79–010

Calendar No. 827

106TH CONGRESS REPORT

2d Session " ! SENATE 106–418

SAND CREEK MASSACRE NATIONAL HISTORIC SITE

ESTABLISHMENT ACT OF 2000

SEPTEMBER 25 (legislative day, SEPTEMBER 22), 2000.—Ordered to be printed

Mr. MURKOWSKI, from the Committee on Energy and Natural

Resources, submitted the following

REPORT

[To accompany S. 2950]

The Committee on Energy and Natural Resources, to which was

referred the bill (S. 2950) to authorize the Secretary of the Interior

to establish the Sand Creek Massacre National Historic Site in the

State of Colorado, having considered the same, reports favorably

thereon with amendments and recommends that the bill, as

amended, do pass.

The amendments are as follows:

1. On page 1, line 9, strike ‘‘Northern and Southern’’.

2. On page 1, lines 9 and 10, strike ‘‘Indians’’ and insert in lieu

thereof ‘‘Indians under the leadership of Chief Black Kettle,’’.

3. On page 2, line 10, strike ‘‘,’’.

4. On page 3, line 22, strike ‘‘for tribes’’ and insert in lieu thereof

‘‘for the tribes and the State’’.

5. On page 4, line 19, strike ‘‘Cheyenne Tribe’’ and insert in lieu

thereof ‘‘Cheyenne and Arapaho Tribes’’.

6. On page 4, line 20, strike subsection ‘‘(B)’’ in its entirety and

redesignate the following subsections accordingly.

7. On page 7, line 20, strike ‘‘with the’’ and insert in lieu thereof

‘‘with and solicit advice and recommendations from the’’.

8. On page 8, strike subsection ‘‘(b)’’ in its entirety and redesignate the remaining subsections accordingly.

9. On page 10, line 14, strike ‘‘Special’’.

10. On page 10, line 15, strike ‘‘special’’ and insert ‘‘reasonable’’.

11. On page 10, line 21, strike ‘‘special’’ and insert ‘‘reasonable’’.

12. On page 11, line 11, strike all of subsection (b) through page

11, line 24, and replace with:
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‘‘(b) CONDITIONS OF ACCESS.—In granting access under

subsection (a), the Secretary shall temporarily close to the

general public one or more specific portions of the site in

order to protect the privacy of tribal members engaging in

a traditional, cultural, or historical observance in those

portions; and any such closure shall be made in a manner

that affects the smallest practicable area for the minimum

period necessary for the purposes described above.’’.

13. On page 12, line 21, strike ‘‘tribes located in the vicinity of

the site.’’ and insert in lieu thereof ‘‘the tribes.’’.

PURPOSE OF THE MEASURE

The purpose of S. 2950 is to authorize the Secretary of the Interior to establish the Sand Creek Massacre National Historic Site in

the State of Colorado.

BACKGROUND AND NEED

On November 29, 1864, a village of about 500 Cheyenne and

Arapaho Indians along Sand Creek in southeastern Colorado was

attacked by approximately 700 volunteer soldiers commanded by

Colonel John M. Chivington. More than 150 Cheyenne and

Arapahos were killed in the attack, mostly women, children, and

the elderly. During that afternoon and the following day, the soldiers followed up the massacre by committing atrocities on the

dead before withdrawing from the field.

The massacre remains a matter of great historical, cultural and

spiritual importance to the Cheyenne and Arapaho Tribes, and is

a pivotal event in the history of relations between the Plains Indians and Euro-American settlers.

The Sand Creek Massacre National Historic Site Study Act (Public Law 105–243) directed the National Park Service, in consultation with the State of Colorado, the Cheyenne and Arapaho Tribes

of Oklahoma, the Northern Cheyenne Tribe, and the Northern

Arapaho Tribe, to complete two tasks. First, the Act directed the

Park Service to ‘‘identify the location and extent of the massacre

area.’’ Second, the Act directed the Park Service to prepare a report

that assessed the national significance of the Sand Creek Massacre

site, the suitability and feasibility of designating it as a unit of the

National Park System, and a range of alternatives for the management, administration, and protection of the area.

The first of these tasks was addressed in a separate report entitled Sand Creek Massacre Project, Volume 1: Site Location Study.

In the Site Location Study, the National Park Service, the State of

Colorado, the Northern Cheyenne Tribe, the Northern Arapaho

Tribe, and the Cheyenne and Arapaho Tribes of Oklahoma agreed

on the location and extent of the massacre. The area lies in Kiowa

County, Colorado. It encircles a running engagement and extends

approximately 51⁄2 miles in length and 2 miles in width. Included

within this boundary are key features of the massacre, including

the Cheyenne and Arapaho village site, the ‘‘sandpits’’ area where

the fiercest fighting took place, the area of Indian flight, and the

point from which Colonel Chivington and his troops launched their

attack upon the Indian encampment.
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The Special Resource Study/Environmental Assessment addresses the national significance of the Sand Creek Massacre site and

the suitability and feasibility of designating it as a unit of the National Park System. The study also identified alternatives for the

management of the site, and the impacts of those alternatives. The

study found that the Sand Creek Massacre site meets all of the criteria used to determine the national significance of a natural, cultural, or recreational resource with the respect to inclusion within

the National Park System. Furthermore, the study found that the

site is both suitable and feasible for inclusion as a unit of the National Park System, and identified a range of alternatives under

which the site could be managed.

S. 2950 authorizes the establishment of the Sand Creek Massacre National Historic Site as a unit of the National Park System,

consisting of approximately 12,480 acres in Kiowa County, Colorado. The measure provides descendants of the massacre and members of specific tribes with special access and use rights for commemorative activities and for the purpose of carrying out traditional, cultural, or historic observances. In addition, the measure

requires that a certain portion of the land within the site be dedicated for the repatriation of Native American human remains and

other items associated with the Sand Creek Massacre.

LEGISLATIVE HISTORY

S. 2950 was introduced by Senator Campbell on July 27, 2000.

The Subcommittee on National Parks, Historic Preservation and

Recreation held a hearing on S. 2950 on September 14, 2000. At

the business meeting on September 20, 2000, the Committee on

Energy and Natural Resources ordered S. 2950 favorably reported,

as amended.

COMMITTEE RECOMMENDATION

The Committee on Energy and Natural Resources, in open business session on September 20, 2000, by a unanimous vote of a

quorum present, recommends that the Senate pass S. 2950, if

amended as described herein.

COMMITTEE AMENDMENTS

During the consideration of S. 2950, the Committee adopted several amendments to make technical and clarifying changes, and

also adopted several amendments making substantive changes to

the bill.

An amendment was adopted clarifying the role of the State of

Colorado and the tribes in developing the park’s management plan

and educational programs. Another amendment was adopted to delete a provision in the bill that would have required the Secretary

of the Interior to permit the continuation of traditional agricultural

and ranching activities on privately owned lands within the boundaries of the site. Since the Secretary does not have the authority

to prohibit such activities on privately owned land, the provision

was unnecessary.

Finally, an amendment was adopted deleting language in the bill

that would have required the Secretary to consult only with tribes

located in the vicinity of the site when addressing the access needs
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and rights of descendants regarding traditional, cultural, or historical observances. Since there are no tribes located in the vicinity

of the site, the language was corrected to simply refer to the tribes

that are defined in the bill.

SECTION-BY-SECTION ANALYSIS

Section 1 designates the bill’s short title.

Section 2(a) contains Congressional findings.

Subsection (b) defines the purposes of the legislation, which are:

(1) to recognize the importance of the Sand Creek Massacre; (2) to

authorize the establishment of the Sand Creek Massacre National

Historic Site; and (3) to provide opportunities for tribes to be involved in the formulation of general management plans and educational programs for the site.

Section 3 provides definitions for key terms used in the legislation, including the term ‘‘tribe’’ which means the specific tribes connected with the Sand Creek Massacre site. The term ‘‘descendant’’

means a member of a tribe, an ancestor of whom was injured or

killed in, or otherwise affected by, the Sand Creek Massacre.

Section 4(a) authorizes the Secretary of the Interior (Secretary)

to establish the Sand Creek Massacre National Historic Site (site)

when he has determined that lands containing a sufficient quantity

of resources to provide for the preservation, memorialization, commemoration, and interpretation of the Sand Creek Massacre have

been acquired by the National Park Service.

Subsection (b) describes that the site will consist of approximately 12,480 acres in Kiowa County, Colorado as generally depicted on the specified map reference.

Section 5(a) requires the site to be managed in accordance with

the laws applicable to the National Park System.

Subsection (b) requires the Secretary to protect and preserve the

site’s resources, interpret and provide for public understanding of

its natural and cultural resources values, and to memorialize, commemorate, and provide information to visitors to enhance cultural

understanding about the site and assist in minimizing the chances

of similar incidents in the future.

Subsection (c) requires the Secretary to consult with and solicit

advice and recommendations from the tribes and the State in preparing the site’s management plan and educational material, and

authorizes the Secretary to enter into cooperative agreements.

Section 6(a) authorizes the acquisition of land or interests in land

within the boundaries of the site by purchase from willing sellers,

donation, or exchange. Lands owned by the State may only be acquired through donation.

Subsection (b) requires the Secretary to give priority to acquisition of the land that includes the existing Sand Creek Battleground

marker.

Subsection (c) requires the Secretary to use cost-effective alternatives to fee ownership of the land where practical, including conservation easements and other means of acquisition. A support facility for the site that is not within the designated boundaries may

be located in Kiowa County, Colorado, subject to an agreement between the County and the Secretary.
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Section 7 requires a management plan for the site to be prepared

within five years after funds are made available to carry out the

legislation.

Section 8 provides descendants with reasonable rights of access

and use of the site, and requires that commemorative activities of

descendants be considered in park planning and operations.

Section 9(a) requires the Secretary to grant any descendant or

member of a tribe reasonable access to the site for the purpose of

carrying out a traditional, cultural, or historical observance. No

fees may be charged for such access.

Subsection (b) authorizes the Secretary to temporarily close specific portions of the site to the general public in order to protect the

privacy of the traditional, cultural, or historical observances under

subsection (a). The closures must be made in a manner that affects

the smallest practicable area for the minimum period necessary.

Subsection (c) requires the Secretary to dedicate a portion of the

site for the repatriation of human remains and other items associated with the Sand Creek Massacre.

Subsection (d) requires the Secretary to consult with descendants

and tribes in exercising any authority under this section.

Section 10 authorizes the appropriation of such sums as are necessary to carry out the legislation.

COST AND BUDGETARY CONSIDERATIONS

The following estimate of the cost of this measure has been provided by the Congressional Budget Office:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, September 22, 2000.

Hon. FRANK H. MURKOWSKI,

Chairman, Committee On Energy and Natural Resources,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 2950, the Sand Creek Massacre National Historic Site Establishment Act of 2000.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Deborah Reis.

Sincerely,

BARRY B. ANDERSON

(For Dan L. Crippen, Director).

Enclosure.

S. 2950—Sand Creek Massacre National Historic Site Establishment Act of 2000

S. 2950 would authorize the Secretary of the Interior to establish

the Sand Creek Massacre National Historic Site in Colorado once

the National Park Service (NPS) has acquired sufficient resources

at the site to provide for its preservation and interpretation. The

NPS could acquire lands and other property interests within the

12,480-acre site by donation, purchase, or exchange. The bill would

require the NPS to dedicate a portion of the site to the preservation

of human remains, funerary objects, and other items that might be

found on or returned to the site. Within five years of receiving

funding for this purpose, the agency would prepare a general man-
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agement plan for the site. Finally, the bill would authorize the appropriation of whatever amounts are necessary for these activities.

CBO estimates that the NPS would spend $14.5 million over the

next five to seven years to implement S. 2950, including $2 million

to acquire land for the new historic site, $12 million to construct

visitor and administrative facilities, and $0.5 million to prepare a

management plan. Once sufficient land has been acquired to establish the site, the agency would spend about $1.3 million a year to

operate and maintain it, including making payments in lieu of

taxes to local governments. CBO estimates that providing space

within the site for human remains and tribal objects would not add

significantly to start-up or annual operating costs. These estimates

are based on information provided by the NPS and assume appropriation of the necessary amounts.

The bill would not affect direct spending or receipts; therefore,

pay-as-you-go procedures would not apply. S. 2950 contains no

intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. State and tribal governments might

incur some costs if they choose to participate in the activities authorized by this bill, but these costs would be voluntary.

The CBO staff contact for this estimate is Deborah Reis, who can

be reached at 226–2860. The estimate was approved by Peter H.

Fontaine, Deputy Assistant Director for Budget Analysis.

REGULATORY IMPACT EVALUATION

In compliance with paragraph 11(b) of rule XXVI of the Standing

Rules of the Senate, the Committee makes the following evaluation

of the regulatory impact which would be incurred in carrying out

S. 2950. The bill is not a regulatory measure in the sense of imposing Government-established standards or significant economic responsibilities on private individuals and businesses.

No personal information would be collected in administering the

program. Therefore, there would be no impact on personal privacy.

Little, if any, additional paperwork would result from the enactment of S. 2950, as ordered reported.

EXECUTIVE COMMUNICATIONS

On September 15, 2000, the Committee on Energy and Natural

Resources requested legislative reports from the Department of the

Interior and the Office of Management and Budget setting forth

Executive agency recommendations of S. 2950. These reports had

not been received at the time the report on S. 2950 was filed. When

the reports become available, the Chairman will request that they

be printed in the Congressional Record for the advice of the Senate.

The testimony provided by the national park Service at the Subcommittee hearing follows:

STATEMENT OF DONALD J. HELLMANN, DEPUTY ASSISTANT DIRECTOR, LEGISLATIVE AND CONGRESSIONAL AFFAIRS, NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE INTERIOR

Mr. Chairman and members of the subcommittee, thank

you for the opportunity to appear before you to present the

position of the Department of the Interior on S. 2950, a bill
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to establish the Sand Creek Massacre National Historic

Site as a unit of the National Park System.

The Department strongly supports protection of this site

through S. 2950 with the amendments outlined in this testimony. We appreciate the continued interest and support

of Senator Campbell, and look forward to working with

him and the subcommittee to protect this site.

Since the day it happened, the Sand Creek Massacre has

been regarded as one of the most emotionally charged and

controversial events in American history. On November 29,

1864, Col. John M. Chivington, leading about 700 soldiers

of the First and Third Colorado Volunteers, attacked a village of about 500 Cheyenne and Arapaho people. These

people were under the overall leadership of Black Kettle,

and had camped on Sand Creek at the direction of Major

Scott Anthony, who commanded Fort Lyon, about 40 miles

to the south. By day’s end, the soldiers had killed at least

150 people, including women and children.

The massacre resulted in almost instant controversy,

which ultimately led to three federal investigations, all of

which condemned Chivington’s actions. By the 1865 Treaty

of Little Arkansas with the Cheyenne and Arapaho, victims of Sand Creek received minor compensation for their

suffering and loss of property. While some efforts were

made to understand the massacre, place blame on the responsible parties, and compensate the tribes, little was actually done.

Many people, including Gen. William Tecumseh Sherman, visited the site and collected artifacts of all kinds.

The land was used for large-scale cattle operations, and

eventually small private landowners farmed and grazed

the property. As time passed, evidence of the massacre

slowly disappeared. Although the event continued to be remembered, mostly by the tribes and historians, the only

commemoration of the massacre was a simple granite

marker placed near the site by the local community in

1950.

In 1998, P.L. 105–243 authorized the Secretary to identify the location and extent of the Sand Creek Massacre,

determine the suitability and feasibility of designating the

site as a unit of the National Park System, and present

those findings in 18 months.

Starting in 1998 a variety of techniques and methods

were used to locate the site of the Sand Creek Massacre.

These included a thorough research of written records,

archeology, geomorphology, aerial photographic analysis,

traditional tribal methods and recording the oral traditions

of the Cheyenne and Arapaho Tribes of Oklahoma, the

Northern Cheyenne and the Northern Arapaho.

Once the location of the site was identified, the next task

was to determine national significance and suitability and

feasibility of the site as a unit of the system. To be eligible

for consideration, National Park Service Management Policies state that an area must possess nationally significant

natural, cultural or recreational resources; be a suitable
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and feasible addition to the system; and require direct

NPS management instead of protection by some other governmental agency or private sector. The Special Resource

Study for the Sand Creek Massacre site, completed in July

2000, concluded that the area is nationally significant.

The Sand Creek Massacre site possesses exceptional

value in illustrating and interpreting the history of U.S.-

Indian relations in the American West. The massacre at

Sand Creek of nearly 150 Cheyenne and Arapaho people

who believed they were under the protection of the U.S.

Government was a major turning point in the relationship

between whites and Indians. Virtually all Indian and army

conflicts that ensued were rooted, at least partly, in the

massacre.

A National Park System unit at Sand Creek would provide an opportunity for Americans to better understand

the significance of the massacre, the chain of events that

led to it, the relationship between Indians and whites during the mid-to late-19th Century, the devastating effects of

the massacre upon the Cheyenne and Arapaho peoples,

and its far reaching repercussions, many of which linger

today. The site also retains a high degree of physical integrity, and its isolated setting will give visitors an opportunity to contemplate the complexities of the human tragedy that unfolded there.

The Special Resource Study also concluded that Sand

Creek is both suitable and feasible as a unit of the National Park System. The site is suitable because it represents a cultural theme that is not already adequately

represented in the system. As described on the map referenced in S. 2950, the proposed national historic site is

also a feasible addition in that the area taken as a whole

is of sufficient size and configuration to ensure long-term

resource protection and accommodate public use. As outlined in the Special Resources Study, acquisition of up to

12,480 acres of land and development of the site will cost

approximately $13,600,000. The preliminary annual cost of

administering the site is approximately $1,260,000.

S. 2950 would authorize the establishment of Sand

Creek National Historic Site. The unit would be established once the Secretary of the Interior determines that

sufficient lands have been acquired to provide for the protection and commemoration of the Sand Creek Massacre.

Lands are identified on a map date July 1, 2000 and would

be acquired through donation, purchase from willing sellers or exchange. Priority for acquisition is given to the site

containing the historical marker. Keys to managing the

site would be protection of the natural and cultural features that are critical to telling the story of Sand Creek;

and cooperation and consultation with the tribes in the development of management plans and educational programs.

S. 2950 calls for the Secretary to consider locating support facilities in Kiowa County. The legislation also contains important provisions that would provide for special
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needs of the descendants and other members of the identified tribes to access and use federally acquired land for the

purpose of traditional, cultural and historical observances,

and consultation with respect to commemorative activities.

S. 2950 also calls for the dedication of a portion of the site

for the purposes of repatriation of human remains.

One of the major strengths of this project has been the

extensive consultation and inclusion of the interested individuals and organizations, especially tribes, landowners,

the State of Colorado and Kiowa County. A critical result

of this effort was the agreement that protection of the site

is essential. It is essential in part so that we may all learn

how to deepen our understanding of other cultures.

We believe some minor amendments are needed in Sections 8 and 9 that would clarify the intent of the legislation. These sections address the special needs of the descendents and tribal members of those affected by the

Sand Creek Massacre. We believe that the two sections

should be made consistent with recent Congressional direction regarding reasonable accommodation of the religious

and cultural needs of American Indians in units of the National Park System. We would be pleased to provide draft

language to that effect.

We also recommended deleting on page 12, line 21, ‘‘located in the vicinity of the site’’, as there are no tribes located in the vicinity of the site.

We look forward to working with the subcommittee and

Senator Campbell to ensure that the final bill language

protects this important site and the story it has to tell.

That concludes my remarks. I would be happy to answer

any questions you may have.

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing

Rules of the Senate, the Committee notes that no changes in existing law are made by the bill S. 2950, as ordered reported.

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