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42–574 PDF 2008

S. HRG. 110–469 

S. 1080, H.R. 2120, S. 2494, H.R. 2963, AND 

S. 531 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

ON

S. 1080, THE CROW TRIBE LAND RESTORATION ACT 

H.R. 2120, TO DIRECT THE SECRETARY OF THE INTERIOR TO PROCLAIM AS RESERVATION FOR THE BENEFIT OF THE SAULT STE. 

MARIE TRIBE OF CHIPPEWA INDIANS A PARCEL OF LAND NOW HELD 

IN TRUST BY THE UNITED STATES FOR THAT INDIAN TRIBE 

S. 2494, THE SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION GRAND COULEE DAM EQUITABLE COMPENSATION SETTLEMENT 

ACT 

H.R. 2963, THE PECHANGA BAND OF Luisen ̃ o MISSION INDIANS LAND 

TRANSFER ACT OF 2007 

S. 531, A BILL TO REPEAL SECTION 10(f) OF PUBLIC LAW 93–531, 

COMMONLY KNOWN AS THE ‘‘BENNETT FREEZE’’ 

MAY 15, 2008 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

LISA MURKOWSKI, Alaska, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

JOHN MCCAIN, Arizona 

TOM COBURN, M.D., Oklahoma 

JOHN BARRASSO, Wyoming 

PETE V. DOMENICI, New Mexico 

GORDON H. SMITH, Oregon 

RICHARD BURR, North Carolina 

ALLISON C. BINNEY, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on May 15, 2008 ............................................................................... 1 

Statement of Senator Dorgan ................................................................................. 1 

WITNESSES

Gidner, Jerry, Director, Bureau of Indian Affairs, U.S. Department of the 

Interior .................................................................................................................. 2, 115 

Prepared statement .......................................................................................... 115 

Macarro, Hon. Mark, Tribal Chairman, Pechanga Band of Luisen ̈ o Mission 

Indians .................................................................................................................. 69 

Prepared statement .......................................................................................... 71 

Maxx, Raymond, Chairman, Navajo-Hopi Land Commission .............................. 103 

Prepared statement with attachment ............................................................. 104 

Nuvamsa, Hon. Benjamin H., Chairman, Hopi Tribe .......................................... 100 

Prepared statement .......................................................................................... 102 

Payment, Hon. Aaron, Chairperson, Sault Ste. Marie Tribe of Chippewa Indians ......................................................................................................................... 73

Prepared statement with attachments ........................................................... 75 

Sherwood, Hon. Richard, Chairman, Spokane Tribe of Indians .......................... 13 

Prepared statement with attachments ........................................................... 14 

Venne, Hon. Carl, Chairman, Crow Nation ........................................................... 3 

Prepared statement .......................................................................................... 4 

APPENDIX

Supplementary letters for the record ..................................................................... 125 

(1) 

S. 1080, H.R. 2120, S. 2494, H.R. 2963, AND S. 531 

Thursday, May 15, 2008 

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 9:30 a.m. in room 

562, Dirksen Senate Office Building, Hon. Byron L. Dorgan, Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

The Chairman. The Committee will come to order. 

Good morning, and welcome to the Indian Affairs Committee 

hearing on five bills dealing with various land issues on specific Indian tribes. These issues are not new; most of the bills were introduced in prior Congresses. So we wanted to do a hearing this 

morning so that we might proceed with the legislation. 

We want to learn the views of all the interested parties on this 

legislation. Today the Committee will hear views on five bills. First 

is S. 2494, the Spokane Tribe of Indians Grand Coulee Dam Equitable Compensation Settlement Act. This bill would provide compensation to the Spokane Tribe for the use of tribal lands to generate hydroelectric power by the Grand Coulee Dam. 

S. 1080, the Crow Tribe Land Restoration Act, this bill would 

provide the Crow Tribe with the tools to address the problem of 

land fractionation within the reservation. 

S. 2963 is a bill to transfer certain lands to the Pechanga Band 

of Mission Indians. 

S. 2120 is a bill that would direct the Secretary of the Interior 

to proclaim certain lands of the Sault Ste. Marie Tribe as part of 

the Tribe’s reservation. 

S. 531 is a bill to repeal the Bennett Freeze provision in the Navajo-Hopi Lands Settlement Act. 

Today we will hear the views of tribes affected by these bills as 

well as the views of the Department of Interior. I encourage any 

other interested parties who are not on the witness list to submit 

written comments to the Committee. The hearing record will remain open for 14 days from today’s date for those submissions. 

With that, I welcome the witnesses. I know the tribal leaders 

have traveled far to be with us today. We greatly appreciate your 

willingness to testify. We have a rather full agenda today, so I ask 

that you limit your oral testimony to five minutes. Your entire 

written statement will be made a part of the permanent record. 

2 

I would note that the Senate will begin a series of votes at 11 

o’clock, in an hour and a half, and I expect the Committee will be 

done with its business by about that time. 

Again, I want to welcome all of you here. The first panel includes 

Mr. Jerry Gidner, Director of the Bureau of Indian Affairs, United 

States Department of the Interior. Mr. Gidner, welcome. You may 

proceed. 

STATEMENT OF JERRY GIDNER, DIRECTOR, BUREAU OF 

INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR 

Mr. GIDNER. Good morning, Chairman Dorgan, Vice Chairman 

Murkowski, members of the Committee. Because some of the tribal 

leaders need to leave to catch a plane soon, I am going to testify 

first about the bills regarding Spokane and Crow, so that those 

chairmen can leave who need to. 

Regarding S. 2494, to provide equitable compensation to the Spokane regarding Grand Coulee Dam, the Department opposes this 

bill. We have worked with the Spokane Tribe over several years on 

this issue and believe that negotiations to correct several serious 

issues should continue. 

We have several concerns with the bill. The first is that the bill 

as written envisions the use of appropriated funds to pay the tribe 

and we have not budgeted for the use of those funds. It also requires the transfer of land to the Spokane Tribe, which was not 

something that occurred in a similar claim that was settled for the 

Colville Tribe. 

But maybe more importantly, we don’t believe the Spokane Tribe 

has brought forth a legal claim that would justify a settlement. So 

we do not believe the legislation is currently justified as a settlement of a claim that we believe does not exist at this time. 

If there is a transfer of land, we believe it should not happen 

until there is an agreement between the tribe and the Government 

regarding the continued management of the Grand Coulee Dam, 

Lake Roosevelt and the Columbia Basin project. We believe that 

those issues should be resolved before any transfer of land occurs. 

Turning to the Crow Bill, the Department supports the goals of 

this bill and supports the general idea of how it would be done, essentially loaned to the Tribe to purchase fractionated land and 

then repay the Government. We have concerns about the exact 

mechanism and timing set forth in the bill, so we cannot support 

it at this time. We would like to continue working with the Committee and the Tribe on resolving those mechanisms to satisfy the 

concerns. 

With that, I will just conclude my testimony on those two bills. 

The CHAIRMAN. Thank you, Mr. Gidner. We will call you back 

when the two witnesses who have to leave, leave, Mr. Venne and 

Mr. Sherwood, because of travel arrangement and airplane flights. 

I want to ask Mr. Venne, you have heard the testimony of Mr. 

Gidner, you might wish to respond to that. I will ask you to go 

first, but let me ask Senator Tester to provide a proper introduction. Mr. Venne, you are becoming a fixture here. I believe you 

have testified a number of times before this Committee. We welcome you today. Senator Tester, would you like to introduce Mr. 

Venne? 

3 

Senator TESTER. Yes, I would consider it a great honor. 

Chairman Venne is Chairman of the Crow Tribe in the southern 

part of the State of Montana, the largest land mass, reservation in 

Montana. He is an individual who has shown great leadership to 

the Crow People for a good number of years now. I met Carl when 

I was in the State Senate. I think he is a man of great vision and 

common sense. So when Carl talks to me about bills such as the 

Crow Land Restoration Act, with the kind of passion that he has 

for that, it makes me sit up and take notice. 

With that, Carl, it is very good to have you here. I know you are 

a very busy man and I really appreciate you taking time out of 

your schedule to come to Washington, D.C. Thank you. 

The CHAIRMAN. Chairman Venne, let me thank you for being a 

gracious host when I visited your reservation, as well. It was a 

pleasure to do so. You may proceed. 

STATEMENT OF HON. CARL VENNE, CHAIRMAN, CROW NATION 

Mr. VENNE. Good morning. My name is Carl Venne. I have 

served as the Chairman of the Crow Nation since 2002. 

On behalf of the Crow Nation, I want to thank Chairman Dorgan 

and the members of the Senate Committee on Indian Affairs for 

holding this hearing on S. 1080, the Crow Tribal Land Restoration 

Act. I would also like to thank Senator Max Baucus and Senator 

Jon Tester for their sponsorship of this important bill. 

S. 1080 directly addresses the serious problems of the loss of our 

homelands through fractionation, allotment and tax foreclosure. 

Furthermore, the Crow Nation land base remains at risk with the 

potential loss of as much as a half a million acres or more. The underlying cause of our land base problems is derived from the Federal policy of allotment, which deleted the Indian land base nationwide by about two-thirds from 1887 to 1934, from 138 million to 

48 million acres. Over a 70-year period, Crow territory was reduced 

by 92 percent to its current 2.2 million acres. 

How this all came about was the Crow Tribe is the only tribe 

who settled the Cobell case. We were in negotiations with the Department of Justice. I think the biggest problem that Interior is 

facing and it is costing them more is the fractionation problem in 

Indian Country. Ten percent of all fractionated lands in these 

United States is on the Crow Reservation. 

For the last three years I have been working with Jim Cason and 

Abe Haskill to come up with this bill. I can respond to Interior 

today by saying, this bill, we sat down and worked it out with Interior before. To object to it now, I don’t understand that. It is just 

alone to the Tribe in the first place. 

Let me give you an example of how poor my Tribe is. We have 

a 47 percent unemployment rate. We are the fourth poorest county 

in this Nation. And Interior, it is costing them more and more and 

more to take care of lands on reservation. So when I sat down with 

Interior, it was to solve this problem. Why is there a Cobell case 

today? It is because of this problem, because of poor management 

by Interior itself. I strongly believe that the Crow Tribe can manage our own lands for ourselves. I have done that. For the last four 

years, Interior has leased tribal lands, they have received about $4 

4 

million a year. I decided, no, I am going to do it. Today we get over 

$10 million a year because of the Tribe managing its own lands. 

From $1.65 an acre to $55 an acre, that is the difference. That 

is why I want to, I need your help to do something like this, to retain our lands. It is so important to preserve my Tribe, my people. 

This Nation preserves wild horses in the Pryor Mountains. I think 

as we are the First People of these United States, we need to protect our homeland, to secure the homeland for the future of our 

kids, our grandkids and them that are not born yet. That is how 

important it is to my Tribe. 

It is just asking for a loan to purchase these lands. To me it is 

fairly simple. But how important is it? You know, God doesn’t 

make any more land. I want to keep ours. I want to increase it. 

Today, $50 million to $60 million is derived from the farm land 

that we have. If I had $60 million to $50 million today and I owned 

these lands, I wouldn’t need to be coming to Washington, D.C. and 

asking for money. We as a tribe would become self-sufficient. That 

is our goal; to become self-sufficient, for us to manage it ourselves 

and not the Federal Government to manage our lands. Give me a 

chance to make my own mistakes. Give me a chance to reap the 

benefits of these lands. 

We as a tribe have given and given and given our lands. Now 

I want that to stop for my tribe. 

Thank you, Senator. 

[The prepared statement of Mr. Venne follows:] 

PREPARED STATEMENT OF HON. CARL VENNE, CHAIRMAN, CROW NATION

I. Introduction 

Good morning. My name is Carl Venne and I have served as the Chairman of the 

Crow Nation since the year 2002. On behalf of the Crow Nation (Apsaalooke), I 

want to thank Chairman Dorgan and the members of the Senate Committee on Indian Affairs for holding this Hearing on S. 1080, the Crow Tribe Land Restoration 

Act. I would also like to thank Senators Max Baucus and Jon Tester for their sponsorship of this important bill. 

S. 1080 directly addresses the serious problems of the loss of our homelands 

through fractionation, allotment and tax foreclosures. Furthermore, the Crow Nation land base remains at risk, with the potential loss of as much as a half a million 

or more acres in the near future. The underlying cause of our land base problems 

is derived from the federal policy of allotment, which depleted the Indian land base 

nationwide by about two thirds from 1887 to 1934 (from 138 to 48 million acres). 

Over a 70-year period, Crow territory was reduced by 92 percent to its current 2.2 

million acre area. 

Because of allotment and federal probate of Indian property (with many Indians 

dying without wills), the phenomenon of fractionated land ownership arose—where 

several (sometimes hundreds of) owners might have varying interests in a single 

parcel. Similarly, allotment, fractionation and the loss of the tribal land base collectively resulted in checkerboard ownership of reservation lands, giving rise to overlapping governmental authority in Indian country (federal, state, tribal and local). 

Consequently, tribes with heavily allotted lands are faced with a situation where 

they must spend valuable resources trying to protect their remaining lands. 

On the other hand, other individuals (non-Indian) owning lands within the reservation (and almost everywhere outside of Indian country) have a relatively easy 

time protecting and making use of the land they own. Selling land to outsiders for 

less than its value further reduces the land base and the options for tribal citizens, 

and federal attempts to remediate these problems have been unsuccessful. Importantly, then, S. 1080 provides a mechanism by which the Crow Nation can repurchase significant lands and interests in land and to benefit once again from the economic potential of these lands, as was the intention of their being originally set 

aside for the Crow Nation and its citizens. 

5 

II. Tribal Land Base, Marshall Trilogy and Problems 

Overview 

Nothing is more important to Indian people than their land. Having a protected 

land base, active and healthy citizens, and defined political boundaries is essential 

to a tribe’s sovereignty and existence as a government. When Chief Justice John 

Marshall and the U.S. Supreme Court decided the early cases and controversies 

that provided the foundation of federal Indian law, he reflected that even under a 

doctrine of conquest and incorporation, where possible, ‘‘humanity demands, and a 

wise policy requires, that the rights of the conquered to property should remain 

unimpaired; that the new subjects should be governed as equitably as the old, and 

that confidence in their security should gradually banish the painful sense of being 

separated from their ancient connexions, and united by force to strangers.’’ 

Even where Europeans saw Indians as mere occupants of their lands, they were 

to be protected in that occupancy. A close reading of the Marshall Trilogy, the 

foundational Indian law cases, reveals that the U.S. Supreme Court would have 

supported a more complete view of property rights of tribes when they settled peacefully and allied with the United States, as did the Crow Nation from its earliest 

contacts. Moreover, two important but less often cited U.S. Supreme Court decisions 

have recognized and declared that ‘‘Indian lands are as sacred as the fee simple of 

whites.’’ See Mitchel v. U.S., 34 U.S. 711 (1835) (holding that the United States was 

obligated to respect existing Seminole property rights when it gained possession of 

Florida). Similarly, in U.S. v. Shoshone Tribes of Wind River Reservation in Wyoming, 304 U.S. 111 (1938), the Court found that ‘‘the tribe’s right of occupancy was 

incapable of alienation or of being held otherwise than in common, that right is as 

sacred and as securely safeguarded as if fee simple title,’’ and that the beneficial use 

for such rights as minerals and timber was vested in the Tribe and not in the 

United States. 

Until 1970, the era of self-determination, federal Indian policy decimated the land 

base and the subsistence possibilities of Indian tribes and their citizens. During the 

reservation era (1830s to 1880s), from the idea of Indian Territory (Oklahoma today) 

to other strategies of containment, the United States made treaties with Indian nations that asked them to concede vast sections of their homelands in return for specific payments and obligations on the part of the United States. Importantly, those 

agreements almost universally contained a guarantee of the protected use and enjoyment of the remaining reservation lands. 

After the reservation era, federal Indian policy shifted to allotment—breaking up 

the tribal land base by allotting smaller subsections of tribal lands to individual Indians. The overarching policy was to break Indians from their culture, dismantle 

tribal governments, and assimilate Indians into mainstream American culture. The 

allotment policy was declared by Congress in the General Allotment Act (Dawes Allotment and Severalty Act) of 1887. However, hundreds of specific allotment acts 

were passed by Congress over the subsequent forty years that specifically applied 

to particular reservations. One of these specific pieces of legislation was the 1920 

Crow Allotment Act. 

Even when passed, the Dawes Act was controversial. The motivation behind the 

policy came from the confluence of western settler colonialism and white northern 

liberal progressivism, a powerful phenomenon described by President Theodore Roosevelt in his 1901 State of the Union Address as a ‘‘mighty pulverizing engine to 

break up the tribal mass’’. One of the most vocal opponents of the allotment policy 

was George W. Manypenny, the Commissioner of Indian Affairs who was responsible for early allotments as part of the many treaties he negotiated with Indian 

tribes. Arguing against allotment as a federal policy, he assessed his earlier work: 

‘‘Had I known then, as I know now, what would result from those treaties, I would 

be compelled to admit that I had committed a high crime.’’ 

By 1928, the Meriam Report declared the federal allotment policy to be one of the 

most disastrous federal policies of all time. During discussions leading up to the Indian Reorganization Act of 1934, one congressman explained the fractionating effects of allotment in this fashion: 

‘‘It is in the case of the inherited allotments, however, that the administrative 

costs become incredible. . .. On allotted reservations, numerous cases exist 

where the shares of each individual heir from lease money may be 1 cent a 

month. Or one heir may own minute fractional shares in 30 or 40 different allotments. The cost of leasing, bookkeeping, and distributing the proceeds in 

many cases far exceeds the total income. The Indians and the Indian Service 

personnel are thus trapped in a meaningless system of minute partition in 

which all thought of the possible use of land to satisfy human needs is lost in 

6 

a mathematical haze of bookkeeping.’’ 78 Cong.Rec. 11728 (1934), cited in Hodel 

v. Irving, 481 U.S. 704 (U.S.S.D. 1987). 

In 1934, Congress expressly repudiated the allotment policy with passage of the 

Indian Reorganization Act. Despite this action by Congress, the current U.S. Supreme Court repeatedly cites allotment as the source for Congressional intent to justify further erosion of tribal governance, and simultaneous enhancement of state 

and local authority, over the remaining reservation land base. 

Today, we have to live with the detrimental impacts of poor decisions of previous 

federal policymakers. First, decisions were made to remove the Indians from their 

homelands in the east and place them in confined areas in the northern and southern Midwest. Second, federal policymakers decided to confine Indian tribes to certain reservation lands and repeatedly sought land cessions to allow for non-Indian 

settlement. Third, Congress decided to break up the remaining land base with allotment. Finally, Congress terminated its relationship with over 100 Indian tribes and 

simply subjected their remaining assets to state and local control, with a less than 

fair market value payment. 

Fractionation 

Throughout Indian country, land fractionation has become a problem of unimaginable proportions—touching upon almost every area related to land within the reservation. One serious consequence of fractionation is that the federal government’s 

trust responsibility toward Indian people has been let to lapse. Lease payments on 

trust lands are paid into federal accounts (Individual Indian Money Accounts) of individual tribal citizens, under the administration of the United States. In Cobell, a 

primary issue is centered upon the loss and other mismanagement of these 

fractionated interests, funds, and accounts. In some cases, some tribal citizens have 

seen their interests disappear altogether while under the care of those who are supposed to protect them. 

Federal law defines highly fractionated land as land for which a single parcel has 

50 or more owners, with no single owner owning more than 10 percent of that land, 

or land that has 100 or more co-owners of undivided interests. 25 U.S.C. § 1201. For 

instance, imagine that you owned a piece of land with 50 or more other people, some 

of whom you did not know and others who were very closely related to you. Only 

when you place yourself within this position can you begin to picture how difficult 

every transaction is under such circumstances and you can feel a small sense of 

what fractionation has done. At any moment in time, it is likely that some of those 

fractionated interests would be in the process of being probated, further reducing 

any chance of economic viability. 

Another example also demonstrates serious practical problems with land in Indian country. A common issue in land ownership on Indian reservations is that 

someone owns a house that is on a home site on a larger piece of land (e.g., two 

acres of land within a hundred and sixty acres of land). Even if the home has been 

built in an agreed upon place, it is possible that the land belongs to dozens of other 

people. If the home’s ownership follows the land, as is often legally the case, then 

the question of who might inherit that home is an extremely complex one. A piece 

of land that might support eighty home sites may have none because financing is 

unavailable under such circumstances and the puzzle of ownership cannot be solved. 

Similarly, what if this parcel of land is completely surrounded by land owned by 

other individuals and some of those owners want to lease it to the neighboring land 

owners to farm? What if some of the owners want to allow an energy company to 

purchase a right-of-way for a pipeline or electric line across their property? Some 

of the shares involved are worth fractions of a penny, and yet those owners have 

rights in the lands. What if you needed the agreement of 30 other co-owners, and 

the approval of a federal agency as well, to conduct any business with regard to 

your land? This regime is not tribal or communal ownership but a chimera created 

by federal policy. 

In 1983, Congress passed the Indian Land Consolidation Act (ILCA) to address 

fractionation. Under the ILCA, tribes could work with the approval of the Secretary 

of the Interior to eliminate fractional interests and consolidate tribal landholdings. 

In two later cases, various provisions of the ILCA that would appropriate small interests without owner consent were struck down as unconstitutional and those provisions were later amended by Congress. In sum, the continuing onslaught on tribal 

lands represents the fundamental betrayal of federal responsibility toward the first 

Americans—Indian tribes and their citizens—and yet there has been little and ineffective response to the concerns of the large land based tribes that suffer the most 

from fractionation issues. 

7 

III. History of the Crow Indian Reservation 

Even though fractionation is a national problem, Indian nations have different 

histories and unique experiences. Many Eastern tribes were dispossessed or lost 

their lands well before the Reservation Era, while other tribes were terminated in 

the 1950s and 1960s and had (some continuing) to seek federal recognition and restoration of their lands. This is one reason the Indian Land Consolidation Act has 

not had much success—one size definitely does not fit all. Some Indian nations with 

a relatively large land base were not allotted; while others have had their whole reservations broken into allotments. For this reason, federal legislation must be tailored to individual tribes or small groups of tribes. 

Treaties and Allotment 

After the Ft. Laramie Treaty of May 7, 1868, wherein the Crow Nation reserved 

8 million acres out of 38 million acres designated as its lands in an earlier treaty 

in 1851, a number of acts provided for the allotment of Crow lands. Those arguing 

for the allotment and opening of the Crow Indian Reservation to outsiders in the 

nineteenth and twentieth centuries performed a grotesque kind of algebra. They determined the needs of individual tribal members and the best way to make the Reservation’s most valuable lands into so-called surplus lands, which were often sold 

to outsiders. 

In 1919, prior to the 1920 Allotment Act, there were already 2,453 allotments, 

consisting of 482,584 acres. In discussions leading up to the 1920 Crow Allotment 

Act, Crow representatives repeatedly stressed their desire to keep and protect their 

lands and to make their own decisions. Therefore, as part of the 1920 Act, Congress 

expressly promised to limit other outside interests from swallowing up Crow land. 

In Section 2 of the 1920 Act, the Crow obtained a provision that limited outsiders 

from buying large sections of Crow land. 

According to this provision, the Secretary of the Interior was not to approve a conveyance of land to a person, company or corporation who already owned at least 640 

acres of agricultural or 1,280 acres of grazing land within the Crow Reservation. 

Further, the Secretary of the Interior was not to approve a conveyance of land to 

a person, company or corporation that, with the conveyance, would own more than 

1,280 acres of agricultural or 1,920 acres of grazing land. A conveyance of Crow land 

exceeding these restrictions was considered void and the grantee was guilty of a 

misdemeanor, punishable by a $5,000 fine and/or 6 months in jail. 

Since passage of the 1920 Act, the Crow Nation’s federal trustees failed to enforce 

Section 2 of the statute and enforcement continues to be non-existent. Today, approximately one third of the acreage of the Reservation is owned in violation of the 

1920 Allotment Act. By 1935, there were 5,507 allotments, consisting of 2,054,055 

acres (218,136 acres were alienated by 1935). Eventually all but the sections of the 

Pryor and Bighorn Mountains on the Reservation were allotted, a total of over 2 

million acres by 1935 in a reservation that had been reduced by cession to approximately 2.2 million acres. Approximately 700,000 acres of the Crow Reservation, or 

almost one third of the land mass of the Reservation, are presently owned by nonIndians in violation of Section 2 of the 1920 Crow Allotment Act. 

The Crow Nation has sought, through a number of means, to have its rights enforced but justice has not been served. In the most important case on Crow allotment, the Crow Nation sought relief against companies that owned large sections 

of land (45,000 acres and 140,000 acres, respectively). In Crow Tribe of Indians v. 

Campbell Farming Corp., 31 F.3d 768 (9th Cir. 1994), the Ninth Circuit Court of 

Appeals held that the 1920 Crow Allotment Act did not afford the Tribe a cause of 

action; the Supreme Court denied certiorari in 1995. All of these lands still have 

titles clouded by their Section 2 status, and their situation has become more complicated over time. 

Needless to say, failed federal policies and statutes that eviscerated the land base 

of the Crow Indian Reservation in this matter are historic and ongoing violations 

of the treaty relationship between the Crow Nation and the United States. Moreover, on an individual and collective group basis, even as Indians were being criticized for not making the most of their agricultural lands, their opportunity to do 

so was being taken from them along with the lands themselves. Perhaps the nonIndian public believed that Crow Indians could not farm; reality, however, directly 

contradicted the public’s misperception. 

Livestock and Agriculture 

As J.D. Pearson found in her work on building reservation economies, already in 

1886, Agent Henry Williamson reported that livestock was providing most of the income for the Crow and that they owned more than 1,900 head of cattle. Early in 

the twentieth century, federal officials worked to break up successful community 

8 

gardens at Crow because they preferred individual farmers. In 1900, with substantial portions of the Big Horn irrigation ditch dug by Crow workers, Crow farmers 

milled almost half a million pounds of flour as well as wheat, oats, and hay to feed 

the reservation. As the irrigation system expanded, however, Crows found themselves out of work as, despite promises of tribal preference in employment on the 

irrigation projects, both the jobs and the resources that went with them were offered 

to others. 

As with other tribes early in the twentieth century, Crow citizens made successful 

efforts at agricultural pursuits. Reports of the Secretary of the Interior for the Fiscal 

Year Ending June 15, 1915, showed that 69.7 percent of the able men of Crow were 

farmers and ranchers, 379 men total. By 1916, the Crow Nation had the largest 

horse herd in the world and a cattle herd of over 30,000 head. The Crow Nation 

was already agriculturally self-sufficient (the professed federal goal of allotment) before Congress mandated the 1920 Crow Allotment Act. Thus, Crow allotment actually undermined Crow self-sufficiency within their own lands. 

Competency and Leasing Crow Lands 

Leasing is another area in which allotment and fractionation have added to problems Crow citizens must overcome to benefit from their own lands. Lands held in 

trust for individual Indians often earn money for their owners by being leased to 

others for grazing or agricultural use, a practice subject to extreme abuse through 

the years. In their efforts to assert some control over their own lands, Crow representatives fought to get statutes passed that affirmed the right of individual Indian landowners to approve their own lease rates. A 1926 amendment to the 1920 

Crow Allotment act allowed ‘‘competent’’ tribal citizens to make their leases for five 

year periods without agency approval. Several more amendments were passed because of lessee abuse—e.g., some lessees would provide small future payments to 

impoverished landowners to control land for increasingly extended periods of time, 

effectively gaining the land for themselves for almost nothing. 

In 1947, the Indian competency provisions extended from the original allottees to 

include their heirs. At this time, on the eve of the federal termination era, tribal 

representatives and congressional advocates had to fight once more to prevent the 

Crow Reservation from being taken out of trust altogether. The final language affirmed the right of individual competent Crow Indians to approve their own leases. 

Yet today, fractionation has perverted this intent because the common definition of 

a ‘‘competent’’ lease at Crow is one having fewer than five owners, and the leases 

for lands with more than five owners must still be approved by the BIA. The overall 

control of the leasing of Crow lands rests not with the Crow Nation, its citizens, 

or even the BIA, but rather with outside leasing companies that continue to dominate the business. 

Important Example of Current Problems with Leasing 

The Crow competent lease acts were intended to help Crows but instead the acts 

appear to have helped non-Indian residents of the Crow Reservation. One especially 

egregious example (the case is still ongoing) will illustrate fundamental problems 

with leasing individual Crow lands. Our Chief Legal Counsel, Donald Laverdure, is 

by definition a Crow competent landowner (only he and his sister, both enrolled 

Crow citizens, own a 320 acre allotment) and can therefore lease his land without 

BIA approval. Over 5 years ago, Mr. Laverdure sought to renegotiate his competent 

lease with a third party leasing agent (who represents a consortium of farm families 

and corporations against individual Crow Indians) from 1950s rates to modern lease 

rates. 

The leasing agent claimed that the lessee could not afford to increase rates and 

simply sought to renew the 50-year old rates. After repeated attempts to negotiate, 

Mr. Laverdure decided not renew his lease and instead applied to the local Hardin 

office of the U.S. Department of Agriculture to become eligible to receive drought 

assistance grants and crop rotation grants (he had decided to let the land lay idle 

because of overgrazing and lack of crop rotation and the potential grants would be 

the equivalent of one-half of past lease rentals from his former lessee). At a meeting, 

Mr. Laverdure was informed by a local USDA employee and her supervisor that his 

competent Crow Indian land had been leased by the BIA without his notice or consent. 

Upon investigation, Laverdure found that one of the USDA employees was possibly related, by marriage, to the office manager of the leasing company. In addition, 

Laverdure discovered that the acting BIA superintendent, Mrs. Davey Jean Stewart, 

had exercised unilateral authority and granted an office lease of his own Crow competent allotment to the existing lessee, without his notice or permission. Undoubtedly, this action violates federal law—the Crow competent leasing statutes and fedVerDate Aug 31 2005 13:54 Sep 15, 2008 Jkt 042574 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 S:\DOCS\42574.TXT JACK PsN: JACKF
9 

eral regulations. Even though Laverdure pursued administrative relief within the 

BIA for several years, he did not receive a reply, written or verbal, until 2 years 

after the office lease had been granted in violation of federal law. 

Laverdure received a written reply from Mrs. Stewart stating that she was exercising her BIA trust duties (on behalf of the entire trust land area, not just the specific allotment at issue) in renewing the 50-year old lease rates to the existing lessees. She said that her trust duties demanded that she consider all interests, farming and agricultural, and therefore could not follow Laverdure’s own wishes with respect to his own land. Mr. Laverdure and his sister are still pursuing administrative 

and legal remedies after 5 years, and still appear to have no relief in sight. 

Sadly, Laverdure’s situation is not unique or isolated. I have been informed by 

several other individual Crow Indians that they have faced similar problems. This 

is an independent reason why my administration strongly feels that this Bill, S. 

1080, would go a long way toward correcting these injustices (Crow Nation would 

take over administrative duties of Crow land in lieu of the BIA). As the Crow Nation purchases fractionated interests and Section 2 lands and regulates Crow leases, 

it will restore control and individual autonomy over lands belonging to the Tribe 

and its citizens. 

Fractionation and Probate 

In generations of restricted ownership, the land interests of individual Crows have 

further fractionated until the Crow Reservation is the third most fractionated reservation in the nation. Recent statistics show 91 tracts at Crow that have over two 

hundred owners, as well as an overall average of 42 owners per tract. This high degree of fractionation reduces the value of the lands outright, makes effective use by 

the owners impossible, especially frustrates the interests of minority owners, and results in prohibitive administrative costs and serious risks of injustice for any transaction. 

While Crow was approved for a model project under the Indian Land Consolidation Act, progress has been very slow, resulting in the purchase of only a few hundred interests out of hundreds of thousands. The pilot program demonstrated a willingness among nearly all individual owners to sell their fractionated interests, but 

did not make significant progress toward consolidating the interests under tribal 

ownership. 

Fractionation concerns have also dominated probate reforms under the American 

Indian Probate Reform Act. In the early stages of these reforms, Crow and other 

tribes have been faced with additional burdens: (i) communicating the constant 

changes in law, not including tribal probate codes because Interior had not approved 

a model code; and (ii) providing unfunded estate planning assistance to individual 

Crows. The latter burden has become especially important because the Bureau of 

Indian Affairs simply stopped providing estate planning assistance. In addition, the 

Department of Interior has been ineffective in trying to overcome huge deficiencies 

in probate backlogs because many files are missing or out of date and the interests 

at issue are often fractionated. 

Cumulative Impact on Crow Reservation Land Ownership 

Today, the Crow Reservation encompasses 2,266,271 acres of lands within its exterior boundaries. 534,000 acres are owned by the Tribe in trust. 1,038,000 acres 

are individually owned trust lands. 700,000 acres are owned in fee by non-Indians. 

As recognized by the U.S. Supreme Court in Montana v. U.S., 450 U.S. 544, 548 

(1981), the statistical land ownership resulting from the above described legal history was: 52 percent Crow allotments; 17 percent Crow Nation trust land; 28 percent non-Indian fee land; 2 percent State of Montana fee land; and 1 percent federal 

government land. 

According to more recent Bureau of Land Management Reports, the land statistics 

have shifted slightly: 45 percent Crow allotments; 20 percent Crow Nation trust 

land; and 35 percent non-Indian fee land. In sum, the pattern of surface ownership 

generally is ‘‘checkerboard’’ with interspersed Crow Nation trust and fee lands, 

Crow allotments and non-Indian fee lands. The statistics show limited success of the 

Crow Nation in reacquiring lost lands, but the reality is a much larger pattern of 

continued land loss. 

Jurisdiction and Modern Problems 

Allotment and the subsequent transfer of many parcels into fee lands, as well as 

the seizure of reservation lands for non-Indian homesteads, has created the infamous ‘‘checkerboard’’ pattern of criminal and civil jurisdiction. Outside of reservation boundaries, different parcels of land are owned by different owners; yet those 

owners do not escape the jurisdiction of the geographic sovereign. On reservations 

where the pattern of ownership is now almost randomly distributed between trust 

10 

and fee parcels, tribal jurisdiction has been constantly intruded upon in such a fashion as to make tribal governance over the reservation almost impossible. 

Tribes are frustrated in their ability to zone reservation lands, to assess taxes to 

fund government programs and services, to enforce their own laws, and even to provide public safety. The definition of ‘‘Indian Country’’ in 18 U.S.C. 1151 provides a 

clear definition that includes rights-of-way and allotments even after they have 

passed into fee, yet this statute is frequently ignored. 

This checkerboard problem has interfered with Crow’s ability to govern its own 

reservation in a myriad of ways. In perhaps the most problematic of all Indian law 

cases, Montana v. U.S., 450 U.S. 544 (1981), the Tribe’s attempts to regulate fishing 

on its own reservation were met with well-orchestrated efforts from outsiders to 

limit tribal sovereignty. Although the Supreme Court provided exceptions to its 

overall rule that Tribes do not have jurisdiction over non-Indians on fee lands, it 

is the general rule that is remembered and the exceptions have been interpreted so 

narrowly as to be almost impossible to meet. 

For example, in Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001), the Navajo 

Nation’s ability to assess a hotel occupancy tax on a non-Indian hotel and guests 

within its reservation boundaries was struck down under the general rule in Montana. Similarly, in Big Horn County Elec. Co-op., Inc. v. Adams, 219 F. 3d 944 (9th 

Cir. 2000), the Ninth Circuit Court of Appeals held that the Crow Tribe was not 

justified in imposing a 3 percent ad valorem tax on rights-of-way used by an electric 

utility for transmission and distribution (the majority of consumers are Crow Indians). Only in Indian country do rights-of-way escape the jurisdiction of the geographic sovereign. 

Similarly, in Montana v. Crow Tribe of Indians, 523 U.S. 696 (1998), a case in 

the courts for two decades that dealt with the consequences of double taxation, state 

and tribal, on the Crow Tribe’s own coal from its own reservation, the U.S. Supreme 

Court struck down most of the relief sought by the Tribe, which simply asked for 

its coal severance and gross proceed taxes (which the Department of Interior had 

erroneously barred from several years) that were improperly paid to the State of 

Montana. When the Crow Tribe tried to assess a resort tax on businesses within 

the Crow Reservation, that tax was struck down even in the bankruptcy proceeding 

of one of those businesses because it was operated by a nonmember on fee land. In 

re Haines, 245 B.R. 401 (D. Mont., 2000). 

Rather than start from a position that an Indian Nation’s control over its own 

Reservation is paramount and exceptions to tribal jurisdiction must be limited, the 

Supreme Court in recent years has gone out of its way to protect non-Indian fee 

ownership and then to extend the fee context by analogy to rights-of-way and other 

situations on the reservation. The Court has even begun to reverse the historic discussion and to use the evils of checkerboard jurisdiction as an argument against Indian ownership. This approach shows a clear and present threat to tribal survival 

and the need for immediate measures to protect tribal territory and jurisdiction 

through consolidation and land acquisition. 

IV. U.S. Senate Bill 1080, Crow Tribe Land Restoration Act 

S. 1080 was specifically crafted to address the aforementioned problems. In the 

work leading up to a previous version of the bill (S. 1501), we held public meetings 

to make sure that there was no serious opposition to the actual provisions of the 

bill, and that there were no outstanding budget scoring issues. The bill provides a 

loan (of up to $380,000,000) to the Tribe to purchase Reservation lands and interests in lands from willing sellers. Purchased lands will be kept in trust or transferred into trust and administered by the Tribe, so that the Tribe can benefit from 

the economic potential of these lands. The lands will be made inalienable, so that 

the Tribe’s land base will remain secure. 

Repayments will be made from the earnings of the lands themselves. Research done when the BIA average payment per acre for fractionated land was $4.28 an 

acre, subject to further loss from administrative costs, shows that as that land approaches consolidated ownership, it will approach a higher value. Section 2 lands 

rented at $20.00, almost more than four times as much. Estimates showed that the 

likely value of the fractionated land after purchase by the Tribe would be $7.16 an 

acre. At nearly one million acres of fractionated lands, there would be the potential 

for three million dollars a year just in additional revenue to the system from the 

increased value of the land. 

Senate Bill 1080 has a number of significant advantages. 

• It Reduces Fractionation 

The federal government is unable to manage these interests and, in many cases, 

has lost track of the funds they generate for holders of Individual Indian Money accounts (see cause of action and litigation by plaintiffs in Cobell in case against the 

11 

federal government). Administering fractionated land interests is not the most efficient or useful exercise of the federal government’s fiduciary duty to tribes and individual Indians. It appears that the Act can pay for itself by simply removing the 

costs of administering fractionated interests at the federal level. 

• It Restores the Crow Nation’s Land Base 

At least two purposes of setting aside reservation lands for Indians included the 

provision of a secure homeland and the possibility of economic self-sufficiency 

through agricultural pursuits. Tribal land provides a home for tribal citizens, a 

basis for tribal sovereignty, and a means of earning funds necessary for survival. 

Where reservation lands are lost to other owners, tribes have the worst possible situation—having to watch others benefit from the lands intended for Indians, while 

being unable to assert meaningful jurisdiction over lands within their own reservations. Restoration of the land base has a whole range of secondary effects that contribute to the health and welfare of the Crow Nation and its residents. 

• It Attempts to Solve 1920 Crow Allotment Act, Section 2 Problems 

The Crow Nation’s Section 2 cause of action was preserved from the Tribe’s settlement of its Norton trust claims. On agreeable terms, S. 1080 could provide a workable solution to the Tribe’s outstanding claim for the lands lost when the United 

States failed to enforce Section 2. The bill will save litigation costs, potential damages in this matter, and clear title to Crow lands. 

• It Effectuates the Crow Nation’s Right of First Refusal 

The United States government recognizes the need for tribes to be able to regain 

lost lands and to protect and preserve lands passing from individual citizens. Tribes 

possess the right of first refusal when individual tribal citizens wish to sell their 

trust lands, a trend that continues due to ongoing hardship and the inability of individual owners to overcome the historic obstacles placed in the way of their ownership. At present, the Crow Nation stands to lose hundreds of thousands of more 

acres from its reservation unless it is able to exercise its right of first refusal and 

keep these lands for the benefit of the Crow Nation and its citizens. Other potential 

purchasers often fight Crow jurisdiction within its own reservation and that leaves 

all parties with serious issues concerning overlapping tribal, federal, state and local 

government jurisdiction. 

• The Potential Land Purchases Will Pay for Themselves 

Particularly as costs continue to increase, there are some challenges to repayment. But through repurchase, irrigating more, keeping land in its current uses or 

even reclaiming land for agricultural purposes, the Tribe will be able to add to the 

earnings of program lands. We have done extensive research into the costs of servicing debt for land repurchase and the earning potential of the land, and are comfortable with the outlook of this program under tribal management. 

Funds earned in excess of what is needed to make loan payments can nonetheless 

be used to add to the land base and further pay down the loans. The bill also provides a necessary five million dollar yearly appropriation for administrative costs in 

implementing the project and undertaking tribal management of the acquired lands. 

• Additional Costs or Harms Are Insignificant 

Although some fee lands may be returned to trust status in a successful land acquisition program, the collection of state taxes from these lands is quite minimal 

and, overall, the Crow Nation provides more services to Bighorn County than revenue or services it receives from the County. The services and secondary economic 

benefits provided to the County from the Crow Nation’s successful use of S. 1080 

lands will provide a net benefit to the County. The Nation will not have to leverage 

other resources or use other tribal assets. 

• All Sales Are Voluntary 

Because the Crow Nation’s program will be the purchase of interests from willing 

sellers, the Nation is not forcing or demanding the return of ancient homelands. 

V. A Federal Legislative Solution for a Specific Problem 

Some legislation may work for all tribes, but Indian policy, geography, and different tribal cultures and histories have left tribes in different situations. S. 1080 

is designed largely to alleviate the particular consequences of land loss and 

fractionated ownership within the Crow Reservation. However, solving land problems at Crow will go a long way toward solving fractionation and related problems 

throughout the United States because one-tenth of the land administered by the Bureau of Indian Affairs, as trustee for individual Indians, is at Crow. 

When the Crow Nation is able to solve its land problems and repay the funds 

loaned under S. 1080, it will be able to use future funds earned on its lands for its 

12 

own future needs, thus saving federal dollars. By lowering federal monies spent in 

administering fractionated and other Crow lands, the overall federal responsibility 

will be reduced because the Crow Nation and its citizens will become self-sufficient. 

As such, BIA land assistance can be concentrated upon elsewhere in Indian country. 

The fact is that Indian tribes have had many different experiences with allotment 

and land alienation struck different tribes and regions differently. Crow has over 

two million acres of allotted land, second only to the Oglala Lakota at Pine Ridge. 

ILCA intended for tribes to develop individual programs and therefore this Bill, S. 

1080, is a specific legislative effort to accomplish what ILCA has not. Crow’s actual 

needs based on allotment—both the extent of allotment and fractionation and the 

amount of allotted land on the present Reservation, as well as the other issues addressed in this testimony—are some of the most severe in the nation. Crow is also 

unique in the quality of lands available for repurchase and will be able to continue 

agricultural uses and even reclaim lands to make repayment a realistic option. 

The Crow Nation, by itself, had almost twice as much land allotted as nineteen 

tribes in Washington combined and almost the same amount in alienation. In Oklahoma, over nineteen million acres of land were allotted and most of that total, over 

sixteen million acres, were completely alienated from the Tribes. Besides the moral 

wrongs with land loss, the GAA (Dawes Act) of 1887 occurred during a period of 

federalization and today’s effects in Indian country amply demonstrate the error in 

trying to create an Indian policy that treated tribes without respect for their different cultures and histories. 

Other Indian nations have their own unique stories, which constitute in part the 

government-to-government relationship, and have needs that must be met on their 

own. If you look at the recent history of Indian legislation, you will see that there 

are many bills that address the needs of individual tribes on recognition, water, and 

land claims, honoring their individual leaders, responding to specific historical 

wrongs. Thus, this Bill, S. 1080, may not fit the needs of the Indian Nations in 

Oklahoma or Washington, or the Ute Mountain Utes and Navajos with lands that 

were not allotted. No single legislative act could meet the diverse needs of these varied histories. 

However, the Crow Nation’s unique situation is shaped by its own people and culture, by the particularities of federal Indian policy and history, and by the failure 

of its trustees to enforce such laws as the Crow competent lease act and Section 2 

of the 1920 Crow Allotment Act. S. 1080 is designed to meet the very specific needs 

on the Crow Indian Reservation in the most efficient way possible. 

VI. Conclusion 

The Crow Tribe has always been an ally of the United States. At one point in 

the history the United States, the federal government awarded more land north of 

the Yellowstone River to its allies, the Crows, in appreciation for their support. Despite being a strategic ally (like some other Indian nations), the federal government 

changed its mind and simply took the land away. Further, even though the land 

of the Little Bighorn Battlefield was and continues to be within the Crow Indian 

Reservation, the Crow Nation continues to be treated as a bystander with private 

landowners buying up parcels to preserve and expand the Battlefield Memorial 

without any thought or permission provided by the Crow Nation. 

Other individuals that own former Crow Nation land, both on and off the Crow 

Reservation, continue to receive annual federal grants and subsidies—without which 

they would be unsuccessful at keeping the land. In contrast, Crow tribal requests 

to participate in federal programs are often met with opposition. Users of Battlefield 

Memorial site and the Bighorn Canyon Recreation Area often trespass and recklessly harm Crow tribal lands and the most sacred sites without respect, and federal 

agencies refuse to cooperate with our wishes to protect our homeland and our rights. 

It is time for a change. This Bill, S. 1080, is an important step in the right direction and it will provide a mechanism for the Crow Nation to right many wrongs. 

S. 1080 can be a model for other tribes but only if they believe that they can adapt 

its central purpose to fulfill their own particular needs. From our perspective, passage and implementation of S. 1080 will begin to heal old wounds and restore the 

honor that existed in our original, but broken, treaty relationship between our two 

nations, the Crow and the United States. 

We know that Justice Black was right when he said, ‘‘Great nations, like great 

men, should keep their word.’’ We have kept our word and we simply ask that you 

do the same. S. 1080 is a Bill that has minimal, if no, risk to the United States 

but is a Bill that can go a long way toward restoring the federal promise that exists 

between our great nations. Thank you for your attention and I would be happy to 

answer any questions. 

13 

The CHAIRMAN. Chairman Venne, thank you very much. We appreciate your testimony. 

Next we will hear from the Honorable Rick Sherwood, Chairman 

of the Spokane Tribe of Indians. Mr. Sherwood, thank you for being 

with us. 

STATEMENT OF HON. RICHARD SHERWOOD, CHAIRMAN, 

SPOKANE TRIBE OF INDIANS 

Mr. SHERWOOD. Thank you, Mr. Chairman and members of the 

Committee. My name is Richard Sherwood, I am Chairman of the 

Spokane Tribe of Indians. 

I very much appreciate the opportunity to appear before the Senate Committee on Indian Affairs to testify on S. 2494. I would also 

like to thank Senator Cantwell and Senator Murray for the introduction of this bill. 

Today I am here on behalf of the Spokane Tribe to ask for your 

help, as representatives of the United States of America. I ask that 

you act on behalf of the United States to finally treat the Spokane 

Tribe fairly and honorably for the injury to our tribe and reservation caused by the Grand Coulee project. 

My testimony today summarizes my written statement for the 

record and the critical need for this important legislation. We will 

also be providing photographs to show some of the devastating effects that Grand Coulee Dam operations have on our reservation. 

The Tribe has been struggling since an agreement with the 

United States in 1877 to secure the boundaries of the Spokane Reservation. Our reservation was formed by executive order in 1881, 

with 155,000 acres. Today we have 143,000 acres held by individuals and tribal trust property, 91 percent ownership of the reservation. That shows the importance that the reservation land has to 

the Spokane Tribe. In 1877, our ancestors and leaders of the past 

fought very, very hard for both the rivers, the Spokane River and 

the Columbia River, to be part of our boundaries. In the 1930s, due 

to the Grand Coulee project, those lands were taken away. I think 

for the ancestors that fought so hard for that, that is why we are 

here today. We are fighting the same fight that they fought in the 

1870s, to try to get back control of those lands. 

So when we hear that the Colville settlement didn’t have a land 

component to it, at the same time, the Spokane Tribe is looking at 

39 percent of what the Colvilles received. That was the initial thing 

we brought to the table. So through negotiations with everybody, 

everybody came back to the Tribe and said, you know, 39 percent, 

that is just too much money, we have to come up with a solution. 

So after careful consideration from today’s council and past councils, we decided we would come up with something creative. We decided that we would go after land that was rightfully ours to begin 

with. 

So what the Spokane Tribe has done is actually gone with 29 

percent of what the Colvilles settled for and added the original 

boundaries back, to try to get the original boundaries back to trust. 

Then we hear how the Spokane Tribe doesn’t have a legal claim. 

This may be true, but we have been promised and promised and 

promised since the 1930s that the Spokane Tribe would be taken 

care of, that we would make this right. 

14 

So in 1967, the Spokane Tribe settled its claims. In 1951, neither 

the Spokane Tribe nor the Colville Tribe filed claims on Coulee. 

The U.S. was negotiating with both tribes. 

The Colvilles went to the Indian Claims Commission to amend 

and add the Coulee claims in 1975. The Spokane Tribe had no 

claim to amend at that point, we settled in 1967. 

In the 1994 Colville hearing, the Department of Justice stated on 

the record that the Colville Tribe had no legal claim, only a moral 

claim. We are in the same situation, minus the fact that in 1975, 

w didn’t have a claim to amend. 

This has had a devastating impact on the Spokane Tribe from 

day one when they flooded our boundaries. It has taken the life 

away from the Spokane Tribe. We have always been a river people. 

To this day, we rely heavily on the river. It has taken away our 

salmon, it has taken away our culture, it has taken away our religion. Everything that the Spokane Tribe stood for was within that 

river, and we don’t have that today. We will never get that back. 

There is no amount of money in this world that will ever return 

what we have lost. 

I can’t stress the importance of what this can do. This will help 

with our unmet governmental needs, health care, fire protection, 

police protection. So it is not just about the dollars and cents, it is 

about trying to make, to right a wrong. I think it is an important 

thing to understand that we have been dealing with this for 80 

plus years now. And promise after promise, and here it is 2008 and 

I am fighting the same fight that my ancestors fought, that my 

great-grandpa sat here as a chairman and fought. So I ask you 

today, you have the opportunity to finally correct that wrong and 

make it right. 

With that, I thank you and appreciate the time you have given 

me. 

[The prepared statement of Mr. Sherwood follows:] 

PREPARED STATEMENT OF HON. RICHARD SHERWOOD, CHAIRMAN, SPOKANE TRIBE OF

INDIANS

Thank you Mr. Chairman and members of the Committee. My name is Richard 

Sherwood. I am Chairman of the Spokane Tribe of Indians. I very much appreciate 

the opportunity to appear before the Senate Committee on Indian Affairs to testify 

on S. 2494. Accompanying me are Gregory Abrahamson, Vice Chairman of the 

Tribe, and Howard Funke, our attorney. They are available for questions. 

Summary 

I am here today on behalf of the Spokane Tribe to ask for your help as representatives of the United States of America. I ask that you act on behalf of the United 

States to finally treat the Spokane Tribe fairly and honorably for the injury to our 

Tribe and Reservation caused by the Grand Coulee Project. My testimony today 

summarizes my written statement for the record and the critical need for this important legislation. We are also providing photographs for the record which illustrate some of the annual effects Grand Coulee Dam operations have on our Reservation. The Spokane Tribe has been struggling to protect our Reservation since an 

agreement with the United States in 1877. To understand this settlement it must 

be viewed in an historic context. As is fitting and proper for that struggle spanning 

one hundred and thirty (130) years, we have submitted a very lengthy and detailed 

statement herein. 

Grand Coulee’s waters flooded the lands of two adjoining Indian reservations that 

held great economic, cultural and spiritual significance. Ours is one of those reservations. The other is the Colville Tribes Reservation. 

Our life, culture, economy and religion centered around the rivers. We were river 

people. We were fishing people. We depended heavily on the rivers and the historic 

15 

salmon runs they brought to us. We were known by our neighboring tribes as the 

Salmon Eaters. The Spokane River—which was named after our people—was and 

is the center of our world. We called it the ‘‘Path of Life.’’ President Rutherford B. 

Hayes in 1881 recognized the importance and significance of the rivers by expressly 

including the entire adjacent riverbeds of the Spokane and Columbia Rivers within 

our Reservation. But the Spokane and Columbia Rivers are now beneath Grand 

Coulee’s waters. Today our best lands and fishing sites lie at the bottom of Lake 

Roosevelt. 

The proposed Legislation is designed to end a lengthy chapter in American history, in which the United States and American citizens reaped tremendous rewards 

at the expense of the Spokane Tribe and the Colville Confederated Tribes. The severe devastation wrought upon both tribes was unprecedented. And though the effected land areas held by the Spokane Tribe were roughly only 40 percent of that 

held by the Colville Tribes, a portion of the Colville’s salmon fishery continues to 

reach their Reservation, while the Spokane’s was lost entirely. Additionally, the 

Spokanes lost forever a prime site on the Spokane River that it could have developed for hydropower. Ultimately, both Tribes suffered severely. We are greatly impacted by the operation of Grand Coulee Dam each and every year. 

At the Grand Coulee Dam’s infancy, the United States acknowledged and supported its need to fairly and honorably address the related losses to be suffered by 

both the Spokane Tribe as well as the Colville Tribes. Yet the Colvilles, in 1994, 

secured a settlement with the United States, while the Spokane claims are still unresolved. The United States has all but ignored its trust obligation to the Spokane 

Tribe. The legislation represents a final settlement of the Spokane Tribe’s claims, 

and the following briefly describes the need for the United States to finally treat 

the Spokane people fairly and honorably in resolving this matter. 

Historical Context 

From time immemorial, the Spokane River has been at the heart of the Spokane 

territory. 

In 1877, an agreement was negotiated between the United States and the Spokane to reserve for the Tribe a portion of its aboriginal lands approximating the 

boundaries of the present Spokane Indian Reservation. 

On January 18, 1881, President Rutherford B. Hayes issued the relevant Executive Order, and with exacting language, expressly included the Spokane and Columbia Rivers within the Spokane Indian Reservation. 

Under section 10(e) of the Federal Power Act (16 U.S.C. 803(e)), when licenses are 

issued involving tribal land within an Indian reservation, a reasonable annual 

charge shall be fixed for the use of the land, subject to the approval of the Indian 

tribe having jurisdiction over the land. Had a state or a private entity developed 

the site, the Spokane Tribe would have been entitled to a reasonable annual charge 

for the use of its land. The Federal Government is not subject to licensing under 

the Federal Power Act. 

Numerous statements made by federal officials acknowledged the need for the 

Spokane Tribe to receive fair compensation. In one example, William Zimmerman, 

Assistant Commissioner of Indian Affairs, wrote: 

‘‘the matter of protecting these valuable Indian rights will receive active attention in connection with applications filed by the interested parties before the 

Federal Power Commission for the power development.’’ Letter from William 

Zimmerman to Harvey Meyer, Colville Agency Superintendent, dated September 5, 1933. 

A letter approved by Secretary Ickes, from Assistant Commissioner Zimmerman 

to Dr. Elwood Mead, Commissioner of Reclamation, stated in connection with the 

‘‘rights of the Spokane Indians,’’ that the Grand Coulee project, as proposed: 

‘‘shows the cost of installed horsepower to be reasonable and one that could bear 

a reasonable annual rental in addition thereto for the Indians’ land and water 

rights involved.’’ Letter from William Zimmerman to Elwood Mead, dated Dec. 

5, 1933. 

The United States Department of Justice has recognized these promises as an undertaking of a federal obligation, which promises were made to both the Colville and 

Spokane Tribes. 

‘‘The government began building the dam in the mid-1930’s. A letter dated December 3, 1933, to the Supervising Engineer regarding the Grand Coulee and 

the power interests of the Tribes, with the approval signature of Secretary of 

the Interior Ickes states: 

16 

This report should take into consideration the most valuable purpose to which 

the Indians’ interests could be placed, including the development of hydro-electric power. 

We cannot too strongly impress upon you the importance of this matter to the 

Indians and therefore to request that it be given careful and prompt attention 

so as to avoid any unnecessary delay. 

Also, a letter dated December 5, 1933, to the Commissioner of the Bureau of 

Reclamation and endorsed by Interior Secretary Ickes, stated that ‘it is necessary to secure additional data before we can advise you what would constitute 

a reasonable revenue to the Indians for the use of their lands within the [Grand 

Coulee] power and reservoir site areas.’ And a letter dated June 4, 1935 from 

the Commissioner of the Bureau of Reclamation requested that additional data 

be secured to determine ‘a reasonable revenue to the Indians for the use of their 

lands within the power and reservoir site areas.’ ’’ 

Statement of Peter R. Steenland, Appellate Section Chief, Environment and 

Natural Resources Div., Dept. of Justice (Joint Hearing on S.2259 before the 

Subcomm. on Water and Power of the Comm. on Energy and Natural Resources 

and the Comm. on Indian Affairs, S. Hrg. 103–943, Aug. 4, 1994, at 16). 

As stated in the testimony of the Assistant Secretary for Indian Affairs, concerning the 1994 Colville Settlement legislation, approved in P.L. 103–436: ‘‘Over 

the next several years the Federal Government moved ahead with the construction 

of the Grand Coulee Dam, but somehow the promise that the Tribe would share in 

the benefits produced by it was not fulfilled.’’ 

Pursuant to the Act of June 29, 1940 (16 U.S.C. 835d et seq.), the Secretary paid 

to the Spokane Tribe, $4,700. That is the total compensation paid by the United 

States to the Spokane Tribe for the use of our tribal lands for the past seventy-three 

years. 

When the waters behind the Grand Coulee Dam began to rise, the Spokane people 

were among the most isolated Indian tribes in the country. The Tribe’s complete reliance on the Spokane and Columbia River system had remained largely intact since 

contact with non-Indians. That, however, would be completely and irreversibly 

changed forever. The backwater of the dam, Lake Roosevelt, floods significant areas 

of the Tribe’s Reservation, including the Columbia and Spokane boundary rivers 

within the Reservation. A 1980 Task Force Report to Congress explains the historical context of the Tribe in relation to the Grand Coulee Dam. 

‘‘The project was first authorized by the Rivers and Harbors Act of 1935 (49 

Stat. 1028, 1039). In spite of the fact that the Act authorized the project for the 

purpose, among others, of ‘reclamation of public lands and Indian 

reservations . . ..,’ no hydroelectric or reclamation benefits flow to the Indians. 

Hardly any were employed at the project site. Indeed, the Tribes have presented 

evidence that even unskilled workers were recruited from non-Indian towns far 

away. The irrigation benefits of the project all flowed south. . .. 

Furthermore, the 1935 enactment made no provision for the compensation of 

the [Spokane and Colville] Tribes. It was not until the Act of June 29, 1940 (54 

Stat. 703)—seven years after construction had begun—that Congress authorized 

the taking of any Colville and Spokane lands... Section 2 [of that Act] required the Secretary to determine the amount to be paid to the Indians as just 

and equitable compensation. Pursuant to this authorization the Secretary condemned thousands of acres of Indian lands, primarily for purposes of inundation 

by the planned reservoir. 

Apart from the compensation for those lands, which the Tribes claim was inadequate, no further benefits or compensation were paid to the Indians. Nothing 

was provided for relocation of those Indians living on the condemned lands; and 

tribal lands on the bed of the original Columbia River were not condemned at 

all. Worst of all, Grand Coulee Dam destroyed the salmon fishery from which 

the Tribes had sustained themselves for centuries. The salmon run played a 

central role in the social, religious and cultural lives of the Tribes. The great 

majority of the population of the Tribes lived near the Columbia and its tributaries, and many were driven from their homes when the area was flooded. 

While Interior Department officials were aware that the fishery would be destroyed, the technology of the time did not permit construction of a fish ladder 

of sufficient height to allow the salmon to bypass towering Grand Coulee Dam. 

The project also resulted in the influx of thousands of non-Indian workers into 

the area. Prior to contemplation of the project very few non-Indians lived in the 

region. Indeed, anthropologist Verne F. Ray, who began his field studies in 

17 

1928, reports that there were no more than a handful of white families in the 

vicinity of the future site of the Grand Coulee Dam, and that in 1930 the 

Colville and Spokane were among the most isolated Indian groups in the United 

States. Their aboriginal culture and economy were largely intact up to that 

time, little reliance having been placed on white trading posts. The subsistence 

economy of the Indians had continued to focus on the salmon. 

Another principal aboriginal pursuit of the Colville and Spokane Indians involved the gathering of roots and berries on lands south of the rivers. That activity was largely curtailed after the construction of the project because of the 

influx of non-Indians on to those southern lands and because the river was widened to such an extent that crossing it became very difficult. Before the reservoir there were many places where the river could be forded. Similarly, hunting south of the river was also curtailed. Thus, the Grand Coulee project had 

a devastating effect on their economy and their culture.’’ Final Report, Colville/ 

Spokane Task Force, Directed by the Senate Committee on Appropriations in 

its 1976 Report on the Water and Power Public Works Appropriations Bill, 

S.Rep.94–505. (September, 1980). 

The salmon runs were entirely and forever lost to the upstream Spokane Tribe. 

Further more, there existed on the Spokane River—within the Spokane Reservation—two prime dam sites the Spokane Tribe could have used for generating hydro 

electric power. Like the Spokanes’ salmon runs, these sites were lost forever to 

Grand Coulee. 

In the 1940 Act, Congress also directed the Secretary of the Interior to ‘‘set aside 

approximately one-quarter of the entire reservoir area for the paramount use of the 

Indians of the Spokane and Colville Reservations for hunting, fishing, and boating 

purposes, which rights shall be subject only to such reasonable regulations as the 

Secretary may prescribe for the protection and conservation of fish and wildlife.’’ 16 

U.S.C. § 835(d). 

In an extraordinary move, the Tribe in December, 1941, sent a delegation crosscountry to meet on the issues with Commissioner John Collier. Unfortunately, the 

meeting took place on December 10—just three days following the bombing of Pearl 

Harbor. The Commissioner and his representatives committed to the Tribal delegation that they would do all they could in aid of the Tribe, but that the national priorities of war meant that redress would have to wait until its conclusion. 

In 1946, the Interior Secretary designated areas within Lake Roosevelt as ‘‘Indian 

Zones’’ to fulfill the requirements of the 1940 Act’s ‘‘paramount use’’ provisions in 

recognition of tribal lands inundated by Lake Roosevelt. The ‘‘Spokane Indian Zone’’ 

and the ‘‘Colville Indian Zone’’ were located generally within the reservations of 

those Tribes. The Spokane Zone also extended up the inundated Spokane River, 

within the Spokane Reservation, which today is known as the ‘‘Spokane Arm’’ of 

Lake Roosevelt. 

Indian Claims Commission Filings 

In 1946, Congress enacted the Indian Claims Commission Act. Act of August 13, 

1946 (60 Stat. 1049). Pursuant to that Act, there was a five-year statute of limitations to file claims before the Commission which expired August 13, 1951. It was 

under the Indian Claims Commission Act that the Colvilles were able to settle their 

claims in 1994. And it was due to a quirk of circumstances that the Spokanes were 

not. 

In 1951, both the Spokane Tribe and the Colville Tribes filed land claims with 

the Indian Claims Commission prior to the August 13, 1951 Statute of Limitations 

deadline. Neither tribe filed claims before the deadline seeking compensation for the 

use of their lands for the production of hydropower at Grand Coulee. Neither tribe 

understood, nor were advised that there would be a need to even file such claims. 

After all, beginning in the 1930s and then resuming through the 1970s, the historical and legal record is replete with high level agency correspondence, Solicitor’s 

Opinions, inter-agency proposals/memoranda, Congressional findings and directives 

and on-going negotiations with the affected Tribes to come to agreements upon the 

share of revenue generated by Grand Coulee which should go to the Tribes for the 

use of their respective lands. The Tribes had every reason to believe that its Trustee, the United States, was, although belatedly, going to act in good faith to provide 

fair and honorable compensation to the Tribes for the United States’ proportionate 

use of our Tribal resources for revenue generated by the Grand Coulee Dam. 

The ICC Act imposed a duty on the Bureau of Indian Affairs to apprize the various tribes of the provisions of the Act and the need to file claims before the Commission. While the BIA was well aware of the potential claims of the Spokane Tribe 

to a portion of the hydropower revenues generated by Grand Coulee, there is no eviVerDate Aug 31 2005 13:54 Sep 15, 2008 Jkt 042574 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 S:\DOCS\42574.TXT JACK PsN: JACKF
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dence that the BIA ever advised the Tribe of such claims. As the Tribe’s long-time 

attorney explained in 1981: 

‘‘The writer was employed in 1955 as the Tribe’s first General Counsel. The 

tribal leaders of 1951 were still in office. When asked why they had not filed 

claims for the building of Grand Coulee, the destruction of their fishery and loss 

of their lands, they were thunderstruck. They had no knowledge at all that they 

might have filed such claims. They told the writer that no one had alerted them 

to the possibility of such claims. They did not know that these potential claims 

might be governed by the Claims Commission Act. They assumed that their 

rights were still alive, and well they may be. The Superintendent had approached them in about 1949 with the Tri-partite agreement between the BIA, 

Bureau of Reclamation, and the National Parks Service for the establishment 

of and administration of the Indian Zones pursuant to the Act of 1940. While 

he got them to sign pre-written resolutions approving this agreement [so] vital 

to their river and lake rights, not a word was spoken of the possibility of the 

tribe filing claims. The deadline of August 13, 1951 was therefore allowed to 

pass without the claims having been filed.’’ Memorandum of January 12, 1981 

with Final Report, Colville/Spokane Task Force (September 1980). 

Thus, the Spokane Tribe in 1967 settled its ICCA claims, while the expectation 

of fair treatment for Grand Coulee’s impacts continued. Ironically, the Spokane 

Tribe’s willingness to resolve its differences with the United States would later be 

used as justification for the United States’ refusal to deal fairly and honorably with 

the Tribe. 

Meanwhile, the Colvilles, who had not settled their ICCA claim, continued that 

litigation against the United States. In 1975, the Indian Claims Commission ruled 

for the first time ever that it had jurisdiction over ongoing claims as long as they 

were part of a continuing wrong which began before the ICCA’s enactment and continued thereafter. Navajo Tribe v. United States, 36 Ind. Cl. Comm. 433, 434–35 

(1975). Over objections by the United States, the Colvilles sought, and in 1976 obtained, permission from the Commission to amend their complaint to include for the 

first time their Grand Coulee claims. With new life breathed into their claims, the 

Colvilles pursued litigation of their amended claims to the Federal Circuit Court of 

Appeals, which held that the ICCA’s ‘‘fair and honorable dealings’’ standard may 

serve to defeat the United States’ ‘‘navigational servitude’’ defense. Colville Confederated Tribes v. United States, 964 F.2d 1102 (Fed. Cir. 1992). In light of this ruling, 

the United States negotiated with the Colvilles to resolve that Tribe’s Grand Couleerelated claims. Unfortunately, however, because the Spokane Tribe in 1967 had 

acted in cooperation with the United States to settle its ICCA case, it lacked the 

legal leverage to force settlement. 

In 1967, the Spokane Tribe settled its ICCA claims case. That was the very same 

year that construction of the Grand Coulee Dam third power plant containing six 

new generating units began. The next thirteen years witnessed a flurry of activity 

by the United States to address the claims of the tribes to a share of the benefits 

of the Grand Coulee Project. 

Subsequent Negotiations—Both Tribes 

In 1972, the Secretary of the Interior’s Task Force began negotiation with the 

tribes through multiple policy, legal and technical committees to address the tribal 

claims. The ‘‘Secretaries Task Force’’ engaged the tribes on a full range of issues, 

including compensation, riverbed ownership and tribal jurisdiction over the inundated Indian Zones. 

In 1974 the Solicitor of the Department of the Interior issued an Opinion which 

concluded, among other things, that the Spokane and Colville Tribes each retained 

ownership of the lands underlying the Columbia River and, in the case of the Spokane Tribe, the lands underlying the Spokane River. The Solicitor found the United 

States intent to reserve those riverbeds in the Spokane Tribe clear. The Opinion 

suggested that the resource interests of the Tribes were being utilized in the production of hydroelectric power at Grand Coulee. 

In December 1975, the Congress directed the Secretaries of Interior and the Army 

to establish a Task Force and to open discussions with the tribes: 

‘‘to determine what, if any, interests the Tribe have in such production of power 

at Chief Joseph and Grand Coulee Dams, and to explore ways in which the 

Tribe might benefit form any interest so determined.’’ S. Rep, 94–505, Dec. 4, 

1975, at 79. 

19 

While these high-level negotiations were taking place, construction of the third 

power plant at Grand Coulee continued. The first generating unit of six came into 

service in 1974. 

In May of 1979, following two years of negotiations among federal agencies and 

the tribes, the Solicitor for Interior proposed to the Secretary of Interior a legislative 

settlement of the claims of the Colville Tribe and the Spokane Tribe, stating: 

‘‘I firmly believe that a settlement in this range is a realistic and fair way of 

resolving this controversy. The representatives of the Departments of Energy 

and Army who participated on the Federal Negotiating Task Force concur. It 

adequately reflects the relatively weak legal position of the tribes. (If the tribes 

could get around the Government’s defenses they conceivably could establish a 

case for from 15 percent to 25 percent of the power of the Grand Coulee and 

Chief Joseph dams.) In addition to the threat of legal liability to the federal government, there is the undeniable fact that the Colville and Spokane people have 

been treated shabbily throughout the 40-year history of this dispute. To this day 

they have received little benefit from these projects on their lands which totally 

destroyed their fishery (no fish ladders were included) and inalterably changed 

their way of life. It has been the non-Indian communities and irrigation districts who have benefited from these projects. Much reservation land remains 

desert, while across the river irrigated non-Indian lands bloom. 

I am also hopeful that this is one ‘‘pro-Indian’’ bill that the Washington State 

congressional delegation will support as a fair resolution of a sorry chapter of 

our history. The tribes have tried recently to cultivate support for such a settlement proposal among key members of the delegation. My understanding is that 

the delegation’s concerns have focused on the size of a settlement award (tribal 

demands have referred to hundreds of millions of dollars) and a tribal proposal 

for allocation of a firm power supply in the 1980’s an allocation which might 

be seen as a threat to domestic users in times of shortage.’’ Legislative Proposal 

on Settlement of the Claims of the Colville and Spokane Tribes, Memorandum 

of Leo M. Krulitz to Eliot Cutler, May 7, 1979. 

We do not know what happened to this Interior Solicitor proposal to settle the 

claims of both tribes. We do know that the sixth and final unit of the third power 

plant was completed in 1980. In that same year, the congressional Task Force completed its work. In spite of Congresses’ direction, rather than determine the tribal 

interests involved in Grand Coulee and the benefits they might derive from those 

interests, for the first time in nearly 50 years of promises and negotiations with 

both tribes, the Task Force asserted legal arguments which the United States might 

use to defend against or forestall any tribal claims for a share of the hydropower 

generated by or the revenues derived from the Grand Coulee Project The report concluded the United States may not be required by law to provide compensation at 

the same time that the Project’s ability to provide benefits to the United States and 

the region was taking a quantum leap. 

The third powerhouse alone provides enough electricity to meet the combined 

power of the cities of Portland, Oregon and Seattle, Washington. However, its contribution to the Federal Columbia River Power System and the inter-connected electric systems serving the western United States goes far beyond the amount of hydropower that is generated. 

With completion of the third powerhouse, the Grand Coulee Project was positioned to play a pivotal role in the creation of downstream hydro power benefits 

from releases from large Canadian storage reservoirs. Grand Coulee became the 

critical link between water storage facilities in the upper reaches of the Columbia 

River Basin and downstream generating assets. Rated at 6,809,000 kilowatts capacity, the power generating complex at Grand Coulee became the largest electric plant 

in the United States, third largest in the world. It now produces about 21 billion 

kilowatt hours annually, four times more electricity than Hoover Dam on the Colorado River, and is the least-cost power source in the region’s resource stack. 

In addition to power production, Grand Coulee is the key to maintaining operating flexibility and, most important, the reliability of the Federal Columbia River 

Power System and inter-connected systems. 

Without the third power plant in particular, and the Grand Coulee Project in general, the configuration and operation of the Federal Columbia River Power System 

would be very different. The electric systems serving the Pacific Northwest (and 

western United States) would be less efficient, have much higher average system 

costs and be far less reliable. 

In a sad twist of historical events, two tribes—each feeling the irreversible pain 

of Grand Coulee’s devastation—found themselves on separate paths. The Colville 

Tribes were able to continue their legal battles with the United States through setVerDate Aug 31 2005 13:54 Sep 15, 2008 Jkt 042574 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 S:\DOCS\42574.TXT JACK PsN: JACKF
20 

tlement in the mid-1990s, while the Spokane Tribe’s willingness to settle in the 

1960’s cost it substantial legal and political leverage in future dealings with the 

United States. 

Continuing Recognition of the Tribe’s Interests 

In 1990, the federal government and the Tribes entered into the Lake Roosevelt 

Cooperative Management Agreement, which states that ‘‘[t]he Spokane Tribe shall 

manage, plan and regulate all activities, development, and uses that take place 

within that portion of the Reservation Zone within the Spokane Reservation in accordance with applicable provisions of federal and tribal law, and subject to the statutory authorities of Reclamation . . . to carry out the purposes of the Columbia 

Basin Project.’’ 

Litigation over the ownership of the original Spokane Riverbed resulted in a separate federal court opinion (Washington Water Power v. F.E.R.C., 775 F.2d 305, 312 

n. 5 (D.C. Cir. 1985)), a court order (Spokane Tribe of Indians v. State of Washington, Washington Water Power Company and United States of America, No. C–82– 

753–AAM, Judgment and Decree Confirming Disclosure and Quieting Title to Property (U.D. Dist. Ct., E.D. Wash., September 14, 1990)). Separate settlement agreement (Spokane Tribe of Indians v. Washington Water Power Company, No. C–82– 

AAM, Judgment (U.S. Dist. Ct. E.D. Wash., March 3, 1995)) all of which provide 

and affirm that the Spokane Tribe holds full equitable title to the original Spokane 

Riverbed. 

In 1994 Congress passed the Confederated Tribes of the Colville Reservation 

Grand Coulee Dam Settlement Act (P.L. 103–436; 108 Stat. 4577, 103d Congress, 

November 2, 1994) to provide compensation to the Colville Tribes for the past and 

future use of reservation land in the generation of electric power at Grand Coulee 

Dam. 

A. For past use of the Colville Tribes’ land, a payment of $53,000,000. 

B. For continued use of the Colville Tribes’ land, annual payments of 

$15,250,000, adjusted annually based on revenues from the sale of electric 

power from the Grand Coulee Dam project and transmission of that power by 

the Bonneville Power Administration. 

In 1994 Congress also directed the Bonneville Power Administration, Department 

of Interior and the relevant federal agencies, under the ‘‘fair and honorable dealings’’ standard, to enter into negotiation with the Spokane Tribe to address the 

Tribe’s comparable and equitable claims for the construction and operation of Grand 

Coulee Dam. 

During the hearing on the Colville Settlement bill, the Spokane Tribe sought an 

amendment that would have waived the Indian Claims Commission Act’s statute of 

limitations to enable the Spokane to pursue its Grand Coulee claims through litigation. In the words of then Tribal Chairman Warren Seyler, ‘‘We believe it would be 

unprecedented for Congress to only provide relief to one tribe and not the other 

when both tribes were similarly impacted.’’ Hearing Record, Colville Tribes Grand 

Coulee Settlement, H.R. 4757, pp. 56–61 (August 2, 1994). 

Colville Tribal leaders and the bill’s Congressional sponsors asked the Spokane 

to withdraw the request for an amendment to waive the statute of limitations. The 

Spokane complied, with the understanding that good faith negotiations to reach a 

fair and honorable settlement with the United States would be imminent. As a result, the following statements were made in a colloquy accompanying the Colville 

Tribes’ Grand Coulee Settlement legislation. Colloquy to Accompany S. 2259, A Bill 

Providing for the Settlement of the Claims of the Confederated Tribes of the Colville 

Reservation Concerning Their Contribution to the Production of Hydropower by the 

Grand Coulee Dam, and for Other Purposes. 

Senator Bradley stated: 

‘‘S. 2259 settles the claims of the Confederated Tribes of the Colville Reservation, yet the claims of the Spokane Tribe which are nearly identical in their 

substance, remain unsettled. The historic fishing sites and the lands of the two 

tribes were inundated by the Grand Coulee Project. It is clear that hydropower 

production and water development associated with the Project were made possible by the contributions of both tribes. Thus, I believe it is incumbent that the 

United States address its obligations under the Federal Power Act to both 

Tribes.’’ 

Senator Murray stated: 

‘‘The settlement of the claims of the Colville Tribes is long overdue. The claim, 

first filed by the Colville Tribes over forty years ago, is based upon the authorVerDate Aug 31 2005 13:54 Sep 15, 2008 Jkt 042574 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 S:\DOCS\42574.TXT JACK PsN: JACKF
21 

ity the Congress vested in the Indian Claims Commission, which provided a 

five-year period during which Indian tribes could bring their claims against the 

United States. 

Unfortunately, the Spokane Tribe did not organize its government in time to 

participate in the claims process. 

The fair and honorable dealings standard established in the Indian Claims 

Commission Act should clearly apply to the United States’ conduct and relationship with both the Colville and Spokane Tribes. I would urge, in the strongest 

possible terms, that the Department of the Interior and other relevant federal 

agencies enter into negotiations with the Spokane Tribe that might lead to a fair 

and equitable settlement of the tribe’s claims.’’ 

Senator Inouye stated: 

‘‘I fully support the notion that the United States has a moral obligation to address the claims of the Spokane Tribe, and I would be pleased to join you in 

a letter to Interior Department Secretary Babbitt urging that negotiations be 

undertaken by the Department.’’ 

Senator Bradley added: 

‘‘Under the Federal Water Power Act, which is now referred to as the Federal 

Power Act, where an Indian Tribe’s land contributes to power production, the 

licensee must pay an annual fee to the Indian Tribe which represents the tribe’s 

contribution to power production. I too, would be pleased to join Senator Murray 

and Chairman Inouye in urging the Interior Department and the Bonneville 

Power Administration to enter into negotiations with the Spokane Tribe to address the tribe’s claims.’’ 

Senator McCain stated: 

I also want to join my colleagues in urging the Department of the Interior to 

seize this opportunity to address the Spokane Tribe’s comparable and equitable 

claims for damages arising out of the inundation of their lands for the construction and operation of Grand Coulee Dam.’’ 

Thus, as the Colville Tribes’ claims were being addressed, the United States Congress made clear its intent that the Spokane Tribe be treated fairly and honorably 

in connection with its claims for Grand Coulee damages through prompt, good faith 

negotiations with the Administration. 

The Spokane Tribe adhered to the spirit of good faith negotiations over the next 

several years. While the Administration in general continued its refusal to take 

Congress’ direction to negotiate fully a fair and honorable settlement with the Spokane Tribe, the Administration lead shifted from the Department of the Interior to 

the Bonneville Power Administration. 

For the next six years, from 1998 to 2004, the Tribe engaged in very difficult negotiations with BPA. Finally, in 2004, the provisions of a settlement bill were arrived at in which BPA had no objections. Those provisions are contained in S. 2494. 

Legislative History 

Spokane Tribal acreage taken by the United States for the construction of Grand 

Coulee Dam equaled approximately 39 percent of Colville acreage taken for construction of the dam. The Spokane settlement is based on 39 percent of the Colville 

settlement. At the request of members of Congress, the payment provisions for the 

Spokane settlement bill were reduced to 29 percent of Colville in exchange for return of the Tribe’s lands taken for the Grand Coulee Project. 

Spokane Tribe settlement legislation has been introduced in the 106th, 107th, 

108th, 109th and this the 110th Congress. In the 108th Congress, hearings on H.R. 

1797 were held before the House Resources Subcommittee on Water and Power on 

October 2, 2003. 

Hearings were also held on the Senate bill S. 1438, on October 2, 2003, before 

the Indian Affairs Committee. The bill was approved by the United States Senate 

on November 19, 2004. The House of Representatives adjourned late on November 

20, 2004 without time to consider the Senate-passed bill. 

A Spokane Settlement Bill was introduced in the 109th Congress. The House bill, 

H.R. 1797, was approved by the House of Representatives on July 25, 2005. In the 

second session of 109th Congress, in 2006, subsequent objections to S. 1438 by the 

State of Washington Department of Fish and Wildlife, as well as the Lincoln County 

Commissioners, stalled consideration of the settlement in the Senate. The Senate 

adjourned without vote on the settlement bill. 

22 

Amendments and Support 

The Spokane Tribe has agreed to modify the proposed legislation to address various concerns. In 2007, the Spokane Tribe met with the State of Washington Department of Fish and Wildlife and the Washington Office of the Governor to address 

their concerns with the settlement bill. The Tribe and State entered into an Agreement In Principle on May 1, 2007 to resolve those concerns. See Attachment A.1. 

Government-to-Government Agreement In Principle. 

The Governor of the State of Washington, Christine Gregoire, also voices strong 

support for this settlement legislation, stating that it is ‘‘clearly appropriate’’ and 

‘‘long overdue’’. See Attachment A.2. 

The Tribe and the Lincoln County Commissioners held meetings to address the 

concerns of the Commissioners with provisions of the bill affecting the Spokane 

River. The Tribe agreed to amend the bill to address these concerns. Section 9(a)(2) 

was removed, thereby excluding transfer to the Tribe of the south bank of the Spokane River, which is located outside Reservation boundaries. Section 9.(a) now confines the land to be restored to the Tribe to ‘‘land acquired by the United 

States... that is located within the exterior boundaries of the Spokane Indian 

Reservation.’’ On June 4, 2007, the Commissioners endorsed by letter, ‘‘strong support’’ for the settlement legislation as amended. See Attachment A.4. 

The Stevens County Commissioners in letters of December 18, 2007, request ‘‘renewed support’’ of the Tribe and for the settlement. ‘‘Please continue in your efforts 

to get legislation passed which finally settles this debt owed to the Spokane Tribe.’’ 

See Attachment A.5. The tribe also met with landowners concerned about this provision in the bill. The above amendment regarding Section 9(a)(2) resolved their stated concerns. 

The Eastern Washington Council of Governments, pursuant to letters of January 

23, 2008, by Chairman Ken Oliver provides, ‘‘We urge your strongest support and 

consideration for this issue.’’ See Attachment A.6. 

The Spokane Tribe has reached an agreement with the Colville Tribe dated June 

17, 2007 providing for a disclaimer provision in the bill regarding adjoining Reservation boundaries. See Section 9. 

Section 9(d)(1) was added to provide the United States, Bureau of Reclamation 

full protection for carrying out Columbia Basin Project purposes. Section 9(d)(3) was 

added to fully protect the authority and interests of the National Park Service in 

the National Recreation Area within the Reservation. Section 9(d)(4) was added to 

provide for an MOU between the Department of the Interior and the Tribe to provide for coordination on the land transfer. The Tribe is on record with the Committee agreeing that the MOU be completed prior to the transfer of lands back to 

the Tribe. 

The Spokane Tribe has made numerous and significant concessions over the 

course of negotiations on the provisions of the settlement bill. The Tribe has reached 

agreement with federal agencies, the State and county governments, the Colville 

Tribe, as well as private individuals, to resolve their concerns or objections to the 

bill. 

Administration Objections 

On June 28, 2005, John Keys, the Commissioner of the U.S. Bureau of Reclamation sent a letter to Congressman Richard Pombo, Chairman of the House Committee on Resources, raising Administration concerns and issues with H.R. 1797, 

Spokane Tribe of Indians of the Spokane Reservation Grand Coulee Dam Equitable 

Compensation Settlement Act. Subsequently, the Spokane settlement legislation 

was approved by the House on July 25, 2005, during the 109th Congress. The Commission’s letter raised three main concerns. These concerns and the Tribe’s perspective on them and the actions the tribe took to address them are discussed below. 

‘‘First, the Spokane Tribe has not brought forward a legal claim that would warrant this type of settlement and there is no legal claim pending.’’ 

This legislation is not a settlement of legal claims, it is ‘‘to provide for equitable 

compensation... for the use of tribal lands for the production of hydropower by 

the Grand Coulee Dam . . .’’ 

The Colville settlement was also not a settlement of legal claims. The Department 

of Justice took the express position before Congress that the Colville also had no 

legal claim; only a ‘‘moral claim’’. The settlement was based on the history and 

record of dealings with the Tribe. This history and record includes the repeated 

promises made by the U.S. to provide compensation to both tribes. 

23 

‘‘While plaintiff had no legal and equitable claim based on the navigational servitude, they did have a viable moral claim based on the ‘‘fair and honorable 

dealings’’ provision of the Indian Claims Commission Act of 1946. 

The resolution reached in the proposed settlement does not constitute an admission of liability. . .. But, we are prepared to recognize that the record, in this 

timely filed claim, can be read to reflect an undertaking by the United States 

with respect to power values. Because of that we think it is fair and just to 

fashion a complete resolution of this longstanding claim.’’ 

State of Peter R. Steenland, Appellate Section Chief, Environment and Natural 

Resources Div., Dept. of Justice (Joint Hearing on S. 2259 before the Subcomm. 

on Water and Power of the Comm. on Energy and Natural Resources and the 

Comm. on Indian Affairs, S. Hrg. 103–943, Aug. 4, 1994. at 17). 

Congress has enacted many equitable settlements and jurisdictional legislation on 

behalf of Indian tribes for the flooding of tribal lands for the use of hydropower and 

other purposes in the interest of justice and fairness. 

In the 1994 Colville settlement Hearings and Colloquy, senators McCain, Bradley, 

Inouye and Murray instructed the U.S. to negotiate a similar settlement with the 

Spokane Tribe–along the lines of the Colville settlement. The Senate Committee and 

the Colloquy expressly noted that both tribes suffered virtually identical harm and 

yet the settlement legislation compensated only the Colville Tribe. Specific quotes 

from that colloquy are contained in this statement under CONTINUING RECOGNITION OF THE TRIBE’S INTERESTS at pp. 9–12. 

The U.S. made express promises to compensate both tribes with a share of the 

power revenues for the use of tribal lands in 1933 and 1935. See HISTORICAL 

CONTEXT at pp. 2–3. 

The DOI Associate Solicitor Memorandum of 1976 states that the U.S. behavior 

toward both tribes amounted to an ‘‘act of confiscation’’, where the trustee converts 

the property of the beneficiary to his own use. 

‘‘The Department has not only failed to give the Tribes a share of the benefits 

of developing tribal property, but in the development has largely destroyed 

what other economic bases, fishing, farming and timbering, the Tribes may 

have had in their remaining property. The blatant lack of care taken by the Department to protect its own fiduciaries is confirmed by the letters and background activity described previously in the Statement of Fact. In the case of 

Grand Coulee, the Department knew precisely what destruction was being 

caused and what types of compensation of tribal property were appropriate. . .. 

Finally, given the knowledge the Department had of the Indian rights and 

needs at stake, it appears to have been derelict in not informing Congress of 

these, so that congress could take informed and specific action. . .. No case law 

grants executive agencies authority to unilaterally abrogate Indian rights. Certainly throughout the construction of these two projects, the posture of the Department can be described not as . . . an exercise of guardianship, but an act 

of confiscation.’’ 

Memorandum from Lawrence A. Aschenbrenner, Acting Associate Solicitor, Division of Indian Affairs, to Solicitor, p. 13 (1976) (emphasis added). 

In 1975, Congress authorized the Grand Coulee Task Force ‘‘to determine what, 

if any, interests the Tribes have in such production of power at Chief Joseph and 

Grand Coulee Dams, and to explore ways in which the Tribes might benefit from any 

interest so determined.’’ S. Rep. 94–505, Dec. 4, 1975, at 79. 

In the interim, in 1979, the Solicitor for Interior proposed to the Secretary of the 

Interior a Congressional settlement of the claims of the Colville and Spokane Tribes, 

stating, 

‘‘I firmly believe that a settlement in this range is a realistic and fair way of 

resolving this controversy. The representatives of the Departments of Energy 

and Army who participated on the Federal Negotiating Task Force concur. 

Legislative Proposal on Settlement of the Claims of the Colville and Spokane 

Tribes, Memorandum of Leo M. Krulitz to Eliot Cutler, May 7, 1979. 

In the 1980 Task Force Report, the U.S. instead, for the first time, asserted legal 

defenses against the Tribes’ claims and denied compensation. 

‘‘[I]n 1975, the Senate Committee on Appropriations directed the Secretaries of 

the Interior and Army to open discussions with the Tribes to assess a resolution 

of this dispute. S. Rep. 94–505, p. 79. Pursuant to that directive, a task force, 

consisting of the Departments of the Interior and Army, and the Bonneville 

Power Administration, issued a final report in September 1980. 

24 

The report was approved by the Secretary of the Interior. It concluded among 

other things that there was ‘‘no question but that the Tribes would be entitled 

to compensation had the projects been built and operated by the Federal Power 

Act licensees,’’ and that the Tribes would have received a reasonable benefit as 

fixed by that Commission pursuant to Section 10(e) of the Federal Power Act. 

The report further suggested that the legal defenses of the United States be exhausted with respect to navigational servitude before further action be taken 

regarding the Tribes’ power claims.’’ 

Statement of Peter R. Steenland, Appellate Section Chief, Environment and 

Natural Resources Div., Dept. of Justice (Joint Hearing on S.2259 before the 

Subcomm. on Water and Power of the Comm. on Energy and Natural Resources 

and the Comm. on Indian Affairs, S. Hrg. 103–943, Aug. 4, 1994, at 16). 

Following the 1994 Colville Settlement, the Spokane Tribe attempted to carry out 

the negotiation of a settlement with DOJ and DOI. The Tribe consistently, over several years, got nothing but bounced back and forth between the run-a-round from 

both agencies and no actual negotiations occurred. 

‘‘The hearing records show that Committee members in both the House and 

Senate were sensitive to the need to provide a settlement for the Spokane Tribe. 

The report of the House Natural Resource Committee directs the Departments 

of the Interior and Justice to negotiate with the Tribe to settle its claims. In 

the Senate, a colloquy between Senators Murray, Inouye, Bradley and McCain 

stressed that appropriate federal agencies should negotiate with the Spokane 

Tribe. 

Based on the foregoing, we are requesting that the Department proceed as soon 

a possible to negotiate with the tribe on its power value and fishing claims as 

previously directed by Congress.’’ 

Letter from Sen. Patty Murray, Sen. John McCain, Sen. Daniel Inouye, Sen. 

Bill Bradley, and Rep. George Nethercutt to Bruce Babbitt, Secretary of the Interior, dated July 9, 1996. 

‘‘The claims of the Spokane Tribe of Indians are virtually identical in substance 

to those of the Colville Tribes related to construction and operation of the Dam: 

loss of religious, fishing, burial, power and irrigation sites. While the region received significant benefits, the Tribe suffered devastating impacts on their culture, lifestyle and economy which have not yet been addressed. Because of the 

Administration opposition, the Congress did not settle the Spokane claims when 

the Colville Settlement Act was passed, nor did the Settlement Act waive the 

ICCA statute of limitations to open the door for the Spokane Tribe’s equitable 

claim. 

The Congress did, however, recognize this Nation’s need to resolve the Spokane 

Tribe’s claims regarding Grand Coulee Dam. In fact, the House Committee Report on the Colville bill directs the Departments of Interior and Justice to work 

with the Spokane Tribe to address the Spokane Tribe’s claims on their own merits. A colloquy among Senators Bradley, McCain, and ourselves in November 

1994 expressed the same direction to the agencies as the House Report. 

We are therefore frustrated that three years after enactment of the Colville 

Tribes’s Settlement Act, the Departments, while conducting numerous meetings 

with the Tribe, have still failed to enter into negotiations. 

We continue to believe it is grossly unjust for one Tribe to be compensated while 

a similarly affected neighboring Tribe is left with no remedy. Therefore, in the 

strongest possible terms, we urge the Departments to enter into negotiations with 

the Spokane Tribe immediately so that a fair and equitable settlement of the 

Tribe’s claims can be reached. A resolution of the Spokane claims, of course, 

must involve payment for past damages, as well as payment for future power 

revenues.’’ 

Letter from Sen. Patty Murray and Sen. Daniel Inouye to Bruce Babbitt, Secretary of the Interior and Janet Reno, Attorney General, dated March 2, 1998. 

The Spokane Tribe finally sought legislative help from Senator Murray and Congressman Nethercutt, and asked for a jurisdictional bill to allow the Tribe to file 

a legal claim and have it’s day in court with the U.S.. The DOJ strongly opposed 

this effort. 

That is why there is no legal claim. The Colville did not have one either. Both 

Tribes did not file Coulee claims in 1951. Both Tribes did not have legal claims. 

Both Tribes have equitable moral claims. Only one Tribe is being compensated. The 

U.S. misled both Tribes with promises and negotiations and then reversed position 

25 

by asserting legal defenses 40 years after the fact when the compensation stakes 

got too high. Words where much cheaper than fair compensation. Since the Spokane 

Tribe had settled their claims case with the U.S. in 1967, they had no claims case 

to amend to later add Grand Coulee claims. 

‘‘The Administration therefore believes it would be premature to assume that 

future budget proposals will recommend... appropriations at the levels proposed in the bill.’’ 

The impact on BPA ratepayers would be approximately 9 cents per megawatt 

hour ($0.09). That represents a 0.14 to 0.31 percent increase in BPA rates. This is 

about as close to a zero impact as one could calculate. BPA clearly should be able 

to reduce costs by one or two tenths of one percent to cover the cost of the annual 

payment proved for in Section 6 of the bill. 

The Senate Committee and the House Report instructed the U.S. to negotiate a 

settlement with the Spokane along the lines of the Colville settlement. 

The Spokane lost the equivalent of 39 percent of the lands the Colville lost to 

Grand Coulee. The Spokane bill provides the equivalent of 29 percent of the Colville 

settlement payments adjusted for inflation from the date of the Colville Settlement 

Act, in addition to the return and transfer of lands in Section 9. 

The Spokane also lost all salmon runs and two of their valuable hydropower sites 

on the Reservation. 

‘‘Second, the Department is concerned with transferring land and 

jurisdiction... absent a prior written agreement to fully address future management responsibilities.’’ 

Following release of the Administration/Keys letter on June 28, 2005, the Tribe 

met with U.S. DOI/BOR officials, including the Commissioner of BOR, on July 12, 

2005 and came to an agreement that the land transfer would not take place until 

the MOU between the U.S. and the Tribe called for in Section 9(c)(4) was completed. 

This agreement was communicated to the Committee via a July 21, 2005 e-mail 

message from Tribal Attorney, Howard Funke to Majority and Minority Counsel, 

Senate Committee on Indian Affairs (proposing Senate report language evidencing 

this agreement). 

‘‘Third, what specific duties are required of the Secretary... with respect to 

trust lands? ’’ 

The bill was amended to add current Section 9.(b)(2) FEDERAL TRUST RESPONSIBILITY. The Federal trust for all lands transferred under this section shall 

be the same as the responsibility for other tribal land held in Trust within 

the . . . Reservation. 

The Department of the Interior is well versed in its trust responsibility for Indian 

Reservation lands. These Spokane Reservation lands returned to the Tribe are no 

different. 

The Tribe understands that the Department of the Interior, despite these modifications to the legislation and the historical context for such a settlement, continues 

to have virtually the same three issues with the Spokane settlement legislation. The 

House, in the 109th Congress approved the Spokane settlement legislation, with 

knowledge of these issues. 

Conclusion 

The Tribe has exerted significant efforts to retain its homelands, to receive the 

benefit of the promises made by the United States to reserve our lands, and to fairly 

compensate us for the use of our lands for the production of hydropower. Our people 

have endured enormous past and present impacts to their resources, their way of 

life and their culture due to operation of the Project. Grand Coulee delivers enormous benefits to the United States and the region. The Colville Tribes, similarly situated directly across the Columbia River, share in the benefits of the Project. The 

Spokane deserve fair and honorable treatment by its trustee, and the region, in a 

settlement due them for the use of their lands for the production of hydropower and 

many other Project purposes. 

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63 

The CHAIRMAN. Mr. Sherwood, thank you very much. 

To my colleagues, I indicated at the start that Mr. Gidner would 

be discussing the first two bills, because the witnesses had problems with travel schedules and will have to leave to catch an airplane. Mr. Gidner will stay on the panel as we receive the other 

witnesses. 

I also indicated that we have votes beginning at 11 o’clock, so my 

hope will be that we will finish these bills, including the second 

panel of witnesses, by 11 o’clock. 


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64 

Let me call on Senator Tester for questions and then Senator 

Barrasso. 

Senator TESTER. Chairman Venne, you say you have 2.2 million 

acres in your reservation. How many acres of that is fractionated? 

Mr. VENNE. Probably about 80 percent of it. 

Senator TESTER. Eighty percent of it. If we get this bill through, 

how long would you anticipate, and I know this is a crystal ball 

question, but I have to ask it, how long would you anticipate it taking to get the land back in a form where it is developable? 

Mr. VENNE. We have discussed this with Interior and they gave 

me a time line for about five years to get this project done. 

Senator TESTER. And it is a project, if I understand, about $380 

million, 80 percent of 2.2 is about 1.6 million plus 1.7 million acres? 

Mr. VENNE. Yes. 

Senator TESTER. Okay. Mr. Chairman, do you want them all directed to the chairmen of the tribe and we will save Jerry Gidner 

for later? 

The CHAIRMAN. Let us save Mr. Gidner until the other witnesses 

have testified, if that is satisfactory. 

Senator TESTER. That would be good. That is all I had. I just 

want to clarify one thing that you said: 10 percent of the total 

fractionated land in Indian Country in the United States is on the 

Crow? 

Mr. VENNE. Yes, it is. 

Senator TESTER. Okay. The average, the way the allotments 

work and the way it has been split up over the last many, many 

decades, is it 40, 50 people average on each parcel? 

Mr. VENNE. Yes, at least 40 to 50 people. Some are over 200, 

some are even over 1,000 owners. 

Senator TESTER. Do you have records on the reservation or do 

they have records in the courthouse? How do you know who to contact? 

Mr. VENNE. We have all the records on each parcel of land and 

who owns it and how many people own it. 

Senator TESTER. The last question I have, the $380 million, the 

way I read it, is that it is used for the purpose of buying the land 

to consolidate. It looks to me like there are going to be some pretty 

heavy administrative costs here, especially if you have parcels of 

land with up to 1,000 people owning them. Have you figured that 

into the equation and do you have the ability to handle that onsite? 

Mr. VENNE. Yes. The present realty office, their budget is about 

$1 million a year. By the Crow Tribe doing it, Interior had agreed 

to give us $5 million a year to take care of this problem. I think 

that would be sufficient to do it. We were talking about, the bill, 

if it passes, I have to go back to Interior to negotiate how everything else is going to come into play. So this is not the final. What 

if we don’t come to an agreement with Interior? That is why I was 

a little hesitant to say, why isn’t Interior supporting this bill when 

it actually came out of Interior here in D.C. with the Crow Tribe 

to take care of the fractionated lands? If you look at Interior’s 

budget, there is doubt, and the statistics are out there, that it is 

going to keep costing, costing more and more every year to handle 

fractionated interests in Indian Country. 

65 

Senator TESTER. This will truly be my last question. You talked 

about your negotiations. The negotiations that you have had surrounding this bill, and you said it in your testimony, I just didn’t 

write it down, the negotiations you have had have been with Interior or with BIA or with both? 

Mr. VENNE. Both. 

Senator TESTER. Okay. 

The CHAIRMAN. Senator Barrasso. 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

First, Chairman Sherwood, I think I heard you say that you were 

sitting in the same seat that your great-grandfather sat in many 

years ago, fighting. I think he would be very proud of you today. 

Congratulations, you do an outstanding job. 

Mr. SHERWOOD. Thank you. 

Senator BARRASSO. First of all, Chairman Venne, a couple of 

things. I heard the huge number, the large number for unemployment in your community. I want to congratulate you on your efforts 

to develop your resources, to increase value, to increase productivity and use of the land, to become self- sufficient. As the neighbor to the south, everything you do to benefit your own I believe 

helps communities on both sides of the Wyoming-Montana border. 

I do have some questions on S. 1080, the Crow Tribe Land Restoration Act. As we are neighbors, this bill in essence has about 

three moving parts on our neighboring relationship on the river between Wyoming and Montana. There are the tribes’ 1868 water 

rights that predates the States of Wyoming, the States of Montana 

and even the Eastern Shoshone and Northern Arapaho Tribes in 

Wyoming. There is the Crow Compact, a complex agreement between the State of Montana and the Crow, which was designed in 

1999 to quantify the Tribe’s water rights. And we have this land 

bill, which would address the Crow Tribe’s difficulties with land 

issues. It would aid the Crow in purchasing lands that have water 

rights attached. 

All of us as neighbors need to understand how the purchase of 

these lands will affect the water rights on the Big Horn River. And 

I hear a lot about that from the folks in Big Horn County in Wyoming. So I am sensitive to protecting existing rights. I can understand the need to quantify and clearly assign water rights. I recognize that the Crow Tribe is trying to do the best that it can for all 

of its people. I think it is equally important to investigate how this 

legislation may impact on upstream rights and users in the State 

of Wyoming. 

I know that Mr. Gidner, in his short statement in the record, has 

some objections. I am looking forward to seeing what those objections may be. I have a couple of questions to try to clarify and see 

if I can get a better understanding. 

It seems that the land acquired by the Tribe with the aid of this 

loan comes with the water rights for that land. I am wondering, 

how will that affect the upstream users and the existing rights on 

the Big Horn River? 

Mr. VENNE. This bill does not affect any water rights. In fact, 

within a couple weeks, we will be presenting our water rights settlement. I know Wyoming and Montana are talking about the flow 

of the Big Horn River. But the Tribe was always left out of any disVerDate Aug 31 2005 13:54 Sep 15, 2008 Jkt 042574 PO 00000 Frm 00069 Fmt 6633 Sfmt 6601 S:\DOCS\42574.TXT JACK PsN: JACKF
66 

cussions on the river and how it flows and what is stored behind 

the dam. 

Our water bill will take care of that. It will also satisfy the people in Montana. 

Senator BARRASSO. I was wondering how the water rights which 

are attached to the land, if those water rights would be added to 

the Tribe’s base and would that affect the Crow Compact in some 

way? 

Mr. VENNE. No. 

Senator BARRASSO. When I look at the document that was ratified in Montana in 1999, there is a section that explains what happens if the tribes acquire more land. I will read it, because I am 

not exactly sure what it means. It says, ‘‘The water right appurtenant to the land acquired shall become part of, and not an addition to the tribal water right quantified in this compact.’’ Please 

help me out. 

Mr. VENNE. As I see it, any person that buys any land on the 

Crow Reservation, they would inherit that water right. But the allocations that they are doing under the bill will keep ours stable, 

so it won’t go up or go down. It really doesn’t affect anything that 

I can see. 

Senator BARRASSO. That was just the question, is how does this 

affect the upstream users, which is the folks in Wyoming? 

Mr. VENNE. Our water rights settlement, when it is presented, 

and we will give you a copy today of that and what we are trying 

to do in settling that. For you to read it and understand it, I think 

you will agree with me that nobody is going to be hurt by this legislation. 

Senator BARRASSO. Thank you. Thank you for your answers. 

The CHAIRMAN. Senator Cantwell. 

Senator CANTWELL. Thank you, Mr. Chairman. 

Chairman Sherwood, it is good to see you here in Washington, 

D.C. I thank you for your continued efforts in this area. I wanted 

to ask you a few questions about the difference in this legislation 

versus past legislation. 

It is my understanding that this legislation is different in the 

way it treats some of the boundaries, and that particularly this 

time we have county commissioners from Lincoln and Stevens 

County and the Eastern Washington Council and City of Spokane 

who are also enthusiastic about this legislation. Could you tell me 

what is different and how this has garnered their support? 

Mr. SHERWOOD. We faced opposition initially from Lincoln County. I think a lot of it was misunderstanding. One of the things we 

have done is we worked with the State of Washington, we worked 

with Lincoln County to actually come up with agreements on how 

we would enforce, and actually how we would protect the people of 

the river. 

Right now there is a lot of questioned areas as far as law enforcement goes, whose jurisdiction is where. So what we try to do is 

work with the counties to make sure it is a seamless lake, it is a 

recreation area used by people from all over the Country. It is an 

important part of our economic growth. We have worked hard to 

make sure that we work with the surrounding communities to proVerDate Aug 31 2005 13:54 Sep 15, 2008 Jkt 042574 PO 00000 Frm 00070 Fmt 6633 Sfmt 6601 S:\DOCS\42574.TXT JACK PsN: JACKF
67 

vide the best type of service we can to the people who utilize Lake 

Roosevelt. 

Senator CANTWELL. Does that include an agreement with the 

Washington Department of Fish and Wildlife? 

Mr. SHERWOOD. We have an agreement in principle if this legislation goes through with the Washington Department of Fish and 

Wildlife. 

Senator CANTWELL. Mr. Gidner, I am trying to understand your 

testimony as it relates to the legal claim issue. Congress obviously 

explicitly directed the Department of Interior to give just and equitable compensation to those who had been impacted. How are you 

saying that the Spokane Tribe, similar to the Colville Tribe, has 

not been impacted? 

Mr. GIDNER. I did not say, Senator, that they had not been impacted. 

Senator CANTWELL. I am asking you, how are you filling that 

mandate that was a directive of Congress to compensate those who 

were impacted? 

Mr. GIDNER. I guess I am not sure about the mandate. I know 

the Federal Power Act directed compensation or revenue sharing if 

a private developer had built a plant. This is the Federal Government, so that section did not apply. 

Senator CANTWELL. I think legislation enacted in 1940 directed 

the Secretary of Interior to determine if just and equitable compensation for tribal lands taken as a result of the Grand Coulee 

Dam projects. I think we are talking about a situation here where 

we have given just and equitable compensation to one impacted 

tribe and not to another. 

Mr. GIDNER. My understanding is, if that is the case, those 

claims were processed in the Indian Claims Commission and the 

statute of limitations expired and the Spokane Tribe did not amend 

their claim to include these. They settled their pre-existing claim. 

So at this point, there is not a legal claim to compensation for that. 

Senator CANTWELL. I think that is why we are here today and 

we have legislation, is that this has been an ongoing dispute where 

you have a very direct mandate from Congress to make sure that 

everybody is compensated and you are tying the Spokanes on a 

technical issue. I think the Colvilles actually amended a separate 

claim. I think they were in the same situation, isn’t that right, Mr. 

Sherwood? 

Mr. SHERWOOD. Yes. We settled our claim, it was in 1967. We 

settled our claim. The Colvilles actually didn’t settle their claim, so 

they amended their claim in 1975. We had no claim to amend. But 

the statute of limitations actually expired in 1951. So both tribes 

were in the same boat. We settled our claim, the Colvilles didn’t, 

so they were actually allowed to amend their claim later on. 

Senator CANTWELL. So for that technical ability, I still say that 

we have a directive here by Congress that is not being met, and 

that is to give just and equitable compensation. That is, in fact, I 

think the need for this legislation. 

I thank the Chair. 

The CHAIRMAN. Thank you. 

Vice Chair Murkowski, did you have any questions? 

68 

Senator MURKOWSKI. Thank you, Mr. Chairman. I don’t have any 

specific questions of the panel. I was intending to ask Mr. Sherwood for clarification in terms of what is different between the legislation as we have it now and what we have seen in the past. I 

appreciate the clarification and I appreciate your leadership on this 

issue and your efforts on behalf of the Spokane Tribe. 

Mr. Venne, I appreciate all that you do on behalf of your tribe 

as well, as you attempt to get these issues resolved. 

I am appreciative of you, Mr. Chairman, for holding the hearing 

so that we can resolve, or attempt to resolve through legislation, 

some of these issues that many of these tribes have been dealing 

with for a long time. 

The CHAIRMAN. Senator Murkowski, thank you very much. 

These are smaller pieces of legislation for the Committee, and yet 

very large issues for individual tribes, because they have been 

working, in many cases, for years. The issue of fractionation is a 

very significant issue, and the issue of just and fair compensation, 

I would say, is equally significant. We on the Committee want to 

have these hearings and begin trying to move some of these bills. 

It is not that we would disregard Mr. Gidner at all. The Interior 

Department, however, has testified previously on many of these 

issues. 

I just want to say that often the Department’s testimony is, well, 

we have not reached conclusions on negotiations. Then when you 

find out how long the negotiation has been going on, the answer 

is years. It is not lost on us, Mr. Sherwood, when Senator Barrasso 

observes that your great-grandfather came to the Congress and 

then your father and now you come to the Congress. It describes 

the difficulty of getting resolution, getting things done, getting solutions and answers. I think your tribes are asking for tools and 

opportunities to move ahead, solve problems, move ahead, give you 

opportunity as a result. 

We appreciate very much the two tribes that have testified on 

the first panel. My understanding is that you do have some transportation issues that you are to attend to, some airplanes to catch. 

So, we will release you. If you do have time to stay, you are welcome to do so. 

We will invite the other witnesses to come forward. We will hear 

from them and then we will question Mr. Gidner. We appreciate 

both of you very much for appearing before the Committee today. 

We will call the second panel forward. Mr. Gidner will remain. 

The second panel is the Honorable Mark Macarro. He is the Tribal Chairman of the Pechanga Band of Luisen ̃ o Mission Indians in 

California. The Honorable Aaron Payment, Chairman of the Sault 

Ste. Marie Tribe of Chippewa Indians in Michigan. The Honorable 

Benjamin Nuvamsa, Chairman of the Hopi Tribe in Arizona. And 

Mr. Raymond Maxx, Navajo Nation Council Delegate and Chairman of the Navajo Hopi Land Commission, Navajo Nation Council 

at Window Rock, Arizona. 

We appreciate very much all of you coming to the Congress and 

to the Indian Affairs Committee. You have heard that we would 

ask you to summarize your statements. Your entire statements 

that each of you provided us will be made a part of the permanent 

record of this Committee. 

69 

Let me ask Mr. Mark Macarro, Tribal Chairman of the Pechanga 

Band of Luisen ̃ o Mission Indians in California, to proceed. 

STATEMENT OF HON. MARK MACARRO, TRIBAL CHAIRMAN, 

PECHANGA BAND OF LUISEN ̃ O MISSION INDIANS 

Mr. MACARRO. Chairman Dorgan, Vice Chair Murkowski, Senator Barrasso, Senator Tester and Senator Cantwell, my name is 

Mark Macarro, I am the Tribal Chairman for the Pechanga Band 

of Luisen ̃ o Mission Indians in Temecula, California. We are in 

Southern California about 60 miles north of San Diego County. 

Our aboriginal land territory used to encompass from where 

Temecula is today an area 30 miles to the north, 30 miles to the 

south and about 45 miles east to west, out to the ocean to the west 

and into the mountains to the east. Today we have 5,500 acres. 

The Pechanga Band of Luisen ̃ o Mission Indians is respectfully 

asking your support of H.R. 2963, the Pechanga Mission Indian 

Lands Transfer Act of 2007. If passed into law, this bill would protect approximately 1,178 acres of land in Riverside County adjacent 

to our existing reservation by transferring it into trust for the benefit of the Tribe. 

It is because of our history and cultural affiliation with these 

lands that the passage of H.R. 2963 is so important to the Tribe. 

Our identity and existence as Luisen ̃ o people is dependent upon 

the connection, maintaining the connection and protection of these 

ancestral lands. Today, our tribal government operations, such as 

our environmental monitoring and our natural resources management programs exist to fully honor and to protect the land and our 

culture that exist on it. 

In particular, we are concerned about also watershed and wellhead protection and groundwater resources, and the availability of 

water for our community. The land that would be placed under 

trust in H.R. 2963 is part of the recharge area for some of these 

resources, and would help protect the quality and ensure an adequate supply of water for the Tribe and surrounding communities. 

These lands are also unique and important in terms of the cultural resources that they encompass. They include pictographs and 

petroglyphs that are unique not only to Luisen ̃ o Country but I 

think to all Indian Country. While these lands have a unique historical and cultural value for the Pechanga people, they are also 

important for the broader aesthetic, the visual aesthetic value to 

the communities throughout the Temecula Valley. 

The Tribe is very proud of our protection of cultural resources on 

our tribal properties and throughout our ancestral lands, which we 

no longer own. The Tribe is proud that we have preserved and protected these cultural places on lands in a culturally appropriate 

manner. More appropriately, we are proud that we have given 

these resources a level of protection that they would not have received had they been subjected to outside standards. I think even 

under the best of circumstances, many of these standards simply 

mitigate destruction rather than protect. 

So the Tribe is ever vigilant to protect our cultural resources, 

since we now own only a tiny fraction of the lands that once belonged to us, and because most of these resources have already 

70 

been lost to development off the reservation in non-tribal jurisdictions. 

As stewards of our traditional tribal lands, the Tribe will continue to ensure responsible management of the lands upon transfer. For example, although the lands in question will not be subject 

to the Riverside County multi-species habitat conservation plan, 

the MSHCP, once they have been transferred to the Tribe, the 

Tribe has agreed in its MOU with the Fish and Wildlife Service to 

manage the land in a manner consistent with the goals of the locally-derived MSHCP. Protecting the sanctity of these lands 

through our conservation and resource management is the highest 

priority for the Tribe. Our mandate is to protect and enhance the 

sustainability and well-being of the Pechanga way of life. Accordingly, the tribal government issued an executive order, which has 

zoned the land to be transferred under H.R. 2963 for conservation 

and management of wildlife and cultural values. Such zoning 

would make any commercial or other significant development of the 

lands contrary to tribal law. 

Recognizing the importance of these lands to the Pechanga people, the Tribe began in 1990 working the administrative process 

with the BLM. It was a local scoping hearing that BLM conducted, 

beginning in 1990, for this parcel which it had targeted at that 

time for disposal. The parcels come on and off that disposal list. 

But administratively, we have been working for about 18 years 

through that process. 

During the 108th Congress, well, actually in 2004 it was Congressman Darrell Issa who was approached by the BLM out of interest to see if he could carry a bill that would transfer the land 

to us. They knew at the time that we were interested in obtaining 

and managing that land. They were looking to help release some 

of the management burden. There were dozens upon dozens of disparate parcels of land in Southern California that has its management challenge for the BLM. So it appeared to be a win-win for everybody. 

During the 108th Congress, H.R. 4908, a bill which was substantially similar to H.R. 2963, was introduced to the House, and H.R. 

4908 was not passed by the House due to concerns expressed by 

San Diego County late in the process. During the 109th Congress, 

the Pechanga Band made extensive efforts to work with all affected 

parties to iron out any concerns or miscommunications regarding 

the provisions of H.R. 3507, which also passed out of the House of 

Representatives. 

We resolved all concerns expressed by parties of which we were 

aware, which included concerns raised by the counties of Riverside 

and San Diego. Also during the 109th Congress, it was discovered 

that a power line runs across the southwest corner of the BLM parcel. The BLM and the owner of the power line, Semper Energy, 

have agreed to language that addresses the identification and disposition of 12.82 acres that encompasses the power line. 

In the 110th Congress, the BLM remains supportive of this trust 

transfer, which is now embodied in H.R. 2963. 

In closing, I would like to thank you for the opportunity to address you. On behalf of the Pechanga Band of Luisen ̃ o Indians, I 

71 

respectfully request that you support H.R. 2963. Thank you for 

your time. 

[The prepared statement of Mr. Macarro follows:] 

PREPARED STATEMENT OF HON. MARK MACARRO, TRIBAL CHAIRMAN, PECHANGA

BAND OF LUISEN ̃ O MISSION INDIANS

Good morning Chairman Dorgan and Vice-Chairperson Murkowski. Thank you for 

the opportunity to provide testimony on behalf of the Pechanga Band of Luisen ̃ o Mission Indians. 

The Pechanga Band of Luisen ̃ o Indians respectfully requests your support of H.R. 

2963, the Pechanga Band of Luisen ̃ o Mission Indians Land Transfer Act of 2007. 

If passed into law, this bill would protect approximately 1178 acres of land in Riverside County, California, adjacent to our existing reservation, and important to the 

Luisen ̃ o people, by transferring it into trust for the benefit of the Tribe. 

The Tribe has called the Temecula Valley home for more than 10,000 years and 

10,000 years from now, tribal elders will share with tribal youth, as they do today, 

the story of the Tribe’s creation in this place. Since time immemorial, through periods of plenty, scarcity and adversity, the Pechanga people have governed ourselves 

and cared for our lands. This land is witness to our story. 

The history of the Tribe begins with our ancestral home village of Temeeku, which 

was a center for all the Payomkawichum, or Luisen ̃ o people. After the establishment 

of the state of California in 1850, a group of Temecula Valley Ranchers petitioned 

the District Court in San Francisco for a Decree of Ejection of Indians living on the 

land in Temecula Valley, which the court granted in 1873. 

In 1875 the sheriff of San Diego County began three days of evictions. The 

Luisen ̃ o people were taken into the hills south of the Temecula River. Being strong 

of spirit, most of our dispossessed ancestors moved upstream to a small, secluded 

valley, where they built new homes and re-established their lives. 

A spring located two miles upstream in a canyon provided them with water. We 

have always called this spring Pechaa’a, which comes from pechaq, which means to 

drip. This spring is the namesake for Pechaa’anga or Pechaanga, which means ‘‘at 

Pechaa’a’’ or ‘‘at the place where water drips.’’ 

On June 27, 1882, seven years after being evicted, the President of the United 

States issued an Executive Order establishing the Pechanga Indian Reservation. 

Several subsequent trust acquisitions were made in 1893, 1907, 1931, 1971 and 

1988, each one increasing the size of the reservation. 

At present, the total land area of the Pechanga reservation is approximately 5,500 

acres. As a people of this ancestral land that spreads from the center of Temecula 

out 60 miles north and south and approximately 45 miles east to west, we have always been respectful of and responsible for the environmental, social and economic 

relationships that exist upon it. 

It is because of our history and cultural affiliation with these lands that the passage of H.R. 2963 is so important to the Tribe. Our identity and existence as 

Luisen ̃ o people is dependent upon our connection to and protection of these ancestral lands. 

Today, our tribal government operations, such as our environmental monitoring 

and natural resource management programs, exist to fully honor and protect the 

land and our culture upon it. In particular, we are concerned about watershed and 

wellhead protection for our surface and ground water resources and the availability 

of water for our community. The land that would be placed into trust under H.R. 

2963 is part of the recharge area for some of these resources and would help protect 

the quality and ensure an adequate supply of water for the Tribe and surrounding 

communities. 

These lands are also home to important cultural resources, including pictographs 

and petroglyphs unique, not only to Luisen ̃ o territory, but to all of Indian country 

and our Nation. While these lands have a unique historical and cultural value for 

the Pechanga people, they are also important for their broader aesthetic value to 

communities throughout the Temecula Valley. The Tribe is very proud of our protection of cultural resources on our tribal properties and throughout our ancestral 

lands. Our Cultural Committee has a well-deserved reputation for thoroughness and 

strictness in its demands for protection of cultural resources. The Tribe is also very 

proud that we have preserved and protected all of our cultural places on tribal lands 

in a culturally appropriate manner. More importantly, we are proud that we have 

given these resources a level of protection they would not receive if they were located outside of the reservation boundaries, even in the best of circumstances. The 

Tribe is ever vigilant to protect our cultural resources since we now own only a tiny 

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fraction of the lands that once belonged to us and because most of these resources 

have already been lost to development in non-tribal jurisdictions. 

As stewards of our traditional lands, the Tribe will continue to ensure responsible 

management of the lands to be transferred. For example, although the lands in 

question will not be subject to the Riverside County Multi Species Habitat Conservation Plan (MSHCP) once they have been transferred to the Tribe, the Tribe has 

agreed in its MOU with Fish & Wildlife to manage the land in a manner consistent 

with the goals of the MSHCP. In fact, when questions came up about the Tribe’s 

development of a golf course on a portion of similar tribal lands, the Tribe commissioned a MSHCP consistency analysis by a County approved MSHCP consultant 

which concluded that the Tribe’s treatment of the property in question is consistent 

with meeting and/or exceeding the MSHCP goals for development within that geographical area. 

Although we have always believed in the sanctity of our lands, and have planned 

carefully for the use and preservation of our land, one environmental group has recently questioned our adherence to the National Environmental Policy Act and our 

development efforts on the reservation. 

After conversations with the representative of this group, we found their objections to be unwarranted, insulting and disturbing. The criticism is aimed specifically 

at a parcel, known as the Great Oak Ranch parcel, which was transferred to the 

Tribe through the administrative fee-to-trust process. In 2002, the Tribe succeeded 

in preventing a major power line from being situated on this parcel, the Great Oak 

Ranch. The Tribe, along with the surrounding community averted an environmental 

impact which would have left a lasting imprint on the lands of the Pechanga people 

and the Temecula Valley. 

We assure you the Tribe has devoted significant tribal resources ensuring the use 

of our lands adheres to the principles of the National Environmental Policy Act, the 

MSHCP and California environmental laws. We have long-standing cooperative and 

supportive relationships with our local environmental groups and our local governments, and have made every effort to coordinate our planning and gain their support for Tribal projects which affect the community. 

Protecting the sanctity of these lands through conservation and resource management is of the highest priority for the Tribe. Our mandate is to protect and enhance 

the sustainability and well being of the Pechanga way of life. Accordingly, the tribal 

government also issued an Executive Order zoning the land to be transferred under 

H.R. 2963 for conservation and management of wildlife and cultural values. Such 

zoning would make any commercial or other significant development of the lands 

contrary to tribal law. 

Recognizing the importance of these lands to the Pechanga people, the Tribe 

began working with the Bureau of Land Management (BLM) nearly 15 years ago 

to place these lands into trust. In the spring of 2004, the BLM indicated to Congressman Darrell Issa (R–CA) their willingness to transfer the land. In response to 

the BLM, Congressman Issa introduced legislation to transfer the land to the Tribe. 

During the 108th Congress, H.R. 4908, a bill which was substantially similar to 

H.R. 2963, was introduced in the House of Representatives. H.R. 4908 was not 

passed by the House due to concerns expressed by San Diego County late in the 

process. 

During the 109th Congress, the Pechanga Band of Luisen ̃ o Indians made extensive efforts to work with all affected parties to iron out any concerns or 

miscommunication regarding the provisions of H.R. 3507, which also passed out of 

the House of Representatives. We resolved all concerns expressed by parties of 

which we were aware, including concerns raised by Riverside and San Diego Counties. Concerns regarding management of the lands expressed by the U.S. Fish and 

Wildlife Service were resolved through language in the legislation regarding the 

management of and purposes for which the transferred land may be used and 

through the execution of a formal Memorandum of Understanding, signed by the 

Bureau of Land Management, the Fish and Wildlife Service and the Pechanga Band 

of Luisen ̃ o Indians. 

Also during the 109th Congress, it was discovered that a power line runs across 

the southwest corner of the parcel. The BLM and the owner of the power line, 

Sempra Energy, have agreed to language that addresses the identification and disposition of the 12.82 acres that encompasses the power line. That language has been 

incorporated into the current bill in front of you today, H.R. 2963. 

In the 110th Congress, the Bureau of Land Management remains supportive of 

this trust transfer, now embodied in H.R. 2963. We have also received the support 

of the City of Temecula, which is adjacent to the property, in the form of a resolution passed by the City Council. 

73 

In closing, I thank you for the opportunity to address you, and, on behalf of the 

Pechanga Band of Luisen ̃ o Mission Indians, I respectfully request your support for 

H.R. 2963. Thank you for your time and consideration of this matter. 

The CHAIRMAN. Mr. Chairman, thank you very much. You too 

have a history of appearing before our Committee. We appreciate 

very much your being here. 

We will hear now from the Honorable Aaron Payment, who is the 

Chairman of the Sault Ste. Marie Tribe of Chippewa Indians in 

Michigan. 

STATEMENT OF HON. AARON PAYMENT, CHAIRPERSON, 

SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS 

Mr. PAYMENT. Good morning. My name is Aaron Payment. I am 

the democratically-elected chairperson of my Tribe, the Sault Ste. 

Marie Tribe of Chippewa Indians. 

I would like to thank the Committee for the opportunity to 

present my testimony on H.R. 2120. This bill is important to my 

Tribe, because as I see it, it is simply an effort to correct a failure 

on behalf of the BIA to properly exercise its trust responsibility to 

my Tribe. 

My Tribe is the largest east of the Mississippi, with 38,000 members. We were recognized in 1972 after a 20-year struggle. The 

Treaty of Washington in 1936 recognized my Tribe’s aboriginal territory, which is where we have resided since time immemorial and 

where we continue to reside. 

Our service area includes the seven eastern counties in the 

Upper Peninsula of Michigan. About 12,000 of our members reside 

in our service area, with 64 percent of our members residing outside of our service area. Since receiving recognition in 1972, my 

Tribe has engaged in the arduous task of re-acquiring land in our 

original territory to meet the needs of our members. 

The present-day trust land of my Tribe is just over 1,000 acres. 

Again, that is 1,000 acres. Earlier today you had testimony on the 

volume of acres, we have just 1,000 acres. Five hundred sixty-seven 

acres are located in six separate sites within our treaty territory. 

All of these lands are held in trust by the United States for the 

benefit of my Tribe and are recognized as Indian Country subject 

to tribal and Federal jurisdiction. 

On these lands, we operate our tribal government and administrative programs, housing, health, social services and law enforcement and tribal businesses. Of the 1,600 acres that are held in 

trust, only 125, or a mere 8 percent, have been formally proclaimed 

as a reservation. 

H.R. 2120 concerns one piece of land, approximately 65 acres, 

just south of St. Ignace, Michigan, that my Tribe purchased in 

1982. In 1983, we requested that the United States proclaim this 

land Indian land under the Indian Reorganization Act. The United 

States took this land into trust in 1983 but never proclaimed it a 

reservation, despite the fact that my Tribe twice requested that it 

be proclaimed a reservation. H.R. 2120 would correct this egregious 

oversight. 

In May, 1988, my Tribe opened the Kewadin Shores Casino on 

the 1983 parcel we acquired. Because we did not have a great deal 

of resources at the time, we chose to open our Kewadin Shores CaVerDate Aug 31 2005 13:54 Sep 15, 2008 Jkt 042574 PO 00000 Frm 00077 Fmt 6633 Sfmt 6601 S:\DOCS\42574.TXT JACK PsN: JACKF
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sino in an existing building. Over time, we have added on to that 

structure. However, this casino became an unwieldy hodge-podge of 

add-ons. The old facility posed significant health hazards for our 

406 employees, because we have low ceilings and poor circulation 

and also and also health hazards due to cigarette smoke. 

Given the limitations of this facility, we decided to build a new 

facility. Looking at our land holdings, we determined that it was 

not in our best interest to build on the same land as our existing 

facility. Building the gaming space, lobby, hotel space on the 1983 

parcel would have meant that we would have had to dislocate several tribal families and other governmental programs on the small 

parcels of land that we do have. Additionally, building on the same 

location would mean significant loss in revenue during the construction. 

The new building was instead built partially on the 1983 parcel 

and partially on a piece of land contiguous to the 1983 parcel, 

which my Tribe acquired and placed into trust in 2000. The Indian 

Gaming Regulatory Act provides the land taken into trust prior to 

October 17, 1988 is eligible for gaming if such lands are located 

within or contiguous to the boundaries of the reservation, on October 17, 1988. The 1983 parcel, while not officially proclaimed a reservation, has always been treated as a reservation by both my 

Tribe and the United States. These lands were set aside by the 

United States for the use and benefit of my Tribe. Our people live, 

work and receive services on these lands. These lands are under 

civil and criminal jurisdiction of the United States and my Tribe. 

To my knowledge, there is no other criteria under Federal law that 

distinguishes the difference between trust and reservation status. 

The inability to use our land as we believe it should be used is 

entirely due to the inaction of the United States. My Tribe requested on at least two occasions, in 1986 and April 1988, both 

prior to the enactment of IGRA, that the United States proclaim 

the 1983 parcel a reservation. Prior to the enactment of IGRA, the 

United States got so far as to inform the local governments that 

a reservation proclamation was impending. Again, prior to IGRA, 

the United States acknowledged that a reservation request was impending. 

As we understand it, only the ministerial act of publishing the 

notice in the Federal Register was not done. In a supportive document from Terry Virden, BIA Regional Director in Minneapolis, the 

BIA acknowledges that my Tribe complied with all the applicable 

procedures prior to the enactment of IGRA, and that administrative oversight is likely to blame. 

H.R. 2120 would do what the United States said it was going to 

do in 1988. My Tribe has made a significant investment of over $41 

million to build our new casino to provide a safe and healthy environment for our 406 employees and customers, so that we can continue to be the economic engine in our area of the State. We did 

this on land that is in trust and is contiguous to land that is in 

trust since 1983. 

The new replacement casino would not increase gaming and 

would not add to the number of casinos now operating in Michigan. 

However, according to the Department of Interior, the only way 

that the Tribe can operate on this land without negotiating with 

75 

the State is through this legislation. We have the support of the 

BIA and all local governments, and also the Little Traverse Bay 

Band, our brother and sister tribe that is near us, for this legislation. We would urge expedited consideration of this legislation, so 

that we can finally use our building for what it was intended. 

Again, I would like to thank the Committee for its time and attention to this matter, and now I would be happy to answer any 

questions you might have of me. 

[The prepared statement of Mr. Payment follows:] 

PREPARED STATEMENT OF HON. AARON PAYMENT, CHAIRPERSON, SAULT STE. MARIE

TRIBE OF CHIPPEWA INDIANS

My name is Aaron Payment, I am the Chairperson of the Sault Ste. Marie Tribe 

of Chippewa Indians (Sault Tribe). I would like to thank the Committee for the opportunity to present this testimony on H.R. 2120. I would also like to thank the 

Michigan delegation for supporting this legislation. 

This bill is important to my Tribe because as I see it, it is simply an effort to 

correct a failure of the federal government to properly exercise its trust responsibility to my Tribe. Importantly, the Federal District Court in Michigan agrees with 

us and has enjoined the United States from enforcing its decision that the land in 

question is not a Reservation under federal law. Sault Ste. Marie Tribe of Chippewa 

Indians v. United States of America, 2:06–cv–276 (Western District, MI) (2007). I 

attach a copy of this decision for the record. Equally as significant the Department 

of the Interior has testified in support of this legislation. 

The Sault Tribe reestablished its relationship with the Federal Government in 

1972 after twenty long years of seeking federal recognition. The Treaty of March 

28, 1836, 7 Stat. 491, with the Chippewa and the Ottawa Bands of Northern Michigan, recognized my Tribe’s aboriginal territory. Now, our service area includes Chippewa, Mackinac, Luce, Schoolcraft, Alger, Marquette and Delta Counties. We are a 

descendancy Tribe with the number of enrolled members now approaching 33,000. 

Approximately 12,000 reside in the service area. Since receiving recognition in 1972, 

my Tribe has engaged in a systematic process to reacquire land in the Upper Peninsula of Michigan within our service area to meet the needs of our members who live 

in our traditional territory. 

The present day trust land of my Tribe is just over a thousand acres located in 

the City of Sault Ste. Marie and approximately 567 acres located in six separate 

sites within our treaty territory at Manistique, Wetmore, St. Ignace, Hessel, Marquette and Escanaba, Michigan. All of these lands are held in trust by the United 

States for the benefit of my Tribe and are recognized as ‘‘Indian Country’’ subject 

to tribal and federal jurisdiction pursuant to the 18 U.S.C. § 1151. 

On these lands, we operate our tribal government and administrative programs, 

housing programs, health programs, social service programs, law enforcement, and 

tribal businesses. Of the 1,600 acres held in federal trust, only 124.8 acres have 

been formally proclaimed as reservation. That is less than 8 percent. As is the case 

with many tribes recognized in the last thirty years, we are a land poor tribe when 

you consider the number of members per acre. Only 500 of our 33,000 members (or 

about 1.5 percent) reside on our reservation. Only 4 percent of those who reside in 

our service area (500/12,000) are able to reside on the reservation given our limited 

land base. 

H.R. 2120 concerns one piece of land (approximately 65 acres) that the Tribe purchased in St. Ignace, Michigan. In 1983, we requested that the United States take 

into trust and proclaim this land as a reservation under the Indian Reorganization 

Act of 1924, 25 U.S.C. § § 465, 467 (‘‘1983 Parcel’’). The United States took this land 

into trust in 1983 but never proclaimed it a reservation. This is so despite the fact 

that the Tribe twice requested that it be proclaimed a reservation. H.R. 2120 would 

correct this egregious oversight. 

In 1986, we opened the Kewadin Shores Casino on the 1983 Parcel. Because we 

did not have a great deal of resources at this time, we elected to open the Kewadin 

Shores Casino in an existing building. After the enactment of the Indian Gaming 

Regulatory Act, my Tribe entered into a compact with the State of Michigan in 

1993. Over time we added to the existing structure. However, this casino became 

an unwieldy conglomeration of add-ons. This type of facility composition posed significant health hazards to our 406 employees, because there was poor air circulation 

and ventilation due to cigarette smoke and concentrated population. There were also 

76 

serious sewage problems with this facility and its location. Finally, the internal 

maze like flow within the building was not good for our customers and the outside 

appearance was equally unappealing. 

Given the limitations of this facility, we decided to build a new building. In looking at our land holdings, the Board determined that it was not in the Tribe’s best 

interest to build on the same spot as the old facility because building the gaming 

space, lobby and hotel space on the 1983 parcel would mean having to dislocate several tribal families and other governmental programs from the land. Additionally, 

building on the same location would mean losing revenue during construction. The 

casino was instead built on a piece of land immediately adjacent to the old casino, 

which the Tribe acquired in trust in 2000 (‘‘2000 Parcel’’). 

As I understand it, the previous Administration believed that the Tribe could do 

gaming on the 2000 Parcel, because a provision in the Indian Gaming Regulatory 

Act that states that land taken into trust after October 17, 1988 are eligible for 

gaming if ‘‘such lands are located within or contiguous to the boundaries of the reservation of the Indian Tribe on October 17, 1988.’’ 25 U.S.C. § 2719(a)(1). 

I am advised that under the Supreme Court precedent, the 1983 Parcel is a reservation. The Supreme Court has held that ‘‘the principal test’’ for determining 

whether Indian land constitutes a reservation is ‘‘whether the land in question ‘ha[s] 

been validly set apart for the use of the Indians as such, under the superintendence 

of the government.’ ’’ United States v. John, 437 U.S. 634, 648–49 (quoting United 

States v. Pelican, 232 U.S. 442, 449 (1914)). In another case, the Court has said no 

‘‘precedent of this Court has ever drawn the distinction between tribal trust land 

and reservations and that the dispositive question was whether the ‘‘area has been 

‘validly set apart for the use of the Indians as such, under the superintendence of 

the Government.’ ’’ Oklahoma Tax Commission v. Citizen Band Potawatomi Indian 

Tribe of Oklahoma, 498 U.S. 505, 511 (1991) (quoting John). The 1983 Parcel is 

clearly land set aside for the use of Indians and has been under the superintendence 

and jurisdiction of the United States since 1983. 

In 2003 the Tribe asked the Department of the Interior to concur with this view. 

In February of 2006, we finally received an opinion from the Interior Solicitor’s Office stating that notwithstanding the fact that the 1983 Parcel was set aside for the 

Tribe and is under the jurisdiction of the United States, because the United States 

had never proclaimed it a reservation, it did not meet the definition of a reservation 

under federal law. Accordingly, the Acting Associate Solicitor determined that the 

2000 Parcel was not land contiguous to a Reservation under IGRA. 

By this time, we were close to finishing our new building, which was to be a new 

hotel and casino with a state-of-the art air filtration system. We held numerous 

meetings with Interior officials to urge them to correct their decision and rectify a 

problem that was created by the government’s own inaction. This was to no avail. 

The NIGC warned us that if we operated in the new building, they would issue a 

closure order. 

However, because the old facility was so unsafe, we elected to invest $3 million 

and put the Kewadin Shores Casino in a temporary building (or sprung structure), 

which was entirely on the 1983 Parcel, but is adjacent to the new casino building 

on the 2000 Parcel. While operating in the interim facility, the Tribe brought suit 

against the United States, challenging Interior’s determination that the 1983 Parcel 

was not a Reservation. 

In August of 2007, the Federal District Court for the Western District of Michigan 

granted the Tribe a preliminary injunction against the United States and permitted 

the Tribe to open in the new facility. The Court’s basis for its preliminary ruling 

rested on a number of factors one of them being the high likelihood that the Tribe 

would prevail on the merits that the 1983 Parcel is a Reservation under federal law. 

The other factor was the negative impact on the Tribe if it could not operate in the 

new facility. We are now operating in the new facility. 

We are currently still in Federal Court. The briefing on the merits on this case 

is now complete. We are hopeful for a positive outcome. I know the question for the 

Committee is why do we need the legislation if we are hopeful about our litigation? 

First, there is no guarantee in any litigation. Second, this litigation is very costly 

for the Tribe. Even if we win at the District Court level, there will be an appeal. 

This legislation moots the need for this costly litigation and will make things as 

they should have been when the Tribe asked that this land to be proclaimed a Reservation more than a decade ago. 

Finally resolving this matter without further litigation is vital to us. My Tribe 

spends 97 percent of our net revenue on membership services to make up for the 

shortfall of federal funding. The loss of income that could result if we are forced to 

close the new facility and reopen in another structure will likely result in a cut in 

membership services. 

77 

Moreover, tribal members and non-Indians alike in the local community could lose 

their jobs at the Kewadin Shores Casino. Forty five percent of all our casino employees are non-Tribal. Approximately $13.5 million of our $30 million payroll supports 

jobs for those who are not Tribal members, which underscores that this not simply 

an Indian problem. Jobs we provide afford great benefits, like retirement and health 

care. Jobs for which individuals pay taxes and re-circulate excess income in an already stagnating economy. We currently employ about 20 percent of the adult workforce of the local city of St. Ignace—a tourism town. Job losses will result in additional burdens on the Tribe’s and State’s social services as those who lose their jobs 

will turn to Tribal and State support programs. 

The inability to use our land as we believe it should be used is entirely the fault 

of the United States. The Tribe requested two different times (1986 and April, 

1988—both prior to the enactment of IGRA in October 1988) that the United States 

proclaim the 1983 Parcel a reservation. In 1988, the United States got so far as to 

inform the local governments that a reservation proclamation was ‘‘impending.’’ As 

we understand it, only the ministerial act of publishing the notice in the Federal 

Register was not done. 

In a supportive document from Terry Virden, BIA Regional Director in Minneapolis, the BIA acknowledges that the Tribe complied with all applicable procedures prior to the enactment of IGRA in October of 1988 and that an administration 

oversight is likely to blame. Why this land was not proclaimed a reservation, we 

do not know, but we do not believe that the Tribe or the people of the Upper Peninsula should have to pay for this failure. 

H.R. 2120 would do what the United States said it was going to do in 1988 and 

what it should have done in 1983 or even 1986. My Tribe has made a significant 

investment of $41 million to build this new casino to provide a safe and healthy 

place for our 406 employees and customers and to continue to be the economic engine of this area of the State. We did this on land that is held in trust and is contiguous to land that has been in trust since 1983. The new replacement casino does 

not increase gaming. Nor does it add to the number of casinos now operating in 

Michigan. However, according to the Department of the Interior, the only way that 

the Tribe can operate a casino on this land—without negotiating with the state— 

is this legislation. We have the support of the city, township and county governments, and the neighboring tribe of just thirty miles–the Little Traverse Bay Band 

of Odawa Indians–for this legislation. 

Again, I would like to thank the Committee for its time and attention to this matter. 

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The CHAIRMAN. Mr. Chairman, thank you very much for being 

with us today. 

Next we will hear from the Honorable Benjamin Nuvamsa, 

Chairman of the Hopi Tribe in Arizona. I regret that we do not 

have a name tag in front of you, but welcome to the Committee, 

and you may proceed, Mr. Chairman. 

STATEMENT OF HON. BENJAMIN H. NUVAMSA, CHAIRMAN, 

HOPI TRIBE 

Mr. NUVAMSA. [Greeting in native tongue.] Good morning, Chairman Dorgan, members of the Senate Committee on Indian Affairs. 


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The Hopi Indian Tribe appreciates the opportunity to provide testimony on S. 531, the Repeal of the Bennett Freeze. My name is 

Benjamin Nuvamsa, and I am Chairman of the Hopi Tribe. 

Before I begin, I would like to thank Senator McCain for introducing this legislation and for his ongoing leadership on this very 

important matter. The Hopi Tribe supports the Committee’s efforts 

through S. 531 to end the Bennett Freeze and thereby assist the 

Hopi and Navajo people in resolving the longstanding dispute between our people over lands of the 1934 Act reservation. 

This repeal of the Bennett Freeze will close a long, contentious 

period in the history of our tribes. We can now move forward into 

what I hope will be a new era of cooperation between the Hopi and 

Navajo, which is vital to both tribes. For more than 100 years, the 

Hopi Tribe has worked to prevent the loss of its lands through the 

much-larger Navajo Nation and to preserve the rights of the Hopi 

to control its lands against intrusion. 

Beginning in 1958, the United States Congress enacted a series 

of laws intended to lead to a final resolution of the disputes between the Hopi and Navajo of the 1882 Hopi Reservation. The Navajo-Hopi Land Settlement Act of 1974 authorized litigation between 

the Hopi and the Navajo to determine the tribes’ respective rights 

in both the 1882 and the 1934 Act Reservation. 

Incidentally, I wanted to make a point here that also my grandfather, Peter Nuvamsa, Sr., was our first chairman of the Hopi 

Tribe and he worked on this issue back in his day. 

In November 2006, Secretary of the Interior Dirk Kempthorne 

approved an intergovernmental compact between the Hopi Tribe 

and the Navajo Nation, ending more than 40 years of litigation between our tribes over lands within the 1934 Act Navajo Reservation. In December, 2006, the United States District Court for Arizona approved this compact. 

The agreement between our tribes accomplishes several important objectives. First, it ends the long, contentious and expensive 

litigation between the Hopi and Navajo over the lands of our respective reservations. Secondly, it grants to the members of both 

tribes certain religious access and use rights on the lands of the 

other. 

Thirdly, the agreement secures to the Hopi religious practitioners 

the right to gather eagles on parts of the Navajo Reservation. And 

finally, this agreement ends the development moratorium imposed 

under the Bennett Freeze. All that remains is for Congress to 

amend the 1974 Act to repeat that section of the Act that codified 

the freeze. 

Passage of S. 531 will symbolize the close of a long and difficult 

period in the history of our tribes, and will set the stage for a new 

period of optimism for the Hopi and the Navajo people in the area, 

one which will allow Hopis and Navajos to pursue economic and resource development initiatives rather than litigation. 

In our cooperation, we hope to improve the quality of life enjoyed 

by our people, while allowing access to and regular use of sacred 

sites and shrines on our respective lands. We hope that passage of 

S. 531 will lay the foundation for cooperation not only between the 

Hopi and the Navajo, but also between the two tribes and the 

United States; a foundation that will support our joint efforts to deVerDate Aug 31 2005 13:54 Sep 15, 2008 Jkt 042574 PO 00000 Frm 00105 Fmt 6633 Sfmt 6601 S:\DOCS\42574.TXT JACK PsN: JACKF
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velop the lands and resources and the economies of our two tribes 

into the sustainable homelands that the tribes and the United 

States intended them to be. 

Chairman Dorgan, let me thank you and the members of this 

Committee for the opportunity on behalf of the Hopi Tribe to testify 

concerning S. 531. We look forward to working with the Committee 

to resolve any issues raised by this legislation and moving it closer 

to passage. 

I am happy to answer any questions that you may have. Thank 

you very much. 

[The prepared statement of Mr. Nuvamsa follows:] 

PREPARED STATEMENT OF HON. BENJAMIN H. NUVAMSA, CHAIRMAN, HOPI TRIBE

Good morning, Chairman Dorgan, members of the Senate Committee on Indian 

Affairs. 

The Hopi Indian Tribe appreciates the opportunity to provide testimony on S. 531, 

the Repeal of the Bennett Freeze. My name is Benjamin Nuvamsa, and I am Chairman of the Hopi Tribe. 

Before I begin, I would like to thank Senator McCain for introducing this legislation and for his ongoing leadership on this very important matter. 

The Hopi Tribe supports the Committee’s effort through S. 531 to end the Bennett 

Freeze and thereby assist the Hopi and Navajo people in resolving the long-standing 

dispute between our people over the lands of the 1934 Act Reservation. Congress’ 

repeal of the Bennett Freeze will close a long contentious period in the history of 

our tribes. We can now move forward into what I hope will be a new era of cooperation between the Hopi and Navajo, on issues vital to both tribes. For more than 100 

years, the Hopi Tribe has worked to prevent the loss of its lands through the muchlarger Navajo Nation and to preserve the rights of Hopi to control its lands against 

intrusion. 

Beginning in 1958, the United States Congress enacted a series of laws intended 

to lead to a final resolution of the disputes between the Hopi and Navajo of the 1882 

Hopi Reservation. The Navajo-Hopi Land Settlement Act of 1974 authorized litigation between the Hopi and the Navajo to determine the tribes’ respective rights in 

both the 1882 and the 1934 Act Reservation. 

Incidentally, I wanted to make a point here that also my grandfather, Peter 

Nuvamsa, Sr., was our first chairman of the Hopi Tribe and he worked on this issue 

back in his day. 

In November 2006, Secretary of Interior Dirk Kempthorne approved an Intergovernmental Compact between the Hopi Tribe and the Navajo Nation, ending more 

than 40 years of litigation between our tribes over lands within the 1934 Act Navajo 

Reservation. In December 2006, the United States District Court for Arizona approved the Compact. 

This agreement between our tribes accomplishes several important objectives. 

First, it ends the long, contentious and expensive litigation between the Hopi and 

Navajo over the lands of our respective reservations. Secondly, it grants to the members of both tribes certain religious access and use rights on the lands of the other. 

Thirdly, the agreement secures to Hopi religious practitioners the right to gather 

eagles on parts of the Navajo Reservation. And finally, this agreement ends the development moratorium imposed by the Bennett Freeze. All that remains is for Congress to amend the 1974 Act to repeal that section of the Act that codified the 

freeze. 

Passage of S. 531 will symbolize the close of a long and difficult period in the history of our tribes and will set the stage for a new period of optimism for Hopi and 

Navajo people in the area, one which allows Hopi and Navajo to pursue economic 

and resource development initiatives rather than litigation. 

In our cooperation, we hope to improve the quality of life enjoyed by our people, 

while allowing access to and regular use of sacred sites and shrines on our respective lands. We hope that passage of S. 531 will lay a foundation for cooperation not 

only between the Hopi and Navajo, but also between the two tribes and the United 

States; a foundation that will support our joint efforts to develop the lands and resources and the economies of our two tribes into the sustainable homelands that the 

tribes and the United States intended them to be. 

Chairman Dorgan, let me thank you and the members of this Committee for the 

opportunity on behalf of the Hopi Tribe to testify concerning S. 531. We look forVerDate Aug 31 2005 13:54 Sep 15, 2008 Jkt 042574 PO 00000 Frm 00106 Fmt 6633 Sfmt 6621 S:\DOCS\42574.TXT JACK PsN: JACKF
103 

ward to working with the Committee to resolve any issues raised by this legislation 

and moving it closer to passage. 

I am happy to answer any questions that the members may have. Thank you very 

much. 

The CHAIRMAN. Mr. Chairman, thank you very much. 

Finally, we will hear from Mr. Raymond Maxx, who is the Navajo Nation Council Delegate and Chairman of the Navajo-Hopi 

Land Commission, Navajo Nation Council, in Window Rock, Arizona. Mr. Maxx, you may proceed. 

STATEMENT OF RAYMOND MAXX, CHAIRMAN, NAVAJO-HOPI 

LAND COMMISSION 

Mr. MAXX. [Greeting in native tongue.] Thank you, Senator Dorgan, for inviting me to come before this body. Senator Murkowski, 

Senator Tester, good morning. 

My name is Raymond Maxx. I am the Chairman of the NavajoHopi Land Commission, which is the Navajo Nation Council entity 

responsible for overseeing the Bennett Freeze matters. Thank you 

for this opportunity to speak about S. 531, legislation that would 

formally strike from the United States code of provisions authorizing the development freeze in the western portion of the Navajo 

Nation. 

On November 3, 2006, the Navajo Nation and the Hopi Tribe and 

Secretary Kempthorne signed an intergovernmental compact in 

Phoenix, settling the litigation over the western portion of the Navajo Nation that had been subject to Federal development restriction, commonly referred to as the Bennett Freeze. It was a wonderful day and signaled a new beginning for all parties. 

Because my family was relocated twice by the Federal Government and now lives in a former Bennett Freeze area, I have firsthand knowledge of what conditions were like. When we located to 

the Bennett Freeze area in the late 1970s, I don’t think my parents 

fully understood that they could not fix their home in the Bennett 

Freeze; that you could not make additions; that no Federal, Tribal 

or State programs could assist your community through the building of infrastructure essential to the health and well-being of any 

community. As a result, the Bennett Freeze is locked into the poverty of 1966, when the freeze was imposed. 

For the families who live in the former freeze area, so long as 

the authority for the freeze remains in the U.S. Code, there also 

remains a fear that it could be reimposed. Passage of S. 531 could 

send a powerful signal that all parties have begun the process of 

moving on from the divisive disputes of the past. It could also ensure that there are no ambiguous interpretations which would lead 

to the re-imposition of the Bennett Freeze development freeze. 

In addition to passing S. 531, I would encourage the Committee 

to hold field hearings on how the Bennett Freeze area can be redeveloped and what level of Federal support should be provided. 

Thank you for this opportunity to speak on S. 531. Thank you. 

[The prepared statement of Mr. Maxx follows:] 

104 

PREPARED STATEMENT OF RAYMOND MAXX, CHAIRMAN, NAVAJO-HOPI LAND

COMMISSION

My name is Raymond Maxx. I am the Chairman of the Navajo-Hopi Land Commission, which is the Navajo Nation Council entity responsible for overseeing Bennett Freeze matters. 

Thank you for this opportunity to speak about S. 531, legislation that would formally strike from the U.S. code the provisions authorizing a development freeze in 

the western portion of the Navajo Nation. 

On November 3, 2006, the Navajo Nation, the Hopi Tribe and Secretary Kempthorne signed an intergovernmental compact in Phoenix settling the litigation over 

the western portion of the Navajo Nation that had been subject of a federal development restriction, commonly referred to as the Bennett Freeze. It was a wonderful 

day and signaled a new beginning for all the parties. 

Because my family was relocated twice by the Federal government, and now lives 

in the former Bennett Freeze area, I have first hand knowledge of what conditions 

are like. When we relocated to the Bennett Freeze area in the late 1970s, I don’t 

think my parents fully understood that you could not fix your home in the Bennett 

Freeze; that you could not make additions; that no Federal, Tribal or State programs could assist your community through the building of infrastructure essential 

to the health and well-being of any community. As a result, the Bennett Freeze was 

locked into the poverty of 1966, when the freeze was imposed. 

For the families who live in the former Bennett Freeze area, so long as the authority for the Freeze remains in the U.S. Code, there also remains a fear that it 

could be reimposed. Passage of S. 531 would send a powerful signal that all parties 

have begun the process of moving on from the divisive disputes of the past. It would 

also ensure that there are no ambiguous interpretations which could lead to the reimposition of the development freeze. 

In addition to passing S. 531, I would encourage the Committee to hold a field 

hearing on how the Bennett Freeze area can be redeveloped and what level of Federal support should be provided. 

Thank you for this opportunity to provide testimony on S. 531. 

105 

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The CHAIRMAN. Mr. Maxx, thank you very much. 


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Finally, we will ask Mr. Gidner to comment on the other three 

pieces of legislation that have been testified to in this panel. Mr. 

Gidner? 

Mr. GIDNER. Thank you, Mr. Chairman. This is the happier part 

of my testimony, because the Department supports all three of 

these bills. 

I will say, if I may preface my comments regarding H.R. 2120, 

on the Sault Ste. Marie, I am myself a proud member of the Sault 

Ste. Marie Tribe. I am recused from this decision, but I will state 

the Department’s position on the record. We support the bill with 

one clarifying amendment which is in the written testimony. If I 

could beg your forbearance, if you have any questions on this bill, 

if you could submit them in writing, because I am recused from the 

matter and really should not be answering questions about it in 

this forum. 

The CHAIRMAN. Is that 2120? 

Mr. GIDNER. Yes, 2120. I am a member of the Sault Ste. Marie 

Tribe. 

The CHAIRMAN. Thank you. 

Mr. GIDNER. Regarding H.R. 2963, on the land into trust for 

Pechanga, we support that bill. We do have some comments on it. 

The bill requires the Bureau of Land Management to complete a 

new survey within 180 days of enactment. We recommended that 

be changed to say as soon as practicable. The BLM does have a 

process and surveys in the queue. We would prefer this one join the 

queue rather than jump to the front, in fairness to the other survey 

work that needs to be done. 

There are also improvements on the land, and we would suggest 

that any improvements be transferred to the Tribe in fee and that 

the Department of Interior is not responsible for any improvements 

that may be transferred along with the lands. 

Finally, a minor matter, but the bill references the MOU between the Tribe and the U.S. Fish and Wildlife Service. Bureau of 

Land Management was also signatory to that MOU and we would 

recommended that the bill be amended to reflect that. 

Finally, S. 531, repealing the Bennett Freeze, we wholeheartedly 

support that. The Tribes, Hopi and Navajo, should be commended 

for the hard work and negotiations that have gone into that. They 

put aside decades of dispute, came up with a solution and everything that needs to happen has happened except for the repeal of 

this section. So we wholeheartedly support that. 

That concludes my testimony, Mr. Chairman. 

[The prepared statement of Mr. Gidner follows:] 

PREPARED STATEMENT OF JERRY GIDNER, DIRECTOR, BUREAU OF INDIAN AFFAIRS, 

U.S. DEPARTMENT OF THE INTERIOR

Good morning, Chairman Dorgan, Vice Chairwoman Murkowski, and Members of 

the Committee. I am pleased to be here today to provide the Department of the Interior’s (Department) position on H.R. 2120, a bill to direct the Secretary of the Interior to proclaim as reservation for the benefit of the Sault Ste. Marie Tribe of Chippewa Indians a parcel of land now held in trust by the United States for that Indian 

tribe; S. 2494, the ‘‘Spokane Tribe of Indians of the Spokane Reservation Grand 

Coulee Dam Equitable Compensation Settlement Act’’; H.R. 2963, the ‘‘Pechanga 

Band of Luisen ̃ o Mission Indians Land Transfer Act of 2007’’; S. 1080, the ‘‘Crow 

Tribe Land Restoration Act’’; and S. 531, a bill to repeal section 10(f) of Public Law 

93–531, commonly known as the ‘Bennett Freeze’. 

116 

H.R. 2120 

We support the purpose of H.R. 2120, a bill to proclaim as reservation for the benefit of the Sault Ste. Marie Tribe of Chippewa Indians a parcel of land now held 

in trust by the United States for that Indian tribe. Currently, the matter is before 

the court as Sault Ste. Marie Tribe v. United States, Civ. No. 2:06–CV–276, and if 

Congress passes the legislation, it would put an end to the litigation. 

The Sault Ste. Marie Tribe (Tribe) is located in the far northern section of Michigan and has two reservations. The Tribe also has property the Department holds 

in trust for them that is not considered reservation land for purposes of the Indian 

Gaming Regulatory Act (IGRA). One such parcel is the subject of H.R. 2120, on 

which there is Indian housing, some other tribal facilities, a now-closed casino, and 

a casino housed in a temporary structure that has since been moved to another location. In 1988, the Tribe approached the Department to have the land proclaimed a 

reservation, along with five other parcels, but its paperwork was not completed prior 

to the enactment of IGRA. 

The Tribe seeks to game on adjoining property taken in trust in the year 2000. 

It built a new casino on this parcel. The Tribe was advised by the Department and 

the National Indian Gaming Commission that they would need to apply under IGRA 

for a two-part determination in order to game on the parcel. If Congress deems the 

first parcel to be reservation as of April 1988 for purposes of IGRA, then the tribe 

can game in its new casino under an exception in IGRA. 

We suggest amending the legislative language to reflect that ‘‘the property shall 

be deemed a reservation as of April 19, 1988, for purposes of the Indian Gaming 

Regulatory Act.’’ We will be happy to work with the Committee staff on amending 

the legislation to reflect the necessary changes. 

S. 2494 

The Department opposes S. 2494, the ‘‘Spokane Tribe of Indians of the Spokane 

Reservation Grand Coulee Dam Equitable Compensation Settlement Act’’. The Administration has worked with the Spokane Tribe over the last several years on this 

issue. We believe negotiations to correct several serious issues should continue. 

S. 2494 would provide compensation to the Spokane Tribe for the use of its land 

for the generation of hydropower by the Grand Coulee Dam. Specifically, S. 2494 

would require the Secretary of the Interior, subject to the availability of appropriations, to deposit $99.5 million over five years, $23,900,000 for Fiscal Year 2008 and 

$18,900,000 for the following four fiscal years, into a trust fund held in the U.S. 

Treasury and maintained and invested by the Secretary of the Interior for the Spokane Tribe to be known as the ‘‘Spokane Tribe of Indians Settlement Fund’’. S. 2494 

would also transfer certain land and administrative jurisdiction from the Bureau of 

Reclamation (BOR) to Bureau of Indian Affairs (BIA) for the Spokane Tribe. The 

land transferred would be held in trust for the Spokane Tribe and would become 

part of the reservation. 

The Spokane Tribe has not brought forward a legal claim that would warrant this 

type of settlement. The Administration questions whether the Tribe has or could 

bring any legal claim that would entitle it to compensation as contemplated under 

the bill. In light of the lack of any pending legal claim, the Administration does not 

believe this legislation is currently justified as a settlement of claims. 

The Department is also concerned with transferring land and jurisdiction from the 

Bureau of Reclamation to the Bureau of Indian Affairs for the Tribe absent a prior 

written agreement to fully address Reclamation’s and National Park Service’s future 

ability to manage Grand Coulee Dam, Lake Roosevelt, and the Columbia Basin 

Project. Such a written agreement should clearly address a number of issues associated with transferring land into trust status, such as future liability for damages 

from shoreline erosion and heavy metal contamination in sediments from upstream 

mining, as well as issues related to land and recreation management, including consideration of the existing five-party Lake Roosevelt Cooperative Management Agreement. While under the present draft Reclamation would be granted a perpetual 

easement to operate the Columbia Basin Project, it is imperative that the parties 

specifically reach agreement on the details of the lands and easement rights involved and how the transferred areas will be managed prior to the passage of this 

legislation. At a minimum, such an agreement should be required prior to the actual 

transfer taking place. 

H.R. 2963 

This legislation directs the Secretary of the Interior to transfer three parcels of 

public land totaling approximately 1,178 acres in Riverside County, California, currently managed by the Bureau of Land Management (BLM), into trust status for 

the benefit of the Pechanga Band of Luisen ̃ o Mission Indians (Tribe). 

117 

The Department supports the bill, and recommends certain technical and clarifying amendments pertaining to an accurate legal description, surveys, valid existing rights, and improvements. We look forward to working with the Committee to 

resolve these concerns. 

The BLM has worked with the Tribe over the past several years concerning their 

interest in acquiring land to add to their reservation. These lands are covered by 

BLM’s 1994 South Coast Resource Management Plan (RMP), which does not identify the parcels for disposal. The Department understands that the Tribe has enacted a resolution committing the Tribe to conserving the parcels’ cultural and wildlife values. In addition, in 2005, the Tribe entered into a Memorandum of Understanding (MOU) with the U.S. Fish and Wildlife Service and the BLM, which states 

that the Tribe will manage the lands for conservation purposes, which this bill reflects. Recognizing the Tribe’s interest in obtaining the land for cultural and conservation purposes, the BLM would be supportive of amending its land use plan to 

enable the transfer to proceed. The transfer process could take several years to complete, and the Tribe has sought this legislation to obtain the parcels more quickly 

through the legislative process. 

The first parcel is nearly 20 acres and contains significant cultural properties, including burials, of high importance to the Tribe. It is an isolated public land parcel 

characterized by rolling coastal sage scrub and surrounded by private, generally residential, lands. In response to potential threats to the cultural resources of the parcel, the BLM instituted a Public Land Order (No. 7343) in 1998 that withdrew the 

entire parcel from surface entry, mining, mineral leasing, and mineral material 

sales. There are no other encumbrances, including mining claims, which are known 

to exist on the lands. A Memorandum of Understanding between BLM and the Tribe 

was initiated in 2001, which outlines cooperative management of the parcel, including preservation of its cultural resource values. The Tribe owns and maintains an 

adjacent parcel of land containing another portion of the Pechanga Historical Site. 

The second, and much larger parcel, is slightly more than 958 acres and is adjacent to the Tribe’s reservation. These lands are included in the Western Riverside 

County Multi-Species Habitat Conservation Plan and the Fish and Wildlife Service 

(FWS) has found them to be significant for their connectivity with rivers and as 

wildlife corridor. The Tribe and others were consulted on the Plan, and these wildlife values are encompassed in the Tribal resolution referenced above. This rugged 

parcel is characterized by a dense mix of oak woodlands, chaparral and coastal sage 

scrub, and slopes throughout the parcel are steep and eroded. The parcel also includes a service road right-of-way, as well as a 10-inch waterline and water tank 

that was granted for 30 years to the Rainbow Municipal Water District in 1983. No 

other encumbrances, including mining claims, are known to exist within this parcel. 

To resolve a trespass issue, 12.82 acres will be sold to San Diego Gas & Electric 

for fair market value in accordance with the Uniform Appraisal Standards for Federal Land Acquisitions and the Uniform Standards of Professional Appraisal Practice. 

The third parcel is 200 acres, which is included in the Multi-Species Habitat Conservation Plans of Western Riverside County. The resources in this parcel are similar to those in the second parcel. 

The Department does have some concerns with the bill. The bill requires the BLM 

to complete a new survey within 180 days of enactment. We recommend that the 

lands to be transferred be surveyed ‘‘as soon as practicable,’’ rather than within 180 

days, as currently required by the bill. Additionally, we recommend language be 

added to the bill that specifies that any improvements, appurtenances, and personal 

property will be transferred to the Tribe in fee at no cost and the Department of 

the Interior is not responsible for any improvements, appurtenances, and personal 

property that may be transferred along with the lands. The Department feels this 

change is necessary since the federal government does not have a fiduciary obligation to repair and maintain any acquired improvements. Finally, the bill references 

the MOU between the Tribe and the U.S. Fish and Wildlife Service. The BLM was 

also a signatory of the MOU and we recommend the measure reflect that. 

The Department has had a very cooperative working relationship with the Tribe 

on the proposed land transfer and supports the bill’s enactment with these modifications. 

S. 1080 

S. 1080 would require the Secretary to develop a program to acquire interests in 

land from eligible individuals within the Crow Reservation in the State of Montana 

and to hold those acquired interests in trust for the Crow Tribe (Tribe). The Department is very supportive of the goals to reunify the Tribe’s reservation land and enVerDate Aug 31 2005 13:54 Sep 15, 2008 Jkt 042574 PO 00000 Frm 00121 Fmt 6633 Sfmt 6621 S:\DOCS\42574.TXT JACK PsN: JACKF
118 

courage the Tribe to manage its own assets; however, the bill raises considerable 

concerns as drafted. Therefore, the Department cannot support the bill at this time. 

We are concerned with the bill regarding its definitions, timing, size, and mechanisms. We look forward to working with the Committee to address our concerns 

with the bill and on ways to create a viable program. 

S. 531 

We support S. 531, a bill to repeal section 10(f) of Public Law 93–531, commonly 

known as the ‘‘Bennett Freeze.’’ 

On November 3, 2006, Secretary Kempthorne, Navajo Nation President Joe Shirley Jr. and Hopi Vice Chairman Todd Honyaoma signed an historic Navajo-Hopi 

Intergovernmental Compact, resolving a 40-year-old dispute over tribal land in 

northeastern Arizona. 

The compact put an end to the ban on construction in the disputed area that was 

imposed by U.S. Commissioner of Indian Affairs Robert Bennett in 1966. Commonly 

known as the ‘‘Bennett Freeze,’’ this ban has greatly affected the use of this land 

and has been a severe hindrance to the people who live there. 

The agreement also provides that the United States Fish and Wildlife Service will 

study eagle populations in the disputed area and regulate the use of eagles depending on the size of the population. The Hopi Tribe and the Navajo Nation, which 

were in litigation since 1958 concerning ownership of nearly 10 million acres on 

their reservations in northeast Arizona, also have agreed to dismiss litigation, to release each other from claims, and to share funds collected for the use of parts of 

the disputed property that are held by the Department of the Interior. 

While the agreement put an end to the ban on construction in the disputed area, 

the agreement did require the approval of the judge adjudicating the litigation between the Hopi Tribe and the Navajo Nation. The final requirement is to repeal that 

section of Public Law 93–531 (25 U.S.C. 640(d)–9(f)), from current law in order to 

fully lift the ‘‘Bennett Freeze.’’ 

Mr. Chairman, this concludes my statement and I will be happy to answer any 

questions you may have. 

The CHAIRMAN. Mr. Gidner, thank you very much. We appreciate 

your being here. 

Let me go back to the point you made with respect to the Crow 

Reservation. Tell me how long there have been discussions between 

Interior and the Crow Nation with respect to fractionation. 

Mr. GIDNER. I am not sure exactly. It has been at least two or 

three years, I believe. 

The CHAIRMAN. Tell me again the objection of the Interior Department to this legislation. 

Mr. GIDNER. In more detail, it is not an objection to the purpose, 

it is not an objection overall to the mechanism. I guess it is objections to the details. A small matter is the timing. The bill prohibits 

loans under this program after a certain date in 2012. We believe 

that needs to be updated. It is now already 2008. We don’t think 

the program could be completed in that amount of time. Again, 

that is a minor timing issue. 

There are some concerns regarding the size of the loans, the loan 

program that is available. It may be better to break it into phases, 

so that the liability for the Government is not potentially so large. 

At one time, I think it was around $380 million that was discussed 

in the bill. 

We also have questions about some of the definitions, for example, reasonable purchase price. It is unclear how that translates 

into the need for an appraisal and exactly how that would work. 

If appraisals would be required to be provided by the Department 

of Interior, that could be problematic due to our funding constraints and backlog of appraisal needs. 

The CHAIRMAN. H.R. 2120, do you support that generally? 

119 

Mr. GIDNER. Yes, the Department supports that, with one clarifying change which is set forth in the written testimony. 

The CHAIRMAN. Chairman Macarro, you said that you had been 

working with the BLM for 15 years to place the lands that you 

have described into trust for the Tribe. What, in your opinion, has 

taken so long to have these lands put into trust? Why has it taken 

that long? 

Mr. MACARRO. It was actually 1990 when they initiated, at least 

in Southern California, involving this parcel, the first scoping hearing for lands potentially to be put on disposal. I think the pace of 

these things as they move characteristically through the BLM, with 

regard to transfers of land, tracts of land, my understanding is that 

the parcel is not slated for disposal officially. At previous times it 

has been and it hasn’t been. So it has gone on and off the list. Just 

working through the administrative process, with different directors, area directors for the BLM, out of Palm Springs and a decade 

and a half of dealings, it is the pace of slow change. 

The CHAIRMAN. We are familiar with the word slow. 

[Laughter.] 

Mr. MACARRO. Maybe deliberate. 

The CHAIRMAN. We hear it a lot in testimony before this Committee. 

Senator Murkowski. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Mr. Gidner, I wanted to ask you, because you have indicated that 

you support, the Administration supports all three of the bills that 

we have in front of us. With regard to S. 531, I think you used the 

words ‘‘wholeheartedly support.’’ But does the Department intend 

to devote any resources towards assisting the families or otherwise 

helping to develop this Bennett Freeze area? What is the intention 

within the agency? 

Mr. GIDNER. I don’t believe we have any budgeted resources for 

that at this time, Senator. 

Senator MURKOWSKI. Is that something you would consider? 

Mr. GIDNER. We would certainly consider that for the budget 

process, yes. 

Senator MURKOWSKI. Chairman Payment, in your comments, Mr. 

Gidner has indicated that he can’t give further commentary to this 

because he is conflicted. I appreciate that. If I understood all that 

you said, at some point during the time when you had made two 

previous requests for clarification of this legal status of the land, 

at one point in time they said that the approval was pending and 

that at a later point in time there was an admission, if you will, 

of administrative oversight. Is that, in your opinion, what has 

caused this delay? It has been just simply that, an administrative 

oversight, and it is not because of particular issues that may have 

been resolved that you think with this, we might be able to clear 

it up? 

Mr. PAYMENT. Yes. It is kind of puzzling, because I am a student 

of political science, and I have looked through this very carefully. 

We pulled together all of our resolutions and did the research 

through documents the BIA had. Everything happened, the testimony happened, the local hearings happened with the community 

to see what the effects would be on the community. And the only 

120 

thing that was left to happen was the reservation proclamation 

being published in the Federal Register. 

I think it is because of that we have been able to show that and 

work closely with the BIA that they acknowledge that. They don’t 

really know why it didn’t happen. So the only shortcoming is they 

don’t believe they have the authority to do it this many years later. 

They encouraged us to actually write a bill. 

We also have legislation and we are prevailing in that legislation, but it seems an unnecessarily adversarial role to be suing the 

Department of Interior on this situation when it can be resolved 

through legislation. We have litigation, I meant. 

Senator MURKOWSKI. Right. Good. 

And this is a question to both Chairman Nuvamsa and to Delegate Maxx. Should we be successful with the legislation in lifting 

this freeze, what do you hope or what kinds of development are you 

looking to for the Hopi and the Navajo Tribes, if we are successful 

with this? 

Mr. NUVAMSA. Thank you, Senator Murkowski. 

The area is isolated. One of the first things we need to do is develop the infrastructure. The people living out there, roads are in 

terrible shape. The utilities and so on. 

Senator MURKOWSKI. There are roads in the area, though? 

Mr. NUVAMSA. Leading up to there. As people begin to occupy 

this area, we are going to need to have infrastructure development. 

Because again, this area is isolated. I think that would be the beginnings of it, that we have some plans on the future use of it, but 

because of the freeze and so on, we have been unable to do so at 

this point. But I see people beginning to occupy and be able to, 

again, enjoy the same quality of life that everybody enjoys by development, the infrastructure, utilities and so on. 

Senator MURKOWSKI. Mr. Maxx, did you want to add anything to 

that? 

Mr. MAXX. Thank you, Senator. Along with infrastructure, the 

basic need of housing, we are really lacking housing. For a long 

time, you couldn’t even repair a home unless you had permission. 

And the process took at least five years to get a door or a roof fixed. 

Senator MURKOWSKI. Even to make repairs to existing infrastructure, you couldn’t fix your roof under this freeze? 

Mr. MAXX. That was prohibited under the freeze. So basic homes, 

roads, infrastructure and Navajo Nation is like 30 years or 20 

years behind mainstream society. The Bennett Freeze area is like 

30 or 40 years behind Navajo. So that would show you what kind 

of situation the former Bennett Freeze area is in, after 40 years of 

Bennett Freeze, it really needs a lot of homes and infrastructure 

and improvements to catch up with the mainstream. 

Senator MURKOWSKI. Thank you. I appreciate the responses and 

I appreciate the testimony of all of you this morning. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Tester. 

Senator TESTER. Thank you, Mr. Chairman. 

I have one question for Chairman Payment. Just a clarification 

about the 65 acres that is under trust, correct? Does it physically 

border your current reservation? I thought I heard you say that, 

but I just wanted to make sure that is the case. 

121 

Mr. PAYMENT. Yes, it does. We actually had an option on both 

parcels when we first looked at buying it. But we became recognized in 1972, we didn’t have gaming until 1985, we didn’t have 

resources to buy all of the land. So we optioned both parcels, but 

we purchased one piece. It is contiguous, and you can see the not 

in my backyard, we are not in anybody’s backyard. We are about 

three or four miles outside of the city proper. 

We have their support, but we don’t abut anybody else’s property. It is contiguous to our existing trust land. 

Senator TESTER. Okay, thank you. 

Mr. Gidner, you had mentioned three things that you had concerns about, the 2012 time line, the size of the land I think who 

determines reasonable purchase price, if I heard you correctly. Are 

there any other concerns? 

Mr. GIDNER. There have been questions raised about whether a 

direct loan program is appropriate as opposed to some sort of guaranteed loan program, which we already have. So I would just add 

that. 

Senator TESTER. What you already have in the form of what? 

Mr. GIDNER. We have a guaranteed loan program already. 

Senator TESTER. For this purpose? 

Mr. GIDNER. Well, not specifically for this purpose, for economic 

development generally. 

Senator TESTER. Okay. The 2012 time line, what kind of time 

line does the Department think it should be at? 

Mr. GIDNER. Originally, I believe we had five years. If the 

amount of money was the same, it is possible for it to be done in 

five years, that would be after the enactment of the bill. 

Senator TESTER. I think that could be easily fixed. How about the 

reasonable purchase price? Would you have a problem if that was 

done, if the Tribe were to contract that out through their administrative costs? 

Mr. GIDNER. I don’t think so. We have a problem because we 

have a large backlog of appraisals or we have an appraisal process 

that takes a period of time and we have a certain number of people 

to do it. 

Senator TESTER. So if the Tribe were to get a neutral party and 

have them do the appraisal, the Department of Interior would accept that appraisal? 

Mr. GIDNER. I think we probably would, Senator. 

Senator TESTER. Okay, good. 

The size of the loan, and 380 million bucks is a lot of dough, no 

mistake about it. Are you familiar with Cobell? 

Mr. GIDNER. Yes, sir. 

Senator TESTER. Do you agree with the Chairman’s statement 

that 10 percent of the fractionated land is on Crow? 

Mr. GIDNER. I have no reason to doubt that. I know they have 

a large percentage of fractionated land. 

Senator TESTER. Well, I will just tell you my perspective. And 

you can take this back to whoever you want, but I will just tell you 

my perspective. My perspective is that you have a chairman and 

you have a tribe that wants to fix this problem. I think they have 

put a very common-sense, fair proposal out that is cost-effective. 

122 

You can run the numbers on Cobell and you can run the numbers 

on this. Cobell hasn’t happened and this hasn’t happened either. 

I think if I was the head of your agency, I would be grabbing 

that guy sitting right there right around the shoulders and hugging 

him and saying, you know what, we are going to get this done. I 

really would. Three hundred eighty million is a lot of money, but 

you are talking 1.7 million acres and you can solve a major problem and set an example and get this fractionated land, get us on 

the road to solving this fractionated land problem. I think it is the 

right thing to do, and if I were you guys, I would be aggressively 

pursuing this as an option. I would be telling us that we need to 

have this happen, we need to pass this bill, because this is the 

right thing to do and now. 

I am telling you, I do not see the problems that you put out as 

being—I understand them. I agree with them for the most part and 

I think they could be easily, very easily remedied. But the size and 

the fact that it is a loan program and the fact that we are going 

to solve these problems with this, I just think that it is the right 

thing to do. 

The last thing I would ask you is this. When you head back to 

the Department, if there are further objections to 1080, I would 

like to have your response in writing on those, and to what extent, 

and your suggestions for solving those. I think Senator Baucus and 

myself would love to have those, as sponsors and co-sponsors of the 

bill. 

Thank you. 

The CHAIRMAN. Senator Barrasso. 

Senator BARRASSO. Thank you, Mr. Chairman. 

I think Senator Tester touched on many of the things I was interested in, in terms of the five-year time line and the difficulties 

with an appraisal. But you mentioned something about Government liability. I am an orthopedic surgeon, I know a lot about liability. Could you kind of go into a little bit what you are talking 

about in terms of the Government’s liability here? 

Mr. GIDNER. Certainly. As I understand the mechanism of the 

bill, the Treasury Department would loan money to the Secretary 

of Interior, who would loan it to the Tribe or a corporate entity set 

up by the Tribe. The Tribe would pay that money back, the Secretary would pay the money back to Treasury. 

If the Tribe did not pay the money back to the Secretary of Interior, the Secretary of Interior still must pay back the Secretary of 

Treasury. I am not at all suggesting the Crow Tribe would not pay 

back, but if that did occur, the Secretary of Interior would have a 

liability to the Treasury Department for monies that we would not 

have at that point. 

Senator BARRASSO. So just because it goes through another department is the issue? Because it is the same thing with any loan 

that needs to be paid somewhere. 

Mr. GIDNER. Basically, yes. 

Senator BARRASSO. Thank you. 

No further questions, Mr. Chairman. 

The CHAIRMAN. Mr. Macarro, I want to ask a question about the 

allegations dealing with the Endangered Habitats League. I don’t 

123 

know all the facts surrounding it. What is your response to allegations on that subject? 

Mr. MACARRO. Could you be a little bit more specific about the 

allegations? 

The CHAIRMAN. My understanding is there have been questions 

raised about endangered habitat. Is that correct? 

Mr. MACARRO. I think that allegation refers to a previous transaction, not this one. I am not going to try to make their case for 

them. But we constructed a golf course on some previously acquired 

land that went into trust, it was through administrative process. 

I think they have concerns that despite the representations we are 

going to make here with regard to this piece of land, what is to 

stop us from doing that again. 

All I can say is that they are two different transactions altogether. We are taking some unusual measures with this proposed 

transaction, this proposed bill today, restricting us in agreement 

with the Fish and Wildlife Service to transfer the lands. We are 

stipulating that they will only be used for protection, preservation 

and maintenance of the archeological, cultural and wildlife resources thereon, that is actually quoting from the bill language. 

The CHAIRMAN. I was referring to the Endangered Habitats 

League of Southern California, that had raised questions. But your 

response is that the bill itself has drafted responses to those questions? 

Mr. MACARRO. It does. It should allay those concerns. They have 

never worked with tribes, per se, and I think they have issues with 

self-determination powers that tribes have when they chose to do 

things that they don’t think are in the public interest. 

The CHAIRMAN. I understand. 

Let me thank all of you for being here to testify. Mr. Gidner, 

thank you for coming down. We will be considering these pieces of 

legislation that we have heard today at some future business meeting, we hope soon. I thank all of you for taking the time to come 

before the Committee. 

We will keep the hearing record open for 14 days following today’s hearing, so that additional submission of statements will be 

accepted by our Committee. This hearing is adjourned. 

[Whereupon, at 10:50 a.m., the Committee was adjourned.] 

(125) 

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