we know whether 

the Secretary of the Interior has accepted those lands into Indian 

country. 

[Gavel.] 

Mr. YOUNG. You know how I feel about cell phones in the room. 

And that is the second time that has gone off. The next time you 

are out of the room. Does everybody understand that? Anybody not 

understand it? Good. Shut it off. Go ahead. 

Ms. HANABUSA. He just interrupts whenever he wants. Mine is 

off. I just want you to know, mine is off. So has it been accepted, 

the purchase, the proposed property, has it been accepted by Interior as Indian country? 

Ms. ENOS. No. 

Ms. HANABUSA. It has not? 

Ms. ENOS. No. 

Ms. HANABUSA. Is that true, Mr. Norris? I am just trying to get 

the facts. 

Mr. NORRIS. Ranking Member Hanabusa, what has happened 

was back I believe in 2009, after the Department of the Interior 

was taken to court on their hesitation, reluctance, decision to not 

move forward and take this land into trust, my nation filed a lawsuit against the Department of the Interior essentially forcing them 

to do what the Federal law, statute, requires them to do. In the law 

it says, ‘‘At the request of the tribe, the Department of the Interior 

shall take this land into trust.’’ It is a mandatory acquisition. 

And so when they failed to do that, we filed a lawsuit. Just prior 

to the decision of that court, the Department of the Interior published in the Federal Register their decision to move forward and 

take that land into trust. 

Ms. HANABUSA. OK. Now, let me also understand that is it part 

of this compact, the consideration of this compact, the fact that 

only Native tribes will be able to game in Arizona? 

Ms. ENOS. That is the status right now. 

Ms. HANABUSA. That is the status right now? 

Ms. ENOS. Yes. 

90

Ms. HANABUSA. So when Proposition 202 went to the people, it 

was decided at that time that what would happen is that only the 

Native tribes would be able to game in Arizona. And, as a result 

of that, this compact was entered into? 

Ms. ENOS. That is correct. 

Mr. NORRIS. That is correct. 

Ms. HANABUSA. And some tribes gave up another casino, and 

some tribes went in by having your gaming machines, as I understand it, become part of certain larger casinos so that tribes, smaller tribes, have an economic benefit from all of this, is that true? 

Ms. ENOS. Every tribe was allocated after 2 years of negotiation 

a certain number of facilities, and that is correct. The metro tribes 

in Phoenix, four metro tribes gave up the rights that we had in the 

earlier compacts. And the agreement that you are referring to, the 

transfer eligibility of an allocated amount of machines by the nongaming tribes, actually was part of the resolution. 

Ms. HANABUSA. Thank you, and I yield back. My time is up. 

Mr. YOUNG. Mr. Gosar. 

Dr. GOSAR. Yes, President Enos, you know you did not have a 

chance to answer my Arizona colleague’s question, would you like 

to answer that question. You brought it up, and I want you to be 

able to answer a question. Chairman Norris had the opportunity. 

Ms. ENOS. Mr. Grijalva was asking about the waiver of sovereign 

immunity, and it should be noted that tribes routinely waive sovereign immunity, for instance, in contract cases, in bank financing 

structures, agreements. And that is a limited waiver of sovereign 

immunity. For instance, we do it for those sorts of agreements. 

Otherwise, we would not be able to conduct business. No outside 

businesses would want to deal with us. And we do it through arbitration clauses and subject ourselves under the limited waivers of 

sovereign immunity to Federal court jurisdiction arbitration. 

Dr. GOSAR. And this would definitively have financial implications, would it not? 

Ms. ENOS. Absolutely. 

Dr. GOSAR. Mr. Norris, are you aware of what happened in the 

IRS case here in which testimony was utilized in court or can be 

utilized in court? 

Mr. NORRIS. Mr. Chairman and members of the Committee, Congressman Gosar, I am not. 

Dr. GOSAR. Things that you say in front of Congress are admissible into court. And my colleague here, David Schweikert, asked 

a question in regards to would you waive sovereign immunity. And 

what I would like for the record is I would like you to consult your 

attorneys, and I would like an answer back. 

Let me ask you a question: When we are dealing with this because you said ‘‘frivolous lawsuits,’’ I want to address the frivolous 

lawsuit. You purchased, you acquired this piece of property through 

a third entity, right? 

Mr. NORRIS. Yes, sir. 

Dr. GOSAR. OK, and that is typical. I have no problems with that. 

But given the circumstances with this tribal agreement on the compact, do you think that knowledge of that piece of property being 

sold, you would actually have been able to purchase that contract 

or that property without that? 

91

Mr. NORRIS. I am not sure I understand your question. 

Dr. GOSAR. So without a third party, and they knew that it was 

the Tohono O’odham Nation with this contract, that you would actually be able to purchase this contract, this piece of property, you 

would have caused a little bit more of a problem, wouldn’t it? 

Mr. NORRIS. Mr. Chairman and members of the Committee, Mr. 

Gosar, the reason why the nation had a third party do the purchase for us is because it was public knowledge when 99503 law 

was passed, the nation was also appropriated $30 million to purchase replacement land up to 9,880 acres. 

Dr. GOSAR. But they did not know about this piece of property 

within Glendale, did they? 

Mr. NORRIS. Our experience has been that we were never—there 

was a challenge in trying to obtain fair market value——

Dr. GOSAR. I understand. 

Mr. NORRIS [continuing]. For the property. And, in fact, one of the sellers of the piece of property wanted the full $30 million that 

we were appropriated to do this. 

Dr. GOSAR. Well, I am going to speed you up a little bit. I understand that, but it would have been a little harder to get this piece 

of property is what I am after. Now, let me ask you something in 

tribal councils, in consultations in the tribe, was there not a cover 

up in regards in the tribal dictations and in minutes taken by the 

tribal courts or tribal council in regards to trying to hide this piece 

of property from the rest of the tribes in regards to this gaming aspect? 

Mr. NORRIS. Not to my knowledge. 

Dr. GOSAR. That is what sovereign immunity is trying to hide, 

is it not? 

Mr. NORRIS. Not to my knowledge. 

Dr. GOSAR. President Enos, are we aware that there is this information in regards to council dictations poignantly? 

Ms. ENOS. Yes, that is accurate. In the discovery process, we received documents and evidence that showed that VDI or VDG, a 

corporation of the Tohono O’odham Nation had discussions along 

with some council members, and the quotations from those tapes 

and transcripts indicate that they were discussing amongst themselves to keep this purchase secret from the other tribes, particularly Salt River and Gila River because, as they said, ‘‘Don’t you 

think they are going to jump on us?’’ They also purposely, according to those documents, kept this from the State of Arizona. And 

those were not available to us until we engaged in the litigation 

with them. 

Dr. GOSAR. There was a comment made, President Enos, that 

there was a compact between the Tohono O’odham and the U.S. 

Government. We also have an agreement with all the rest of the 

tribes, do we not, as Congress and the U.S. Government? 

Ms. ENOS. Yes, there is a standard compact that Governor Hull 

wanted with the tribes in Arizona in about 2000. That is why we 

had to work together to come up with the standard compact. 

Dr. GOSAR. I appreciate the inquiry of questions. 

Mr. YOUNG. I want to thank the panel. 

Mr. GRIJALVA. Mr. Chairman? 

Mr. YOUNG. Go ahead. 

92

Mr. GRIJALVA. One other turn on the merry-go-round, if I may? 

President Enos, and thank you for being here, one of the things 

that continues to puzzle me is that this issue of gaming in that 

metropolitan Phoenix area, it was so important to all the parties 

involved, the State, as my colleague mentioned, in those negotiations, the Governor, and obviously to the tribes in and around that 

area, and it was important, as somebody stated, to the successful 

passage of Proposition 202. In your expertise and knowledge, why 

was it not specifically spelled out in the compact, why was that 

such a critical piece of information, one that we keep conjecturing 

about and going on and on, why was it not spelled out in the compact? 

Ms. ENOS. Because of trust that we had amongst each other as 

tribes and the agreement in principle that we entered into to work 

together as a coalition based on trust, and that we would rely on 

each other. And the Tohono O’odham Nation signed this document, 

along with the 17 other tribes and agreed that if a tribe had to 

take an action inconsistent with the interests of the coalition, that 

it would disclose that to us. And we went forward with trust in this 

coalition. And then we worked with the Governor and established 

negotiations with the Governor. And there were over 35 meetings. 

And out of those meetings, the Governor decided to support and endorse what the compact was finally arrived at. And we decided, 

with the State, and the tribes, to take that to the voters. And there 

were those meetings where all the tribes were involved in developing that message that we were going to take to the voters for 

Proposition 202. I have here a document, and I would ask that it 

be put into the record. It encompasses——

Mr. GRIJALVA. If I may, let me ask Mr. Norris——

Ms. ENOS [continuing]. Many of the statements. 

Mr. GRIJALVA. Your subject is going to be in the record, correct? 

Their item? 

Mr. YOUNG. Without objection, the document will be submitted 

for the record. 

[The information submitted for the record by Ms. Enos has been 

retained in the Committee’s official files:] 

Mr. GRIJALVA. Thank you. 

Ms. ENOS. Thank you. 

Mr. GRIJALVA. Chairman Norris, it was not necessary according 

to esteemed President Enos, it was not necessary to spell it out in 

the compact because there is a trust factor involved, and 

H.R. 1410, as I understand the logic, is a reaction to broken trust. 

This compact, I remember the campaigns around 202, all the advertising that went on, and part of it I think is that there was a 

leaflet that said, ‘‘No gaming in the Phoenix area.’’ I mean it is like 

some of my colleagues that run, ‘‘I will never cut benefits or Social 

Security,’’ and then 2 weeks later, they are voting for CPI or something else. It is just things that happen. 

Mr. YOUNG. Just like the President. 

Mr. GRIJALVA. Nobody is immune from that, my friend. So I 

would say talk about trust, and I think also talk about the fact that 

as we have tried to define that decision through the courts and administrative hearings, the trust issue, and what role an underVerDate 0ct 09 2002 15:12 May 16, 2014 Jkt 000000 PO 00000 Frm 00096 Fmt 6633 Sfmt 6602 X:\03INDI~1\03MY16~1\5-16-1~1\80981.TXT MARK
93

standing has had in the decisions that the courts have made, if 

there was an understanding? 

Mr. NORRIS. Mr. Chairman and members of the Committee, I 

would just respond by saying that much of the comments by my 

colleague in tribal leadership shared not only with Mr. Gosar’s response but also to you, Mr. Grijalva, response were items as part 

of the volumes and volumes of deposition and discovery that occurred over the past 21⁄2, 3 years or so. And those were volumes 

of documents that were considered by the court in the court’s decision. 

What I would like to say about the agreement in principle is that 

the Federal courts ruled that the agreement in principle was not 

binding on any of the tribal members of the Arizona Indian Gaming Association. And I want to cite specifically that the agreement 

in principal explicitly states that, ‘‘Nothing in this agreement shall 

be construed to impair the tribal leader’s ability to take any action 

inconsistent with the actions or positions of other tribal leaders.’’

Salt River and Gila River and other tribal members of the Arizona Indian Gaming Association, and the State of Arizona were 

aware of the Gila Bend Indian Reservation Lands Replacement 

Act, and they were also aware that the Nation could acquire gaming eligible lands under that statute. 

Now, my final comment on your question, Mr. Grijalva, is that 

the courts concluded, and I will quote from the decision that, 

‘‘Plaintiffs could not reasonably have expected that the compact 

would ban new casinos in the Phoenix area. This is not only from 

the complete absence of any such ban in the compact language but 

also from the integration clause and its declaration that no other 

agreements or promises are valid or binding.’’

So there cannot be any sub-agreements. There cannot be—IGRA 

does not authorize any back door agreements by anybody. The compact is the rule of law. IGRA is the rule of law. We have demonstrated time and time again that we have been abiding by not 

only our land and water settlement of 99503, we have been abiding 

by our compact. And we will continue to abide by it and the Indian 

Gaming Regulatory Act. 

Thank you, Mr. Chairman. Thank you, Mr. Grijalva. 

Mr. YOUNG. I want to thank the panel and thank the Committee. 

Ms. HANABUSA. Mr. Chair, I have a housekeeping matter. 

Mr. YOUNG. Housekeeping matter? 

Ms. HANABUSA. We have provided for the record certain materials that we would like to be included. 

Mr. YOUNG. And that is without objection. 

[The information submitted for the record by Ms. Hababusa has 

been retained in the Committee’s official files:] 

Ms. HANABUSA. Thank you. 

Mr. YOUNG. Anybody else have anything for the good of the 

order? With that, the Committee is adjourned. 

[Whereupon, at 5:37 p.m., the Subcommittee was adjourned.]

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[Additional Materials Submitted for the Record]

PREPARED STATEMENT OF THE HONORABLE EDWARD J. MARKEY, RANKING MEMBER, COMMITTEE ON NATURAL RESOURCES

H.R. 740—SOUTHEAST ALASKA NATIVE LAND ENTITLEMENT FINALIZATION AND JOBS

PROTECTION ACT

H.R. 740 would allow the Sealaska Corporation, a regional corporation established 

under the Alaska Native Claims Settlement Act of 1971 (ANCSA), 43 U.S.C. §§ 1601 

et seq., to obtain its remaining land entitlement under ANCSA from portions of the 

Tongass National Forest outside of the withdrawal areas to which Sealaska’s selections are currently restricted by law. 

This is the third Congress in which a bill benefiting Sealaska has been introduced 

and considered by the Natural Resources Committee. While H.R. 740 is an improvement over previous versions, reflecting some changes requested through weigh-in 

from constituencies in southeast Alaska, the U.S. Forest Service, and the Alaska 

congressional delegation, it continues to be unnecessary. Nothing but Sealaska is 

stopping Sealaska from finalizing its entitlement within the areas that the Corporation itself helped identify to satisfy the remainder of its ANCSA entitlement. Indeed, 

conveyance of those lands has been suspended, at Sealaska’s request, while the Corporation pursues legislation allowing it to select lands from entirely new areas of 

the Tongass National Forest. 

H.R. 740 also continues to risk stalling the implementation of the U.S. Forest 

Service’s future management goal of transitioning southeast Alaska’s economy from 

old-growth logging to more sustainable management of the forest based on secondgrowth timber. Sealaska claims to share this goal, but many of the parcels targeted 

by Sealaska in H.R. 740 contain a high percentage of the Tongass’ rarest large oldgrowth trees. Conveying these lands to the Corporation for logging will severely 

limit the Forest Service’s ability to complete this critical transition for the remainder of the forest. 

Furthermore, even though it is beyond dispute that logging activities near rivers 

and streams can lead to erosion and flooding that degrade water quality and harm 

fish populations, H.R. 740 does not provide any protections for salmon streams 

which support a valuable public resource or contain conservation areas to balance 

potential clear-cutting that Sealaska has been known to do. The Tongass’ 5,500 

breeding salmon streams and rivers are a mainstay of the region’s economy and its 

subsistence way of life. For example, Keete Inlet on North Prince of Wales Island, 

within which Sealaska has targeted over 10,000 acres for conveyance under 

H.R. 740, is a nearly pristine watershed that has been identified as one of the highest salmon-producing watersheds in the forest and determined to have a high wildlife value by Trout Unlimited, Audubon Alaska and the Nature Conservancy. Should 

H.R. 740 continue to ignore necessary protections to shield salmon streams from 

harm and fail to identify conservation areas, the local economy could be devastated, 

and a good portion of a national treasure lost. 

The Administration testified against H.R. 740 at a May 16, 2013 Subcommittee 

on Indian and Alaska Native Affairs hearing, citing ongoing negotiations on a compromise bill, S. 340, that was introduced by Senators Murkowski and Begich. I understand extensive efforts have been made by the U.S. Forest Service, Sealaska, the 

environmental community, the Alaska congressional delegation, and impacted local 

communities to come to a balanced solution that works for all parties on the most 

controversial remaining issues, including providing for stream buffers and conservation areas under the bill. My hope is that, moving forward, any legislation for the 

Tongass should ensure that the U.S. Forest Service’s transition goals can be met, 

and should provide long-term protection for the thousands of tourism and fishing 

jobs that rely on a healthy Tongass. 

PREPARED STATEMENT OF THE HONORABLE PAUL A. GOSAR, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ARIZONA

Today I thank the Chairman and Ranking Member of this Subcommittee for giving swift consideration of the Keep the Promises Act (H.R. 1410). I was an original 

cosponsor of this legislation when my friend Congressman Trent Franks introduced 

it last month, and I strongly believe its swift passage is critical to the future of gaming in my State. 

This Committee analyzed this issue in-depth last Congress, so I won’t rehash the 

background of the issue extensively. In 2002, the voters of Arizona approved what 

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was then known as Proposition 202, or the 17-tribe initiative. True to its name, the 

17-tribe initiative reflected a meaningful consensus among the tribal and State governments present in Arizona, and established a balanced approach to gaming activity throughout the State that considers the interests of urban tribes, rural tribes, 

and Arizona’s communities. Many tribes gave up the right to build their own casino 

in order to share in the revenues from gaming as a whole. In addition, a portion 

of tribal gaming revenues are now set aside to provide health care, education, and 

needed services to all tribes, not just the ones in major metropolitan areas. This 

compact, which was overwhelmingly approved by the people of Arizona, is the foundation of Indian gaming in my State. 

In 2003, under the name of a third party, the Tohono O’odham Nation purchased 

134 acres of land very near the University of Phoenix Stadium in Glendale, Arizona. 

The nation has since transferred these lands to its own name and has asked the 

Secretary of the Interior to take these lands into trust. Tohono O’odham has made 

it very clear that once placed into trust status, they will seek to establish a Las 

Vegas style casino on parts of those lands. 

There is no doubt about the fact that the Federal Government compensated the 

Tohono O’odham Nation for the destruction of its land; the original 1986 Gila Bend 

Law allows not only for monetary compensation, but also for the purchase of additional lands to replace the lands that the Federal Government flooded. I support the 

nation asserting its very limited legal rights in this area. The controversy is centered around the proposed construction of a Vegas style casino on this land, in 

downtown Glendale. 

My support for H.R. 1410 is not rooted in opposition to one casino. I support Indian gaming, and gaming as a whole. In fact, I am a member of the House Gaming 

Caucus. The caucus is a group of Congressional leaders focused on educating Members on gaming-related issues and working to identify key policy areas that can be 

advanced at a Federal level, to enhance the economic impact of gaming around the 

country. I simply believe gaming should be prohibited on the lands in Glendale, at 

least through the life of the Arizona compact. The key part of that compact was a 

tribal agreement, including the nation, that states no casinos would be permitted 

in metropolitan Phoenix for at least 23 years. The nation was very clear back when 

the compact was negotiated that if it operated a fourth casino that casino would be 

located in rural Arizona, not metropolitan Phoenix. 

H.R. 1410 simply prohibits gaming on lands taken into trust by the Secretary 

within the Phoenix metropolitan area, until January 1, 2027. It is supported by six 

of the tribes that took part in the Prop 202 agreement—the Salt River Pima-Maricopa Indian Community, the Gila River Indian Community, the Hualapai Tribe, the 

Pueblo Zuni, the Cocopah Indian Tribe, and the Fort McDowell Yavapai Tribe. I 

would like to submit an op-ed those tribes placed in the Arizona Republic, our 

State’s largest newspaper, entitled ‘‘Tribal Leaders: Bill would safeguard casinos 

deal’’ for the record. 

Additionally, I have letters of support from the Town of Fountain Hills, the City 

of Glendale, the City of Tempe, the Town of Gilbert, and the City of Litchfield Park. 

These are all municipalities, within the Phoenix metropolitan area, that are concerned with a violation of the State compact. Mr. Chairman, I ask that those letters 

also be included in the record. 

My support for the Keep the Promise Act is about protecting the integrity of my 

State’s gaming compact and ultimately the future of gaming in Arizona. I am also 

concerned that if our legislation is not signed into law, a dangerous precedent could 

be set leading to the expansion of off-reservation casinos in Arizona and other 

States. 

I look forward to hearing from our witnesses, and I hope this committee will move 

H.R. 1410 quickly. 

PREPARED STATEMENT OF THE HONORABLE TRENT FRANKS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ARIZONA

H.R. 1410—KEEP THE PROMISE ACT OF 2013

Dear Mr. Chairman and members of the Subcommittee, 

I want to thank you for holding this hearing and allowing me to submit testimony 

on H.R. 1410, the Keep the Promise Act. This straightforward bill prohibits Indian 

gaming in the Phoenix metropolitan area until the expiration of the current State 

gaming compact in 2027. 

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Mr. Chairman, this debate is not about jobs or economic development, or any of 

the other tangential points that some would like to use to distract from the real 

problem with the casino. 

Some who favor allowing construction to go forward seem to be missing the point: 

When Arizona’s gaming compact was voted into law, both the voters and tribes of 

Arizona were promised one thing, while ultimately receiving something else entirely. This bill is not about a vendetta. Nor is it about ending gaming in Arizona. 

It is, very specifically, about ensuring that the limits on casinos specifically promised back in 2002 during debate on Proposition 202 are realized. 

Arizona tribes negotiated collectively through the Arizona Indian Gaming Association (‘‘AIGA’’). Tribal leaders in AIGA agreed among themselves and with the State 

that there would not be any additional casinos in the Phoenix metropolitan area beyond the seven that were then in operation by Salt River, Gila River, Ak-Chin, and 

Fort McDowell. 

The four Phoenix-market tribes made it clear in discussions with other tribes and 

the State that they agreed to a reduction in the number of facilities specifically for 

the purpose of ensuring that only the existing casinos in the Phoenix market would 

be allowed under the compacts. 

The drafting of the compact occurred in 2002 between the Governor and the AIGA 

tribes, which eventually became SB 1001 in the Arizona State legislature, and then 

a ballot initiative, Proposition 202. 

During the 2002 election, the Arizona Secretary of State published the Arizona 

Ballot Proposition Guide, a pamphlet containing arguments for and against 

Proposition 202. That pamphlet contained a statement of support for 

Proposition 202 by Governor Jane Dee Hull, in which she stated that ‘‘[v]oting ‘yes’ 

on Proposition 202 ensures that no new casinos will be built in the Phoenix metropolitan area and only one in the Tucson area for at least 23 years.’’ The pamphlet 

also contained an argument in favor of Proposition 202 signed by tribal leaders, including Tohono O’odham Chairman Edward Manuel. 

Chairman Ned Norris, Jr., the nation’s current chairman, publicly supported 

Proposition 202 in appearances on behalf of AIGA. In urging Arizona voters not to 

choose competing Propositions 200 or 201, Norris said that Proposition 202 would 

not open gaming into cities. 

Mr. Chairman, assuming for a moment that the casino weren’t in violation of 

Proposition 202 and the intent of voters, many of the arguments being brandished 

by proponents of the casino still remain dishonest. These proponents like to claim 

the proposed casino would create many jobs for the West Valley. However, when the 

City of Glendale requested the data and methodology behind the numbers being repeated to the public, the request was denied by the tribe. 

On the other hand, when the City of Glendale, per State law, put together a plan 

in 2002 outlining possible uses for the land, estimates put the number of jobs created under the city’s plan at 5,756 high-quality jobs. That’s excluding the construction jobs that would also be created. Furthermore, the city’s plan, at build-out, 

would have created $10.89 million in construction sales tax and, more importantly, 

$5.6 million annual recurring revenue. The casino, on the other hand, would result 

in NO sales tax revenue for the City of Glendale. It becomes easy to see the many 

reasons why the City of Glendale so strongly opposes the effort to forcibly build this 

casino in the heart of the City of Glendale. 

Mr. Chairman, the fallacious arguments used by casino supporters highlight the 

disingenuous nature of assertions that building the casino is really just about creating jobs and economic development for the surrounding area. 

Mr. Chairman, thank you again for holding this hearing today. It is my hope that 

at the conclusion of today’s hearing, the members of this Subcommittee will appreciate the importance and necessity of this legislation. 

LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE’S

OFFICIAL FILES

FTR ON H.R. 623 (YOUNG OF AK), ‘‘ALASKA NATIVE TRIBAL HEALTH CONSORTIUM LAND

TRANSFER ACT’’

Submitted by witness, Andy Teuber Board Chair and President, Alaska Native Tribal Health Consortium FTR: 

1. Exhibit A.—Map of Alaska illustrating the villages many hundreds of miles 

outside of Anchorage. 

2. Exhibits B and C.—Maps and illustrations of what the ANTHC is seeking to 

obtain title to (it is currently being used for parking). 

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FTR ON H.R. 740 (YOUNG OF AK), ‘‘SOUTHEAST ALASKA NATIVE LAND ENTITLEMENT

FINALIZATION AND JOBS PROTECTION ACT’’

Submitted by Ranking Member Colleen W. Hanabusa FTR: 

1. David Beebe, Greater Southeast Alaska Conservation Community position 

paper. 

2. Dave Squibb, Chair, Point Baker Community Association. 

3. Donald Hernandez, Fisherman, Point Baker, Alaska. 

4. Andrew Thoms, letter to the editor. 

5. Andrew Thoms, Director, Sitka Conservation Society letter to IANA Subcmte 

Members. 

6. Bruce Baker, retired Deputy Director of AK Dept. Fish and Game’s Habitat Division letter. 

7. Eric Myers, Policy Director, Audubon Alaska, letter to Chairman Young. 

8. Clarice Johnson, Sealaska Shareholder, letter to the editor from the Sitka Sentinel May 15, 2013. 

Submitted by witness, Mr. Byron Mallott, Member, Board of Directors, Sealaska Corporation: 

1. Draft document funded by the Forest Service and authored by Dr. Charles W. 

Smythe and others, ‘‘A New Frontier: Managing the National Forests in Alaska, 

1970–1995’’ (1995) (‘‘A New Frontier’’). 

2. A paper by Walter R. Echo-Hawk, ‘‘A Context for Setting Modern Congressional 

Indian Policy in Native Southeast Alaska (‘‘Indian Policy in Southeast Alaska’’). 

Submitted by witness, Mr. Jimmie Rosenbruch FTR: 

1. Letter from Steven H. Perrins, Alaska Guides Association. 

2. Letter from Gary Gearhart, Safari Club International Alaska Chapter. 

3. Letter from 3 Alaska residents to Sen. Lisa Murkowski Re: S. 881 (letter dated 

April 28, 2010). 

4. Letter from the Alaska Outdoor Council to Sen. Thune re: S. 340. 

5. Letter from multiple Alaska residents to Sen. Wyden Re: S. 340. 

6. Letter from Audubon Alaska to Sen. Wyden Re: S. 340. 

7. Letter from Territorial Sportsmen to Sen. Wyden Re: S. 340. 

Various Submissions FTR: 

1. Judy Magnuson, Port Protection Community Association. 

2. Tim Bristol, Trout Unlimited. 

3. Letter from Phil Rigdon, President of the Intertribal Timber Council. 

4. Matthew D. Kirchhoff, Wildlife Biologist. 

5. Resolution from the City of Kupreanof, Alaska submitted by Becky Regula, City 

Clerk. 

FTR ON H.R. 841 (SCHRADER), TO AMEND THE GRAND RONDE RESERVATION ACT TO MAKE

TECHNICAL CORRECTIONS, AND FOR OTHER PURPOSES

Submitted by witness, Mr. Reyn Leno, Tribal Council Chair, The Confederated 

Tribes of Grand Ronde FTR: 

1. Yamhill City Resolution. 

2. An Administrative History of the Coast Reservation. 

3. Polk County Resolution re Amendment to Grand Ronde Restoration and Reservation Acts 6–2–10. 

4. Letter to Ranking Member Colleen Hanabusa re: GR FTT bill, 031813. 

Various Submissions FTR: 

1. Letter from William Iyall, Chairman, Cowlitz Indian Tribe. 

2. Robert Garcia, Chairman of the Confederated Tribes of Coos, Lower Umpqua, 

and Siuslaw Indians w/multiple attachments. 

FTR ON H.R. 931 (SCHRADER), TO PROVIDE FOR THE ADDITION OF CERTAIN REAL

PROPERTY TO THE RESERVATION OF THE SILETZ TRIBE IN THE STATE OF OREGON

Submitted by Lone Rock Strategies on behalf of the Siletz Indians Tribe: 

1. Letter from the Confederated Tribes of Siletz Indians Tribal Council to Oregon 

delegation. 

2. List of historic references to the Siletz Reservation. Commissioner of Indian Affairs Reports. 

3. Chronological Summary of Historical Documentation regarding Siletz vs. Grand 

Ronde Agency Jurisdiction over Northern Portion of Siletz Coast Reservation. 

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and Location and Tribal Affiliation of Salmon River, Clatsop, Nestucca, Tillamook 

and Nehalem Indians 1857—1890. 

4. Craig Dorsay (Siletz Tribal attorney) memo #1: Addresses the argument that 

Siletz is limited to take land into trust in Lincoln County. 

5. Craig Dorsay (Siletz Tribal attorney) memo #2: Addresses the legal and historic 

distinction between Coos/Lower Umpqua/Siuslaw Indians that confederated at Siletz 

and those that were later recognized by Congress. 

Various Submissions FTR: 

1. Letter from William Iyall, Chairman, Cowlitz Indian Tribe. 

2. Robert Garcia, Chairman of the Confederated Tribes of Coos, Lower Umpqua, 

and Siuslaw Indians w/multiple attachments. 

FTR ON H.R. 1410 (FRANKS), ‘‘KEEP THE PROMISE ACT OF 2013’’

Submitted by Ranking Member Colleen W. sHanabusa FTR: 

1. Written Testimony of the Honorable Adolfo Ga ́mez on behalf of the City of 

Tolleson, AZ along with a resolution of the City Council. 

2. Tohono O’odham National Resolution 2129. 

3. Written Testimony of the Honorable Robert Barrett on behalf of the City of Peoria, AZ. 

4. City of Peoria, AZ Resolution 2013–41. 

5. Letter from the Mayor/City Council Office of Surprise, AZ. 

6. Map C of Impact of Proposed Amendment to the Tohono O’odham Nation’s 

Land and Water Rights Settlement Act. 

7. Written Testimony of the Honorable Samuel U. Chavira, City of Glendale, AZ 

Yucca District Councilman. 

8. City of Phoenix, Councilmember Nowakowski, District 7 letter. 

9. Tribal Council Resolution, Hopi Tribe, H035–2013. 

10. Tribal Council Resolution, San Carlos Apache Tribe, No. MY–13–116. 

11. Court cases affirming land-in-trust decision under Gila Bend Act. 

a. Gila River Indian Cmty. v. U.S., 776 F. Supp. 2d. 977 (D. Ariz. 2011). 

b. Gila River Indian Cmty. v. U.S., 697 F.3d 886 (9th Cir. 2012). 

12. Court cases affirming gaming eligibility of land under the tribal-State compact 

and IGRA. 

a. State of Arizona v. Tohono O’odham Nation, 2:11–cv–00296–DGC (D. Ariz. 

2013). 

Submitted by Rep. Paul A. Gosar of Arizona FTR: 

1. Arizona Republic Op-Ed: Tribal leaders: Bill would safeguard casinos deal. 

2. Press release from the City of Glendale, AZ. 

3. Letter to Rep. Sinema from the City of Tempe, AZ. 

4. Letter from the Town of Fountain Hills, AZ. 

5. Letter to Rep. Franks from the City of Litchfield Park. 

6. Letter to Rep. Franks from the Maricopa County Board of Supervisors. 

7. Letter to Rep. Franks from the Town of Gilbert. 

8. Letter to Chairman Young and Ranking Member Hanabusa from the Pueblo 

of Zuni, NM. 

Submitted by Witness, Ms. Diane Enos, President, Salt River Pima-Maricopa Indian 

Community FTR: 

1. Map—proposed location for casino and proximity to a school. 

2. A bound series of letters/resolutions/news articles/transcriptions, etc FTR titled 

Arizona Gaming Compacts Proposition 202 ‘‘No additional casinos in the Phoenix 

metropolitan area’’.

Various Submissions FTR: 

1. Statement of the Honorable Sherry Cordova, Chairwoman, Cocoah Indian 

Tribe. 

2. Letter from Reps. Markey and Grijalva to Chairmen Hastings and Young. 

3. Governor Arlen Quetawki, Sr., Pueblo of Zuni. 

4. Governor Mendoza, Gila River Indian Community.

Æ