U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

53-253 PDF 2009

H.R. 3697 AND H.R. 3742, TO AMEND 

THE ACT OF JUNE 18, 1934, TO REAFFIRM THE AUTHORITY OF THE 

SECRETARY OF THE INTERIOR TO 

TAKE LAND INTO TRUST FOR 

INDIAN TRIBES. 

LEGISLATIVE HEARING 

BEFORE THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

Wednesday, November 4, 2009 

Serial No. 111-41 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 

or 

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

(II) 

COMMITTEE ON NATURAL RESOURCES 

NICK J. RAHALL, II, West Virginia, Chairman 

DOC HASTINGS, Washington, Ranking Republican Member 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Frank Pallone, Jr., New Jersey 

Grace F. Napolitano, California 

Rush D. Holt, New Jersey 

Rau ́l M. Grijalva, Arizona 

Madeleine Z. Bordallo, Guam 

Jim Costa, California 

Dan Boren, Oklahoma 

Gregorio Sablan, Northern Marianas 

Martin T. Heinrich, New Mexico 

George Miller, California 

Edward J. Markey, Massachusetts 

Peter A. DeFazio, Oregon 

Maurice D. Hinchey, New York 

Donna M. Christensen, Virgin Islands 

Diana DeGette, Colorado 

Ron Kind, Wisconsin 

Lois Capps, California 

Jay Inslee, Washington 

Joe Baca, California 

Stephanie Herseth Sandlin, South Dakota 

John P. Sarbanes, Maryland 

Carol Shea-Porter, New Hampshire 

Niki Tsongas, Massachusetts 

Frank Kratovil, Jr., Maryland 

Pedro R. Pierluisi, Puerto Rico 

Don Young, Alaska 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Jeff Flake, Arizona 

Henry E. Brown, Jr., South Carolina 

Cathy McMorris Rodgers, Washington 

Louie Gohmert, Texas 

Rob Bishop, Utah 

Bill Shuster, Pennsylvania 

Doug Lamborn, Colorado 

Adrian Smith, Nebraska 

Robert J. Wittman, Virginia 

Paul C. Broun, Georgia 

John Fleming, Louisiana 

Mike Coffman, Colorado 

Jason Chaffetz, Utah 

Cynthia M. Lummis, Wyoming 

Tom McClintock, California 

Bill Cassidy, Louisiana 

James H. Zoia, Chief of Staff 

Rick Healy, Chief Counsel 

Todd Young, Republican Chief of Staff 

Lisa Pittman, Republican Chief Counsel 

(III) 

CONTENTS 

Page 

Hearing held on Wednesday, November 4, 2009 .................................................. 1 

Statement of Members: 

Boren, Hon. Dan, a Representative in Congress from the State of 

Oklahoma ...................................................................................................... 13 

Hastings, Hon. Doc, a Representative in Congress from the State of 

Washington .................................................................................................... 3 

Herseth Sandlin, Hon. Stephanie, a Representative in Congress from 

the State of South Dakota ............................................................................ 14 

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

Michigan ........................................................................................................ 4 

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

of West Virginia ............................................................................................ 1 

Prepared statement of ............................................................................... 2 

Statement of Witnesses: 

Arcuri, Hon. Michael, a Representative in Congress from the State of 

New York ....................................................................................................... 6 

Prepared statement of ............................................................................... 8 

Blumenthal, Hon. Richard, Attorney General, State of Connecticut, 

Hartford, Connecticut ................................................................................... 47 

Prepared statement of ............................................................................... 49 

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

Oklahoma ...................................................................................................... 9 

Prepared statement of ............................................................................... 11 

Iyall, Hon. William, Chairman, Cowlitz Indian Tribe, Longview, 

Washington .................................................................................................... 27 

Prepared statement of ............................................................................... 28 

Background/History of Cowlitz Tribe ...................................................... 31 

Kanji, Riyaz, Kanji & Katzen, PLLC, on behalf of The Grand Traverse 

Band of Ottawa and Chippewa Indians, Ann Arbor, Michigan ................ 61 

Prepared statement of ............................................................................... 63 

Klineburger, Hon. Sandra, Chairwoman, Stillaguamish Tribe of Indians, 

Arlington, Washington ................................................................................. 36 

Prepared statement of ............................................................................... 38 

Native American Treaty between the United States and the 

Dwa ́mish, Suqua ́mish, et al. ................................................................. 42 

Laverdure, Donald, Deputy Assistant Secretary—Indian Affairs, U.S. 

Department of the Interior, Washington, D.C. ........................................... 15 

Prepared statement of ............................................................................... 21 

Mabee, Hon. Janice, Chairman, Sauk-Suiattle Indian Tribe, Darrington, 

Washington .................................................................................................... 33 

Prepared statement of ............................................................................... 35 

Woodside, Steven M., Sonoma County Counsel, on behalf of the California 

State Association of Counties, Sacramento, California .............................. 53 

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

CSAC Congressional Position Paper on Indian Affairs .......................... 59 

(1) 

LEGISLATIVE HEARING ON H.R. 3742, TO 

AMEND THE ACT OF JUNE 18, 1934, TO 

REAFFIRM THE AUTHORITY OF THE 

SECRETARY OF THE INTERIOR TO TAKE 

LAND INTO TRUST FOR INDIAN TRIBES; 

AND H.R. 3697, TO AMEND THE ACT OF 

JUNE 18, 1934, TO REAFFIRM THE AUTHORITY OF THE SECRETARY OF THE INTERIOR 

TO TAKE LAND INTO TRUST FOR INDIAN 

TRIBES. 

Wednesday, November 4, 2009 

U.S. House of Representatives 

Committee on Natural Resources 

Washington, D.C. 

The Committee met, pursuant to call, at 10:00 a.m., in Room 

1324, Longworth House Office Building, Hon. Nick J. Rahall, II, 

[Chairman of the Committee] presiding. 

Present: Representatives Rahall, Hastings, Kildee, Boren, 

Sablan, Heinrich, Kind, Inslee, Herseth Sandlin, Young, Gallegly, 

Smith and Lummis. 

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

REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST 

VIRGINIA 

The CHAIRMAN. The Committee on Natural Resources will come 

to order, please. 

Today the Committee meets on two bills, H.R. 3742 and 

H.R. 3697, each introduced by Co-Chairmen of the House Native 

American Caucus. H.R. 3742 was introduced by my good friend 

and fellow classmate, a Representative from Michigan, Mr. Dale 

Kildee, whose support for Indian tribes and tribal sovereignty is 

second to none in the Congress. H.R. 3697 was introduced by our 

colleague, Tom Cole, who has also made a mark for himself in his 

support of Native American issues, he being a Native American 

himself. 

Earlier this year, the Supreme Court issued a decision in 

Carcieri v. Salazar that prohibits the Secretary of the Interior from 

taking land into trust for tribes that were not ‘‘under Federal jurisdiction’’ in 1934, 75 years ago, a moment frozen in time. In my 

view, this decision strikes at the heart of tribal sovereignty, the 

ability to provide governmental services for tribal members and the 

exercise of tribal jurisdiction over its land. 

A land base is necessary for all governments, including Indian 

tribes. But for Indian tribes, the land must be placed into trust in 

order for the tribe to realize the fullest benefits of the land. As a 

result of the Supreme Court decision, however, a dark cloud hangs 

over Indian Country. It is a cloud that may cast a pallor over the 

2 

land that is used for housing, protection of sacred sites, to build 

schools, to build health clinics, to provide for economic development 

and for many other purposes. 

Such confusion denies Indian tribes and tribal members their 

rights guaranteed by treaties, statutes and executive orders. Because of this decision, many tribes may face unnecessary litigation 

and other delays that tribes cannot afford. I would also observe 

that, although the Court did not define ‘‘under Federal jurisdiction,’’ there have been attempts by some to equate that phrase with 

formal Federal recognition. 

Let me make this clear. Congress’ constitutional authority over 

Indians is not conditioned on formal Federal recognition. Whether 

or not Congress decides to exercise our jurisdiction over an Indian 

tribe does not mean that we do not have the power to do so. If the 

group is an Indian tribe, it is under our authority, as vested by the 

Constitution. As such, Congress possesses jurisdiction over any 

tribes that exist, whether formally recognized or not by the Federal 

government. Attempts to equate the two concepts are clearly an attack on Congress’ plenary authority over Indians. 

I look forward to all of our testimony today and especially the 

Administration’s views on these bills and about the actions it has 

taken to ensure that the land-into-trust process continues in a 

timely fashion. 

I will now recognize the Ranking Minority Member, the 

gentleman from Washington, Mr. Hastings. 

[The prepared statement of Chairman Rahall follows:] 

Statement of The Honorable Nick J. Rahall, Ii, Chairman, 

Committee on Natural Resources 

Today, the Committee meets on two bills, H.R. 3742, introduced by my friend, 

Mr. Kildee, the co-Chairman of the House Native American Caucus and a long time 

champion of tribal sovereignty, and H.R. 3697, introduced by Mr. Cole. Both bills 

would amend the Indian Reorganization Act to reaffirm the Secretary of the Interior’s authority to take land into trust for Indians. 

Earlier this year, the Supreme Court issued a decision in Carcieri v. Salazar that 

prohibits the Secretary of the Interior from taking land into trust for tribes that 

were not ‘‘under Federal jurisdiction’’ in 1934. 

Although the Court did not define ‘‘under Federal jurisdiction,’’ there have been 

attempts by some to equate that phrase with Federal recognition. Let me make this 

clear, all Indian tribes regardless of when they were Federally recognized in the 

sense that they are receiving Federal benefits are and always have been under Federal jurisdiction. Any statements to the contrary are clearly an attack on Congress’ 

plenary authority over Indians. Our plenary authority over Indians is not conditioned on formal Federal recognition. 

The issue before us today is about tribal sovereignty, the ability to provide governmental services for tribal members, and the exercise of tribal jurisdiction over its 

land. A land base is necessary for all governments, including Indian tribes. But for 

Indian tribes, the land must be placed into trust in order for the tribe to realize 

the fullest benefits of the land. 

Unfortunately, some are attempting to paint this issue as being about gaming and 

are trying to tie in amendments to the Indian Gaming Regulatory Act. Yes, some 

tribes use trust land for gaming but most often, the land is used for housing, protection of sacred sites, to build schools and clinics, to provide for economic development, and for many other purposes. We must be careful to not confuse the two 

issues. 

The attempts by opponents to confuse the issues is denying Indian tribes and tribal members their rights guaranteed by treaties, statutes, and executive orders. Because of this decision, many tribes will face unnecessary litigation and other delays 

that tribes cannot afford. The Committee must act soon to avoid further harm to 

tribes. 

3 

I look forward to hearing the Administration’s views on these bills and about the 

actions it is taking to ensure that the land into trust process continues in a timely 

fashion. 

STATEMENT OF THE HONORABLE DOC HASTINGS, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

WASHINGTON 

Mr. HASTINGS. Thank you, Mr. Chairman, and thank you, Mr. 

Chairman, for holding this hearing. 

I believe also it is important for Congress to address the postCarcieri situation on both lands previously taken into trust and for 

pending and future land-in-trust applications. Congress must work 

deliberately, and it is our responsibility to consider the views of the 

many different interests that are affected. 

Without question, this Committee has a special responsibility to 

the tribes of the United States. Yet elected representatives also 

have a responsibility to the communities and states that they are 

elected to represent. It would be neither responsible nor constructive for this Committee or the Congress to attempt to push through 

legislation like the bills before us today without considering the 

views of the states, counties and cities that we represent and, more 

importantly, the states, counties and cities who advanced this case 

all the way to the United States Supreme Court where their legal 

arguments prevailed. 

The Attorneys General ‘from 27 states are on record as either 

friends of the court in the Carcieri case or through a letter sent to 

this Committee as having concerns with the land-in-trust process 

and wanting to be engaged in the deliberations on Carcieri-related 

legislation. 

If they were committed enough, those that I have mentioned before, enough to pursue this to the Supreme Court, then such interests are committed enough to come to this Congress and ask their 

Representatives and Senators from these 27 states to listen to their 

concerns. It ought to be in the interest of all those committed to 

addressing the post-Carcieri situation to be involving them in this 

conversation. That is why it was important that Attorney General 

Blumenthal of Connecticut and Mr. Woodside, representing 

Sonoma County, California, appear as witnesses at today’s hearing. 

I do recognize that many in this country and in this hearing 

room disagree with the Supreme Court’s decision and the prevailing legal position of the state and local governments. But it is 

unreasonable to expect Congress to simply ignore such concerns 

and fast-track this legislation without considering the effects of 

these bills. 

Let us be clear about what this legislation will do. According to 

their long titles, the bills are meant to, and I quote, ‘‘reaffirm the 

authority of the Secretary of the Interior to take land into trust for 

Indian tribes.’’ In fact, the effect of these bills goes much farther 

than that. This legislation would very bluntly overturn the Supreme Court decision from February. Yet it would also delegate to 

the Secretary of the Interior authorities expressly granted to Congress in Article 1, Section 8 of the Constitution. 

The effect of this legislation would be to give the Secretary nearly unconditional authority not to just take lands into trust but also 

4 

unlimited authority to recognize new Indian tribes. With such a 

complete transfer of power and authority from Congress to the Secretary, just one individual in the Federal government would have 

the ability to recognize new tribes, take land into trust and approve 

gaming compacts to allow new casinos on these lands. This may 

strike many on both sides of the aisle as going too far and greatly 

overstepping a direct answer to the Carcieri decision. 

In addition, I will note that this bill for the first time ever would 

endow the Secretary with new authority to acquire lands in Alaska 

in trust for native villages. This too exceeds the bounds of a 

Carcieri fix, and I would certainly hope the views of the State of 

Alaska will be considered by this Committee as it further considers 

this legislation. 

As I stated at the outset of my remarks, I do fully support the 

need for action to address the post-Carcieri situation confronting 

tribes and taking lands into trust. The question that confronts us 

in Congress is how best to do so. 

In an effort to gather more information about the ramifications 

of the Carcieri decision and the views of Secretary Salazar and the 

Administration on the possible options that this Congress might 

have in addressing this issue, I sent a letter to Secretary Salazar 

last Friday with a number of questions. It is my hope that by 

giving advance notice of these questions to the Secretary that the 

Department’s witnesses would have come prepared with answers so 

that we may have a more productive hearing. 

I request, Mr. Chairman, that a copy of my letter be made part 

of the hearing. With that, Mr. Chairman, thank you very much for 

again holding this hearing. This is a very important issue that 

needs to be discussed and understood thoroughly. And with that, 

I yield back my time and look forward to the testimony of the witnesses. 

The CHAIRMAN. The Chair thanks the gentleman from Washington for his comments and wishes to note at this point that I will 

have to depart very shortly in order to attend a meeting with the 

Speaker of the House and tribal chiefs that are in town from across 

our country and will be turning the chair over to the Co-Chair of 

the Native American Caucus, who I am going to recognize at this 

point, the gentleman from Michigan, Mr. Kildee, whom I have already recognized and thank for his dedication to Indian Country in 

my opening remarks. Mr. Kildee. 

STATEMENT OF THE HONORABLE DALE KILDEE, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

MICHIGAN 

Mr. KILDEE. Thank you, Mr. Chairman. First of all, I am very 

happy that Congressman Tom Cole and I are the Co-Chairs of the 

Native American Caucus. We were very anxious to get a bill before 

this Committee so we could have this hearing, and Tom and I have 

worked together very closely. We are not only colleagues here on 

the Committee but good friends. We are glad to have you supporting so strongly the rights of the sovereignty of the Indians. 

We do have in the Constitution our basis for our relationship to 

the sovereign nations. Now like in many cases, we give to someone 

in the executive branch the power to execute these laws, and we 

5 

laid that out, and that is why we are here this morning, to make 

sure that there is no question about the power of the Secretary to 

do that which he or she has done for many years. But it is a Constitutional basis, and like in many areas, we give someone in the 

executive branch the power to execute that. 

First of all, I introduced this legislation because I was extremely 

disappointed by the Supreme Court’s decision in Carcieri v. Salazar. The Supreme Court ruled that the Secretary of the Interior 

could not accept lands into trust for Indian tribes recognized after 

the Indian Reorganization Act of 1934. The Supreme Court overturned a lower court’s decision and ruled that the phrase ‘‘now 

under the Federal jurisdiction’’ only applied to tribes that were recognized at the time of the IRA’s enactment on June 18, 1934. 

The Court’s literal interpretation of the Indian Reorganization 

Act ignores the Congressional intent of the original legislation and 

reverses 75 years of Secretarial authority. Therefore, I felt compelled and obligated to introduce legislation to fix this problem. 

H.R. 3742 will amend the IRA of 1934 by reaffirming the Secretary 

of the Interior’s authority to take land into trust for Federally recognized Indian tribes. This bill will clarify the law and remove the 

uncertainty caused by the Supreme Court’s decision. 

This decision affects many tribes across the nation, particularly 

those Indian tribes who have gained Federal recognition through 

the administrative process at the Department of the Interior and 

those tribes whose recognition was attained or reaffirmed after 

1934, eight of which are in my home State of Michigan. 

Not only could this decision affect the pending and future landinto-trust applications, but it could also open the floodgates to numerous new legal charges. I am pleased to report that H.R. 3742 

enjoys bipartisan support in Congress with 24 co-sponsors from all 

parts of the country. H.R. 3742 also has wide support throughout 

Indian Country. 

The bill was written in close consultation with tribal organizations and the Department of the Interior, and is supported by the 

National Congress of American Indians and the United South and 

Eastern Tribes Incorporated. 

I would like to ask unanimous consent to enter into the record 

a resolution strongly supporting passage of H.R. 3742, which was 

passed on Thursday, October 29, 2009, at the 40th Anniversary Annual Meeting of the United South and Eastern Tribes. I also ask 

consent to enter into the record a letter from the Porch Creek Band 

of Indians supporting passage of this bill. 

In addition, I would like to enter into the record a letter from 

Secretary Salazar specifically and totally endorsing this bill as a 

necessary tool for him to carry out those obligations which he has. 

And I yield back the balance of my time. 

The CHAIRMAN. Without objection, entered into the record. The 

gentleman from CNMI, Mr. Sablan, do you wish to make any opening statement? 

Mr. SABLAN. No, I do not. Thank you. 

The CHAIRMAN. OK. The Chair will introduce our first panel, 

composed of our colleagues, two of our colleagues. The first is The 

Honorable Michael Arcuri from the 24th District in New York, and 

the second gentleman I have already introduced in my opening 

6 

comments when he was not here, the gentleman from Oklahoma, 

Mr. Cole, Co-Chair of the Native American Caucus, from the 4th 

District of Oklahoma. 

Mike, Tom, we welcome you to the Committee. We do have your 

prepared testimony. It will be made a part of the record as actually 

read, and you may proceed as you desire. Mike, do you want to go 

first? 

STATEMENT OF THE HONORABLE MICHAEL ARCURI, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW 

YORK 

Mr. ARCURI. Yes. Thank you, Mr. Chairman. 

Chairman Rahall, Ranking Member Hastings, distinguished 

members of the Committee, thank you very much for giving me the 

opportunity to speak here today. 

The subject of today’s hearing, Indian land trusts, is a paramount issue in my district. I represent an area of central New York 

that I always say is blessed with not one land claim controversy 

but two, the Oneida and Cayuga tribes of the Iroquois Confederacy. 

I live in Oneida County, the home of the great Oneida Indian 

Nation. The Oneidas and the United States have been friends for 

as long as we have been a nation. During the revolution, they chose 

to split with their Iroquois brothers and support the American 

cause over the British. They shed their blood alongside their American allies all throughout the colonies. One such battle right in 

Oneida County was the Battle of Oriskany, one of the bloodiest of 

the revolution. 

The years after the revolution were not easy on the Oneidas. 

However, their strong will and determination enabled them to persevere. Today the Oneidas have almost singlehandedly transformed 

parts of my county from rural farm land to a thriving, nationally 

renowned entertainment hub known as the Turning Stone Casino 

and Resort. The establishment has provided much needed jobs for 

nearly 5,000 individuals who were in need of work due to a downturn in our local economy. 

For these and many other reasons, it truly pains me to see tribes 

like the Oneida Nation and Cayuga in New York State and our 

local governments unable to resolve land and tax issues which have 

remained unresolved for over 30 years. I am here today to ask this 

Committee to address the inconsistencies which exist with the 

land-into-trust process. The issue has alienated family members, 

separated friends, put neighbors at odds and, worst of all, divided 

our community. 

Now, at first appearance, this may seem like an easy issue to resolve, but please understand this is not. Issues such as adverse 

taking of land into trust, lack of recognized limits on the amount 

of land taken into trust, collection of local and state sales tax, 

which puts local merchants at a disadvantage, loss of local school 

district property taxes, maintenance of local roads and bridges, 

checker-boarding of trust parcels, state and local regulatory enforcement, and the list goes on. 

The Federal trust process is laid out in Title 25 Part 151 of the 

Code of Federal Regulations, allows land to be taken into trust status for a tribe under three scenarios, including when the Secretary 

7 

determines that the acquisition of land is necessary to facilitate 

tribal self-determination, economic development and Indian housing. 

There is no question in my mind the tribes need and are entitled 

to a fair and reasonable amount of sovereign land on which to conduct their affairs. More importantly, it is not only their right. It is 

important and some might say critical to their heritage. 

However, the current process does not adequately balance tribal 

self-determination with the potential impact on local communities. 

The regulations require the Secretary to consider among other 

things the need of the tribe for additional land, the impact on state 

and its political subdivisions resulting from the removal of the land 

from the tax rolls and jurisdictional problems and potential conflicts of land use which may arise. 

In addition, the National Environmental Policy Act requires Interior to prepare an environmental impact statement in connection 

with any land-into-trust application. But Interior only evaluates 

the environmental impact associated with the Secretary taking title 

to the land, not the potential consequences of that action. In our 

case, the local municipal governments enter the school districts. 

The Carcieri case grew out of just such an unanswered question 

when the town of Charleston in the State of Rhode Island sought 

to require the Narragansett Tribe to obtain building permits for approval for a sewage system. When Interior maintains that future 

development, municipal services agreements and tax enforcement 

over transactions involving non-Indians are all issues ancillary to 

the trust decision, they remain serious issues that are unresolved 

by current Federal trust process. 

I fully understand that these issues raise very serious and wideranging questions that are not easily resolved. However, government-to-government relations between the United States and sovereign Native American tribes necessitate that state and local governments also receive the assistance of the Federal government for 

the protection of certain of their regulatory interests. 

But this creates a scenario very close to a conflict of interest for 

the executive branch of the Federal government that must also satisfy a fiduciary duty to the tribes. This paradox is inherent in the 

Federal trust process as it currently exists, and the result is a process that simply is incapable of adequately addressing these issues. 

The Federal government cannot continue to simply throw up its 

hands and insist that the tribes and local governments resolve 

these difficult and complex issues by themselves. As a member of 

the first negotiating committee 12 years ago, I can tell you that we 

have tried. I would submit that it is imperative that the Interior 

and the BIA become engaged in dialogue or at least a cooperating 

partner in helping local communities and parties resolve and address the differences on these issues. Otherwise, issues like these 

will continue to tear communities like mine apart not only in New 

York and Oneida, Madison, Seneca and Cayuga counties in my 

state but across the country. 

I am encouraged that the Committee is holding this hearing 

today to begin the discussion of whether and how to amend the 

Indian Reorganization Act. I respectfully submit that this discussion should be one that assesses whether the current process is 

8 

still striking the correct balance in order to facilitate tribal self-determination, economic development and Indian housing, and how 

the present policy affects densely settled and developed regions, 

such as areas like upstate New York. 

Again, I thank you for the opportunity to address this Committee, and I yield back the balance of my time. 

[The prepared statement of Mr. Arcuri follows:] 

Statement of The Honorable Michael A. Arcuri, a Representative in 

Congress from the State of New York 

Thank you for the opportunity to appear before the Committee today. The subject 

of today’s hearing, Indian land trusts, is a paramount issue in my district. I represent an area of Central New York that I always say is blessed with not one Land 

Claim Controversy but two, The Oneida and Cayuga tribes of the Iroquois Confederacy. I live in Oneida County the home of the Great Oneida Indian Nation. The 

Oneidas and the United States have been friends for as long as we have been a Nation. During the Revolution they chose to split with their Iroquois brothers and support the American cause over the British. They shed their blood along side their 

American allies all throughout the Colonies. One such battle, right in Oneida County, was the battle of Oriskany, one of bloodiest of the Revolution. The years after 

the Revolution were not easy for the Oneidas, however there strong will and determination enabled them to persevere. 

Today the Oneidas have almost singlehandedly transformed parts of my county 

from rural farm land to a thriving nationally-renowned entertainment hub known 

as The Turning Stone Casino and Resort. The establishment has provided much 

needed jobs for nearly 5,000 people—individuals who were in need of work due to 

a downturn in our local economy—and has attracted visitors from all over the world. 

For these and many other reasons it truly pains me to see tribes, like the Oneida 

Nation and the Cayuga, and New York State and our local governments unable to 

resolve land and tax issues which have remained unresolved for over 30 years. I am 

here today to ask this committee to address the inconsistencies which exist with the 

Land into Trust Process. 

This issue has alienated family members, separated friends, put neighbors at 

odds, and worst of all, divided a community. Now at first appearance this may seem 

like an easy issue to resolve, but please understand that it is not. Issues such as: 

• Adverse taking of land into trust; 

• Lack of recognized limits on amount of land taken into trust; 

• Collection of local and State sales tax, which puts local merchants at disadvantage; 

• Loss of local and School District property taxes; 

• Maintenance of local roads and bridges in trust region; 

• Checker boarding of trust parcels; 

• State local regulatory enforcement 

The list goes on and on. 

The federal trust process, as laid out in Title 25, Part 151 of the Code of Federal 

Regulations, allows land to be taken into trust status for a tribe under three scenarios, including when ‘‘the Secretary determines that the acquisition of land is necessary to facilitate tribal self-determination, economic development, or Indian housing.’’ There is no question in my mind that tribes need and are entitled to a fair 

and reasonable amount of sovereign land on which to conduct their affairs. More 

importantly, it is not only their right, it is important and, some might say, critical 

to their heritage. 

However, the current process does not adequately balance tribal self-determination with the potential impact on local communities. The regulations require the 

Secretary to consider, among other things: 

• ‘‘The need of the—tribe for additional land; 

• ‘‘The impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls; and 

• ‘‘Jurisdictional problems and potential conflicts of land use which may arise.’’ 

In addition, the National Environmental Policy Act (NEPA) requires Interior to 

prepare an Environmental Impact Statement (EIS) in connection with any landinto-trust application, but Interior only evaluates the environmental impact associated with the Secretary taking title to the land—not the potential consequences of 

that action, in our case, to the local municipal governments and school districts. The 

Carcieri case grew out of just such an unanswered issue, when the Town of CharlesVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
9 

town and the State of Rhode Island sought to require the Narragansett tribe to obtain building permits and approval for a sewage system for a housing project the 

tribe had already begun constructing. However, since the project was on trust land, 

it was exempt from state or local regulation, so the parties were forced to challenge 

the trust acquisition itself. 

While Interior maintains that future development, municipal services agreements, 

and tax enforcement over transactions involving non-Indians are all issues ancillary 

to its trust decision, they remain serious issues that are unresolved by the current 

federal trust process. I fully understand that these issues raise very serious and 

wide-ranging questions that are not easily resolved; however Government-to-Government relations between the United States and sovereign Native American tribes 

necessitate that States and local governments also receive the assistance of the Federal government for protection of certain of their regulatory interests. But this creates a scenario very close to a conflict of interest for the Executive Branch of the 

Federal government that must also satisfy a fiduciary duty to the tribes. This paradox is inherent in the federal trust process as it currently exists and the result 

is a process that is simply incapable of adequately addressing these issues and 

many others that arise in modern society. 

The Federal government cannot continue to simply throw up its hands and insist 

that tribes and local governments resolve these difficult and complex issues among 

themselves. As a member of the first negotiating committee twelve years ago, I can 

tell you we have tried. I would submit that it is imperative that Interior or the BIA 

become engaged in dialog, or at least a cooperating partner, in helping the parties 

resolve and address their differences and issues. Otherwise, issues like these will 

continue to tear communities like mine apart, not only in New York—in Oneida, 

Madison, Cayuga and Seneca Counties—but across the country. 

I am encouraged that the Committee is holding this hearing today to begin the 

discussion of whether and how to amend the Indian Reorganization Act. I respectfully submit that this discussion should be one that assesses whether the current 

process is still striking the correct balance in order ‘‘to facilitate tribal self-determination, economic development, and Indian housing’’ and how the present policy 

affects the densely settled and developed regions such as areas of Upstate New 

York. 

Thank you again for the opportunity to address the Committee today. I yield back 

the balance of my time. 

Mr. KILDEE [presiding]. Thank you very much. I now recognize 

my good friend, Tom Cole, from Oklahoma, Co-Chair of the Native 

American Caucus. 

STATEMENT OF THE HONORABLE TOM COLE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA 

Mr. COLE. Thank you very much, Mr. Chairman. It is a particular honor to get to be back here in this Committee, which I had 

the privilege of serving on for a number of years. 

Mr. Chairman, Ranking Member Hastings and members of the 

Committee, thank you very much for the opportunity to testify on 

my legislation, H.R. 3697, which would address the Supreme Court 

decision, Carcieri v. Salazar. 

There is no question that this issue is of paramount importance 

to Indian Country and Congress should act quickly. This decision, 

which would fundamentally change the nature of tribal land in the 

United States, caught most individuals in the tribal community by 

surprise. 

In the Carcieri decision, the Court ruled that the Indian Reorganization Act provides no authority for the Secretary of the Interior 

to take land into trust for the Narragansett Indian Tribe because 

the statute applies only to tribes under Federal jurisdiction when 

that law was enacted in 1934. 

This standard if applied to tribes throughout the United States 

could put billions of dollars of investments at risk or even halt tribVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6602 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
10 

al development all together. It could also spark a firestorm of litigation between state and local governments and tribal governments. 

Mr. Chairman, there is no question that the Federal government’s treatment of tribal nations over most of the last 200 years 

has often been reprehensible. As a result of forced removal for the 

allotment process and other historical tragedies, many tribal nations were fragmented in 1934 and had not yet received formal 

Federal recognition. 

The Indian Reorganization Act was meant to encourage tribal 

sovereignty and self-governance in order to build sustainable selfgoverning tribal communities. I doubt it was the intent of Congress 

in the 1930s to purposely exclude a sizable number of tribes simply 

because they did not have formal recognition at the time when the 

Indian Recognition Act was enacted. 

Even today, when a tribe is Federally recognized, it must prove 

that it has continually existed as a political entity for generations. 

Therefore, it makes no sense to draw an arbitrary date for tribal 

recognition in order to enable the Secretary to put land into trust. 

Since the Carcieri decision has been published, Mr. Chairman, 

tribes throughout the United States are worried. It is not clear 

which tribes will be directly affected by this decision, but the policy 

implications of this judicial decision has sparked concern throughout Indian Country. Carcieri has the potential to become a revenue 

grab for states and could cause them to call the status of tribal 

lands into question, thereby placing decades of tribal economic development and investment into legal limbo. This is an open invitation for unnecessary litigation between tribal and state governments. Undoubtedly, it will create a major controversy between the 

two groups. 

Today this Committee is considering two excellent pieces of legislation in order to avoid this impending controversy. Congressman 

Kildee’s bill and mine are almost identical, and I would be delighted if this Committee moved forward with either my bill or Mr. 

Kildee’s legislation, H.R. 3742. Both bills are short and clean, as 

they should be. 

Mr. Kildee’s commitment to Native Americans is well known and 

widely admired. Few Members of Congress have done as much to 

assist Indian Country as my friend, Mr. Kildee. Frankly, I would 

be honored to assist in the passage of his bill as one of his lead 

Republican co-sponsors. 

Mr. Chairman, the important thing is to get this fixed quickly before even more tribes suffer at the erroneous assumptions of the 

United States Supreme Court. I also would like to commend Senator Dorgan for his leadership on this issue in the Senate. He was 

the first Member of Congress to move to solve this problem. I know 

all of us concerned about this issue believe that a clear, succinct 

bill must be passed into law without delay to avoid the difficulties 

I outlined earlier in my testimony. 

Thank you, Mr. Chairman and Ranking Member Hastings, for allowing me to come before this distinguished Committee. These bills 

are vital for the protection of tribal governments and investments, 

and the quick action by Congress can prevent litigation that could 

poison relations between state and local governments and tribal 

11 

governments. I urge you to move quickly and report this legislation 

for the sake of tribal communities everywhere. 

Thank you, and I yield back the balance of my time. 

[The prepared statement of Mr. Cole follows:] 

Statement of The Honorable Tom Cole, a Representative in Congress from 

the State of Oklahoma 

Mr. Chairman and Ranking Member Hastings, thank you very much for the opportunity to testify on my legislation, H.R. 3697 which would address the Supreme 

Court decision Carcieri vs. Salazar (Carcieri). There is no question that this issue 

is of paramount importance to Indian Country and Congress should act quickly. 

This decision, which would fundamentally change the nature of tribal land in the 

United States, caught most individuals in the tribal community by surprise. In the 

Carcieri decision, the Court ruled that the Indian Reorganization Act (IRA) provides 

no authority for the Secretary of the Interior to take land into trust for the Narragansett Indian Tribe because the statute applies only to tribes under federal jurisdiction when that law was enacted in 1934. This standard, if applied to tribes 

throughout the United States could put billions of dollars of investments at risk or 

even halt tribal development altogether. It could also spark a firestorm of litigation 

between state and local governments and tribal governments. 

Mr. Chairman, there is no question that the federal government’s treatment of 

tribal nations over most of the last 200 years has often been reprehensible. As a 

result of forced removals, the allotment process and other historical tragedies, many 

tribal nations were fragmented in 1934, and had not yet received formal federal recognition. The Indian Reorganization Act was meant to encourage tribal sovereignty 

and self-governance in order to build sustainable self governing tribal communities. 

I doubt it was the intent of Congress in the 1930s to purposely exclude a sizable 

number of tribes simply because they did not have formal recognition at the time 

when the IRA was enacted. Even today, when a tribe is federally recognized, it must 

prove that it has continually existed as a political entity for generations. Therefore 

it makes no sense to draw an arbitrary date for tribal recognition in order to enable 

the Secretary to put land into trust. 

Since the Carceri decision has been published Mr. Chairman, tribes throughout 

the United States are worried. It is not clear which tribes will be directly affected 

by this decision, but the policy implications of this judicial decision have sparked 

concern throughout Indian Country. Carcieri has the potential to become a revenue 

grab for states, and could cause them to call the status of tribal lands into question, 

thereby placing decades of tribal economic development and investment into legal 

limbo. This is an open invitation for unnecessary litigation between tribal and state 

governments. Undoubtedly, it will create major controversy with the two groups. 

Today this Committee is considering two excellent pieces of legislation in order 

to avoid this impending controversy. Congressman Kildee’s bill and mine are almost 

identical, and I would be delighted if this Committee moved forward with either my 

bill, or Mr. Kildee’s legislation, H.R. 3742. Both bills are short, and clean, as they 

should be. Mr. Kildee’s commitment to Native Americans is well known and widely 

admired. Few Members of Congress have done as much to assist Indian Country 

as my friend, Mr. Kildee. Frankly, I would be honored to assist in the passage of 

his bill as one of his lead Republican co-sponsors. 

Mr. Chairman, the important thing is to get this fixed quickly before even more 

tribes suffer at the erroneous assumptions of the United States Supreme Court. I 

also would like to commend Senator Dorgan for his leadership on this issue in the 

Senate. He was the first Member of Congress to move to solve this problem. I know 

all of us concerned about this issue believe that a clear, succinct, bill must be passed 

into law without delay to avoid the difficulties I outlined earlier in my testimony. 

Thank you again, Mr. Chairman, and Ranking Member Hastings for allowing me 

to come before this distinguished committee. These bills are vital for the protection 

of tribal governments and investments and the quick action of Congress can prevent 

litigation that could poison relations between state and local governments and tribal 

governments. I urge you to move quickly and report this legislation for the sake of 

tribal communities everywhere. 

Mr. KILDEE. The Chair thanks Congressman Arcuri and Congressman Cole for their testimony this morning. And unless we 

12 

have questions, I will use our usual protocol and yield to the gentleman from Washington. 

Mr. HASTINGS. Thank you very much, Mr. Chairman. First of all, 

thank you both for your testimony. And I had mentioned in my 

statement this is an issue that needs to be resolved. I can imagine 

the ramifications of those that were planning and all of a sudden 

the disruption in that. 

The question that I have, and this is mainly to Mr. Arcuri, does 

the legislation before us, Mr. Cole’s and Mr. Kildee, address the 

issues that you testified to? 

Mr. ARCURI. I don’t think that it does fully. Our issue really 

deals more with the taking of the land into trust and what are the 

parameters and was this the true intent of the way the original 

trust language was set up. And, again, what I think that we need 

is a little more guidance. 

You have a lot of situations in the east where, I can speak for 

New York, where tribes do not have land and clearly they should 

have land for whatever reason. And there are various reasons why 

they don’t. They no longer have land. But to use the trust process 

to create large tracts of land creates a real problem for local school 

districts, for local towns and communities, and that is a real 

problem. 

Mr. HASTINGS. So, in many respects, your reason for your testimony is to kind of use this for lack of a better word opportunity 

to address the concerns you have, particularly on the trust issues. 

Is that a fair statement? 

Mr. ARCURI. That is a very fair statement, yes. 

Mr. HASTINGS. All right. That being the case, because we all 

know we have to take advantage of the opportunities that are afforded to us in this legislative process, you are a member of the 

Rules Committee. I used to be on the Rules Committee. I recognize 

that there are powers within that Rules Committee of things that 

we can do. There has been talk of attaching this piece of legislation 

to something that has to pass in order to get this quickly resolved. 

I guess my question to you is how would you as a member of the 

Rules Committee look at that, knowing that you have an opportunity to try to at least look at a portion of your concerns if this 

bill were put on a larger bill and passed without going through the 

normal process? 

Mr. ARCURI. Well, one of the things that I think is a creative opportunity is that I think that what we have not seen is more guidance and help from the BIA, from the Department of the Interior. 

I mean, very often, there is no question but these issues can and 

should be resolved locally. It has happened in other parts of the 

country, but what we have not seen is any help and any assistance 

from either the BIA or from the Department of the Interior in 

terms of helping bring the parties to the table to sit down and discuss it. And I think that that would be a critical piece of legislation 

for this Committee to—— 

Mr. HASTINGS. Well, listen, I understand that, and what you are 

suggesting is that this is an opportunity here that ought to be 

taken advantage of at least as it relates to trust and at least as 

it relates to your concerns if I am hearing your correctly. 

13 

My question is, the process here within the House, if this bill 

gets attached to some other piece of legislation and all of a sudden 

your opportunity would potentially be gone because, listen, I have 

tribes in my district, and I hear the frustrations with BIA where 

there is no response. 

This is the opportunity to try to get something from them to address your concerns. But if this is attached to a larger bill, it has 

to go through the Rules Committee, rules would have to be waived. 

I just wondered what your thought process would be in that regard 

because then your opportunity would be gone. 

Mr. ARCURI. You are talking about the Carcieri, this section? 

Mr. HASTINGS. Yes. Right. 

Mr. ARCURI. As you are well aware, it would depend on what bill 

it was attached to. I would have to see it. That is difficult to answer I think at this point. 

Mr. HASTINGS. OK. Well, I wanted to get a sense because I think 

this needs to be resolved, and I think, as I mentioned in my statement, there needs to be as broad of input of people that are affected. This is not obviously a partisan issue. This is an issue that 

needs to be addressed. And, as you know, sometimes in the legislative process these opportunities avail themselves and we need to 

take advantage of that. 

And one way to not take advantage of it would be to not go 

through the regular process and fast-track it without input. You 

are a member of the Rules Committee. You would be part of that. 

That is the reason I asked you. 

Mr. ARCURI. And one of the difficult things from our perspective 

is, you know, I recognize the fact that we have a very unique circumstance and if we change the law or we do something dramatic, 

it could affect other circumstances and other tribes around the 

country, which may not be beneficial. However, you know, again, 

we have certain unique circumstances in our state, as in your state 

in Washington. And that is why I say that if we could get some 

help with resolving our issues through the BIA and through the 

Department of the Interior, we could really well move into an area 

that could settle it ourselves. 

Mr. HASTINGS. Good. Thank you very much. Thank you, Mr. 

Chairman. 

Mr. ARCURI. Thank you, sir. 

Mr. KILDEE. The gentleman from Oklahoma. 

STATEMENT OF THE HONORABLE DAN BOREN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA 

Mr. BOREN. Thank you, Mr. Chairman. I really appreciate this 

hearing today. I appreciate Chairman Rahall, Ranking Member 

Hastings, and the gentleman sitting in the chair, Congressman Kildee, who has been a great champion, not only on this issue but on 

so many other issues in Indian Country. Thank you for your leadership. 

I want to first say that I am a co-sponsor of Mr. Kildee’s bill and 

Mr. Cole’s bill. I support both pieces of legislation. I am kind of like 

my colleague from Oklahoma. We just want to get this fix done 

quickly because it is so very important to places like Oklahoma. We 

have a lot of jobs at stake here. A lot of attention is about gaming, 

14 

but this is much more than gaming. This is about housing. This is 

about so many other issues that impact Indian Country. And so I 

really appreciate this opportunity. Whatever vehicle it may take, 

the question was asked, must pass bill. Sure, I am fully supportive 

of us doing that. 

There are a lot of unanswered questions here. We have particular issues in Oklahoma because we have tribes that were 

formed under the Oklahoma Indian Welfare Act and a lot of other 

questions that I would like to get answers to. I am going to have 

questions for our next panel, but I want to thank my colleagues for 

being here today and again thank Mr. Kildee for his leadership. 

Thank you. 

Mr. KILDEE. Ms. Herseth Sandlin from South Dakota. 

STATEMENT OF THE HONORABLE STEPHANIE HERSETH 

SANDLIN, A REPRESENTATIVE IN CONGRESS FROM THE 

STATE OF SOUTH DAKOTA 

Ms. HERSETH SANDLIN. Thank you, Mr. Chairman. I do not have 

questions for our colleagues today, but I do want to thank them for 

their testimony and thank Chairman Rahall for the hearing so 

that, as Mr. Boren said, we can examine these very important 

issues. I want to thank you, Mr. Kildee and Mr. Cole, for the legislation that you have introduced, for your leadership on behalf of 

Indian Country. 

I am a co-sponsor of 3742, reaffirming the Secretary’s authority 

to take land into trust for tribes regardless of when they received 

Federal recognition. The nine sovereign nations that I have the 

honor of representing all were recognized prior to the enactment of 

the Indian Reorganization Act of 1934. 

But they have very serious concerns that this recent decision in 

Carcieri will invite new legal challenges of tribal trust acquisitions 

in South Dakota, battles that they have been waging for years. And 

I think it is critical that we act to ensure that the Secretary and 

affirming his authority in this regard for meeting the Federal government’s obligations to all the tribes. 

So I think that the decision could greatly limit the ability of 

tribes to stimulate economic development. As Mr. Boren said, this 

has a lot more to do with a whole host of other issues in addition 

to gaming that I think people are paying attention to as it relates 

to affordable housing, as he mentioned, preserving history and culture and other economic development issues important to the tribes 

I represent and across Indian Country, whether it be renewable 

energy development in terms of wind energy, other pursuits that 

tribes are looking to partner for job opportunities in a part of the 

country that I represent throughout the great plains where unemployment is of the highest rates. 

So I again appreciate the opportunity to hear from our colleagues 

about their thoughts on these bills and how this affects different 

regions of the country. But whether tribes are recognized prior to 

or after 1934, the decision could have far-reaching consequences. 

So I think we need to affirm the authority. Thank you, Mr. Kildee. 

Mr. KILDEE. Thank you. And we appreciate the testimony of our 

two colleagues, and at that, we will let you get about your other 

15 

tasks today. This is a very busy week. And thank you very, very 

much for your testimony. 

The Chair would now call to the stand Mr. Donald Laverdure, 

Deputy Assistant Secretary of Indian Affairs, U.S. Department of 

the Interior, Washington, D.C. Mr. Laverdure, we welcome you 

here. You may begin your testimony. 

STATEMENT OF DONALD LAVERDURE, DEPUTY ASSISTANT 

SECRETARY OF INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 

INTERIOR, WASHINGTON, D.C. 

Mr. LAVERDURE. Good morning, Mr. Chairman, Ranking Member 

Hastings and members of the Committee. Thank you for this opportunity to present the Department’s position on the two bills that 

are before this Committee. 

My name is Donald Laverdure, and I am the Deputy Assistant 

Secretary for Indian Affairs over at the Department, and the Department applauds the sponsors for their introduction of these bills 

and strongly supports Congress’ effort to address the recent U.S. 

Supreme Court decision in Carcieri v. Salazar. 

Most importantly, the Administration supports the two bills for 

two primary reasons. It reaffirms the Secretary’s authority to take 

land into trust for all tribes, and it reaffirms the legality of actions 

already taken under IRA Section 5. 

The Carcieri decision runs contrary to longstanding policy and 

practice of the United States to assist all tribes in establishing and 

protecting a land base sufficient to allow them to provide for the 

health, safety and welfare of their tribal citizens. 

The Carcieri decision creates uncertainty, potentially upsets 

strong reliance interests and settled expectations and increases 

Federal and tribal costs associated with current and expected historical research and potential litigation. Even though the U.S. Supreme Court says what the law is, we disagree with how the U.S. 

Supreme Court construed Section 5 of the IRA and urge Congress 

to clarify it. 

The U.S. Supreme Court did not define the term ‘‘under Federal 

jurisdiction’’ and only decided the case on the term now, which 

meant the time of enactment in 1934. At this time, the Department 

is still trying to interpret the full ramifications of the decision, because all we know today is that the U.S. Supreme Court held that 

the Narragansett tribe was not under Federal jurisdiction, which, 

as an aside, was an accepted fact in the record. 

Regardless of how broad or narrowly the term ‘‘under Federal jurisdiction’’ will be construed, we are almost certain that it will 

cause litigation and lead to uncertainty and costly expenses. In addition, the Secretary of the Interior cannot fully fulfill his trust responsibility in a timely and predictable manner because of this uncertainty. 

Therefore, the Department’s approach has been on a case-by-case 

basis with each pending application. And with that, we have to review the facts, evidence, the request itself, extensive research into 

each tribe’s history to determine whether each tribe was under 

Federal jurisdiction. And all of this leads us to the point of where 

we are today, which is the Carcieri fix proposed in this Committee 

essentially is to reinstill the intent of the IRA and recall that the 

16 

IRA is in reaction to the 1887 General Allotment Act where there 

was a two-thirds reduction in all tribal lands. 

In fact, in 1938, the Secretary of the Interior’s annual report 

stated that Indian-owned lands had diminished from 130 million 

acres in 1887 to approximately 49 million in 1933. During that period, tribes lost some 80 percent of the value of their land and individual Indians realized a loss of 85 percent of their value. As a result, Congress enacted the IRA. The IRA was intended to end allotment, provide a way for Indians to organize themselves in a Federally recognized forum, secure home lands and reacquire lands for 

tribal purposes and address allotment. 

Congress has acted to reaffirm the IRA, and that has been done 

in the Indian Self-Determination Education Assistance Act in 1975 

and ultimately with amendments to the IRA in 1994. At that time 

in 1994, Congress expressed its intent that all tribes be treated the 

same regardless of when they were recognized. And the practical 

effects are that some tribes who are impacted by this are going to 

have a difficult time to provide housing opportunities, like the 

Narragansetts, to help them realize the tremendous energy assets 

and to protect existing rights of way and leases that will be utilized 

for various economic development reasons, as stated earlier in the 

testimony. 

We think that H.R. 3742 is the preferred vehicle to accomplish 

this objective because it applies not just to Section 19 but to the 

entire Act. So H.R. 3742 is fully supported by the Administration 

and accomplishes the two most important things, which are the 

elimination of the temporal restriction for tribes potentially recognized after 1934 and also to codify the Secretary’s land decisions 

since 1934. 

I want to end with just a quote, which is the dissent of Justice 

Black in the Tuscarora Commission case where he said, ‘‘Great nations, like great men, keep their word,’’ and this Administration 

fully supports this fix to accomplish the objectives mentioned in 

this testimony. 

Thank you for the opportunity to provide this testimony, and I 

am happy to answer any questions that the Committee has. 

Mr. KILDEE. Thank you for your testimony. Do you think that 

the U.S. Supreme Court looked adequately at the history and background that led to the Indian Reorganization Act of 1934? 

Mr. LAVERDURE. Thank you, Mr. Chairman. The U.S. Supreme 

Court did go into a fair amount of detail into the background of the 

Carcieri decision and in fact in the decision itself talked often 

about the correspondence between Senator Wheeler and then Commissioner of Indian Affairs Collier. And there was a back and forth 

on the ultimate bill that resulted in the IRA, but I think that the 

total historical evidence and the impact of the decision perhaps did 

not fully take into account all of the history that goes behind each 

of the decisions for the political government-to-government relationship between the United States and the individual tribes. 

Mr. KILDEE. Thank you very much. I am hearing from tribes 

across the country that they are concerned that they may have a 

Carcieri problem. So, therefore, they are not now submitting trust 

applications until there is guidance from the IRA on how their 

trust application will be handled. They don’t want their states or 

17 

neighboring communities to file a suit against them. Therefore, 

they are hesitant to bring a case before the IRA. Are your regional 

offices or your office here in Washington, D.C. giving them any assistance or advice as to how they should handle what they had intended to put before the Interior Department? 

Mr. LAVERDURE. Thank you for the question, Mr. Chairman. At 

this time, the Department’s approach has been case by case. We 

haven’t fully understood the implications of all of the aspects of the 

decision and how it will impact that. And so when the pending application is provided to the Department, we ask that the regional 

directors who handle the nongaming trust applications, that they 

in fact look to the Solicitor’s guidance, Department of Justice and 

others to see how they should in fact approach the application and 

whether in fact they may be impacted by the Carcieri decision. 

The same holds true at the Washington, D.C. level, but this all 

calls into question and really is a strong reason for Congress to 

clarify this authority so that we don’t have to go through this piecemeal, case by case with each application. 

Mr. KILDEE. In certain states, there are treaties, specific treaties 

signed by tribes, yet through the years, the Department of the 

Interior and the BIA have just dropped certain tribes that were signatories to those treaties from the rolls and they were dropped for 

many, many years. Subsequently, they have been returned to the 

rolls, but they were not on the rolls in 1934. But they had been 

signators of the Treaty of Detroit and various treaties around the 

country. What do we do with those tribes if we do not set aside or 

modify the Supreme Court decision? 

Mr. LAVERDURE. Well, Mr. Chairman, I think it will end up going 

to the case-by-case analysis of those tribes, and those treaties that 

you talk about, Detroit, for example, will be evidence of a possible 

Federal relationship. And recall that throughout history, early on, 

prior to 1871, the existence of a treaty was the basis for the government-to-government relationship oftentimes between the Federal government and Indian tribes and in fact continues to be evidence of a political relationship. 

And so that would be one of the considerations and also the fact 

of any administrative errors also would be taken into account in 

the process for the trust application as well. 

Mr. KILDEE. But this would be as a result of litigation, would it 

not? Very often someone could sue and say you were not on the 

rolls in 1934, and even though you were a signator to the Treaty 

of Detroit, the Court has ruled that, unless you were on the rolls 

in 1934, not recognized. Could that not lead to a great deal of litigation in certain areas? 

Mr. LAVERDURE. Yes, Mr. Chairman, I think it could lead to 

many other unintended consequences, but much litigation to be 

sure. 

Mr. KILDEE. Could you indicate what other unintended consequences this might lead to? 

Mr. LAVERDURE. Well, that the Supreme Court’s decision, which 

prior to this time there was deference by the Supreme Court to the 

political branches on recognition. And the working assumption is 

that the remaining provisions of the IRA remain legal until the Supreme Court says otherwise. But we would have to take that into 

18 

account, the analysis, but right now, today, we simply view it as 

the application to the Narragansett tribe and that they were not 

under Federal jurisdiction in 1934. 

But the other consequences in present day is third-party developers, for example, wanting certainty and predictability on a renewable energy transaction, which is a signature initiative of the 

administration; housing development, which was the subject of the 

case itself; trying to get financing from investors and banks; not 

wanting uncertainty with title to the trust lands and a variety of 

other things that are still under consideration. 

Mr. KILDEE. You know, when a person buys land, one wants not 

only a deed but the abstract right, indicating the real ownership, 

trace of ownership. If a lender to a tribe that might be on the verge 

of some really great economic development were to go to that lender, they might be very hesitant, as you indicated, to lend the money 

with this cloud. Is that not the case? 

Mr. LAVERDURE. I assume that could occur, Mr. Chairman. 

Mr. KILDEE. I think with lending as sluggish as it is right now 

that the lender would be very hesitant to lend money where there 

is some question as to whether the law covers them as a really existing potential borrower. 

Mr. LAVERDURE. And I think, as Mr. Cole stated earlier, it has 

the potential to affect generations of economic development that 

have really turned around tribal communities. 

Mr. KILDEE. Thank you very much. The gentleman from Washington. 

Mr. HASTINGS. Thank you, Mr. Chairman. Thank you, Mr. 

Laverdure, for being here today. As I mentioned in my opening 

statement, I sent Secretary Salazar a letter with a number of questions, and I noted in your testimony you didn’t answer any of those 

questions. Are you prepared to answer those questions today that 

I had submitted? 

Mr. LAVERDURE. Thank you, Mr. Hastings. We did receive those 

on Friday and worked diligently since that time to look at the questions, assembled the internal teams to try to come up with the best 

answers that we could now. And for those that we were unable to 

gather the information, we would be happy to follow up and provide those to you, but we do have the answers to the extent we can 

to those questions. 

Mr. HASTINGS. You do have them you say? 

Mr. LAVERDURE. Some of those answers, yes. 

Mr. HASTINGS. Why don’t you go ahead and respond then to some 

of those questions that I had. There are a number of questions 

there, so rather than me picking which one, why don’t you tell me 

which one you are prepared to answer today. 

Mr. LAVERDURE. Well, of the 14 questions, I guess beginning 

with number one, to the extent I can, has listed, I don’t know if 

you want me to read the question, Mr. Hastings. 

Mr. HASTINGS. Well, let me just read the question, and then you 

can respond. The first question was, has the Department determined which tribes on the latest list of recognized tribes annually 

published in the Federal Register pursuant to the Federally Recognized Indians List Act of 1994 were not under Federal jurisdiction 

on June 18, 1934? 

19 

Mr. LAVERDURE. No, and the Carcieri decision spoke to the Narragansett. It has confused the issue as to when the Secretary might 

exercise his discretionary trust authority. The Department is again 

approaching that on a case-by-case and prefers the legislative vehicle to clarify the Secretary’s authority. 

Mr. HASTINGS. So the legislation clarifies the Secretary’s authority? 

Mr. LAVERDURE. It would reaffirm the Secretary’s authority to 

take the land. 

Mr. HASTINGS. But you must have a list, though. The reason I 

am asking is that I clearly understand the dilemma of the Supreme 

Court decision, but between 1934, the time ensuing, there had to 

have been some decisions or work with tribes that were submitting 

an application. You must have a list of that. That is simply nothing 

more than what I am asking is what that list is. 

Mr. LAVERDURE. I understand, Mr. Hastings. The difficulty with 

the production of a list is that it could be premature, that some of 

these, as mentioned before, the 16 tribes recognized under the administrative process, in 1994, for example, Congress said in its 

amendments to the IRA that they would be considered historic 

tribes and that they had to prove their existence back to time immemorial. And because of that, if we had listed someone who had 

been recognized after but in fact through the process had proved 

that they continually existed, then we would be prematurely providing a list that could have unintended consequences. 

Mr. HASTINGS. Well, and I appreciate that. And I would expect 

that something that goes back this far and is as complex as this 

would have certain footnotes as to the exceptions and why it would 

be difficult to have say one list. Well, listen, I know my time is running out, and there is no way we can get to all of the questions. 

I would appreciate if you could submit in writing all of the answers 

to all of the questions that I asked. Could you do that? 

Mr. LAVERDURE. Yes, we will, Mr. Hastings. 

Mr. HASTINGS. OK. And how quickly can we expect an answer, 

because this obviously is a very important issue that needs to be 

addressed? 

Mr. LAVERDURE. We will work with your staff and get on it as 

soon as possible. 

Mr. HASTINGS. By the end of the week perhaps? 

Mr. LAVERDURE. The end of this week, Mr. Hastings? 

Mr. HASTINGS. Right. 

Mr. LAVERDURE. We have a Presidential summit tomorrow, 

which is going to take out tomorrow. We will just start working on 

it as soon as possible and try to get it to you as soon as possible. 

Mr. HASTINGS. Right. Well, as you know, you never know the answer until you ask. I certainly appreciate that. I know you have 

other responsibilities, as do we. Listen, I would wish that you 

would communicate with us as quickly as possible just to give us 

an idea so that we can try to be helpful in this whole process. 

Mr. LAVERDURE. OK. 

Mr. HASTINGS. Thank you. 

Mr. KILDEE. You know, it seems to me that we are trying to establish various stimuli in this country for the economy. This would 

seem to be for many attorneys a real bonanza out there. They could 

20 

see possible lawsuits on various things, development of mineral 

rights, leasing of mineral rights. This could lead to a great deal of 

litigation all over the country, could it not? 

Mr. LAVERDURE. Yes, it could, Mr. Chairman. And that is one of 

our principal concerns about not having a legislative fix. 

Mr. KILDEE. Thank you very much. The gentleman from Oklahoma, Mr. Boren. 

Mr. BOREN. All right. Thank you, Mr. Chairman. I had a few prepared questions, and then they changed a little bit because of your 

testimony. The first question I had was, is the Department currently continuing with the responsibility to process land-into-trust 

applications right now and, if so, can you describe how the Department is interpreting the phrase ‘‘under Federal jurisdiction.’’ And 

kind of you already answered that by saying we are taking this on 

a case-by-case basis. 

And just as an editorial, to me, you are saying regional directors 

are kind of making this determination, and I know you all are kind 

of having to come up with some way to handle all of this. And, 

frankly, it is a little scary because a lot of these regional directors 

can use their own bias. I mean, we could have one person deciding 

one thing for one tribe, someone else having a different decision, 

and so we have these unelected bureaucrats basically making some 

decisions that have real impacts on tribes and how they determine 

housing or economic development issues or anything else. 

I know it is not your fault. This is dropped on your lap and you 

kind of have to come up with a way to determine these cases. But 

I think that what is happening in Indian Country is a reason why 

we need to get Mr. Kildee’s bill passed as soon as possible to fix 

that. 

And then I go on. I have another question. There are situations 

where a tribe may have been in discussions with your Department 

for years prior to the passage of IRA in 1934 or actually haven’t 

received appropriations from Congress, yet those same tribes may 

not have been recognized until 10, 20 or even 40 years later. Would 

you consider these discussions counting as being under Federal jurisdiction? And I mean as concise a statement. Yes or no would be 

a lot better than, well, maybe. Can you give us kind of a good 

framework there? 

Mr. LAVERDURE. Mr. Boren, since we haven’t set the criteria for 

‘‘under Federal jurisdiction,’’ I couldn’t say. It certainly would be 

evidenced toward that type of relationship. 

Mr. BOREN. OK. And let me give you another scenario. What if 

a tribe is Federally recognized after 1934, but that tribe’s basis for 

recognition is that it is a descendant or a branch of a tribe that 

had treaty relations with the United States but is no longer functioning as an entity. And Mr. Kildee talked about this a little bit. 

But in your view, would that count as being under Federal jurisdiction? Still the same answer? 

Mr. LAVERDURE. Likely the same answer, but under the IRA, 

there were three classes. One was any member of a Federally recognized tribe. The second class was descendants of members on an 

Indian reservation. And then the third class was one half bloods or 

more. And that is what existed in the statue in 1934, so that has 

a partial perhaps answer to your question. 

21 

Mr. BOREN. OK. Last, I have kind of a parochial issue. As you 

know, most tribes in my State of Oklahoma have longstanding 

treaty relations with the United States, but some have reorganized 

under the Oklahoma Indian Welfare Act. Should they be concerned, 

or have you identified any potential issues for those tribes? 

Mr. LAVERDURE. Mr. Boren, because it was an interpretation of 

the IRA, we have not looked into the Oklahoma Indian Welfare 

Act, but it could be subject to a future challenge based on similar 

reasoning. If someone were to bring a lawsuit saying provisions 

like the IRA exist in the OIWA, but as of today, it only affects Narragansett and Section 5 of the IRA. 

Mr. BOREN. OK. Well, thank you for your testimony. And I think 

these unsettled questions underscore the fact that we need to have 

immediate action and get this bill passed and this fix done. Thank 

you, Mr. Chairman. 

Mr. KILDEE. My friend, my hallmate and the gentleman from 

Alaska. 

[The prepared statement of Mr. Laverdure follows:] 

Statement of Donald Laverdure, Deputy Assistant Secretary— 

Indian Affairs, U.S. Department of the Interior 

Chairman Rahall, Ranking Member Hastings, and Members of the Committee, my 

name is Donald Laverdure and I am the Deputy Assistant Secretary—Indian Affairs 

at the Department of the Interior. Thank you for the opportunity today to present 

the views of the Department of the Interior on H.R. 3742 and H.R. 3697, bills ‘‘to 

amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the 

Interior to take land into trust for Indian tribes.’’ The Department applauds the 

sponsors for the introduction of these bills and strongly supports Congress’ effort to 

address the recent United States Supreme Court (Court) decision in Carcieri v. 

Salazar (Carcieri). 

The Department was, and continues to be, disappointed in the Court’s decision 

in the Carcieri case. The decision was not consistent with the longstanding policy 

and practice of the United States to assist all tribes in establishing and protecting 

a land base sufficient to allow them to provide for the health, welfare, and safety 

of tribal members, and in treating tribes alike regardless of the date of acknowledgment. The Court’s decision hinders fulfillment of the United States’ commitment to 

supporting Tribes’ self-determination by clouding—and potentially narrowing—the 

United States’ authority to protect lands for tribes by holding the lands in trust on 

their behalf. 

Furthermore, the Carcieri decision has disrupted the process for acquiring land 

in trust for recognized tribes by imposing new and undefined requirements on applications now pending before the Secretary. The decision has called into question the 

Department’s authority to approve pending applications, as well as the effect of such 

approval, by imposing criteria that have not previously been construed or applied. 

Purposes of the Indian Reorganization Act 

In 1887, Congress passed the General Allotment Act. The General Allotment Act 

divided tribal land into 80 and 160-acre parcels for individual tribal members. The 

allotments to individuals were to be held in trust for the Indian owners for no more 

than 25 years, after which the owner would hold fee title to the land. Surplus lands, 

lands taken out of tribal ownership but not given to individual members, were conveyed to non-Indians. Moreover, many of the allotments provided to Indian owners 

fell out of Indian ownership through tax foreclosures. 

The General Allotment Act resulted in huge losses of tribally owned lands, and 

is responsible for the current ‘‘checkerboard’’ pattern of ownership on Indian reservations. Approximately 2/3 of tribal lands were lost as a result of the process established by the General Allotment Act. Moreover, many tribes faced a steady erosion of their land base during the removal period, prior to the passage of the General Allotment Act. 

The Secretary of the Interior’s Annual Report for fiscal year ending June 30, 1938 

reported that Indian-owned lands had been diminished from 130 million acres in 

1887, to only 49 million acres by 1933. Much of the remaining Indian-owned land 

was ‘‘waste and desert’’. According to then-Commissioner of Indian Affairs John ColVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
22 

lier in 1934, tribes lost 80 percent of the value of their land during this period, and 

individual Indians realized a loss of 85 percent of their land value. 

Congress enacted the Indian Reorganization Act in 1934, in light of the 

devastating effects of prior policies. Congress’ intent in enacting the Indian 

Reorganization Act was three-fold: to halt the federal policy of Allotment and Assimilation; to reverse the negative impact of Allotment policies; and to secure for 

all Indian tribes a land base on which to engage in economic development and selfdetermination. 

The first section of the Indian Reorganization Act expressly discontinued the allotment of Indian lands, while the next section preserved the trust status of Indian 

lands. In section 3, Congress authorized the Secretary to restore tribal ownership 

of the remaining ‘‘surplus’’ lands on Indian reservations. Most importantly, Congress 

authorized the Secretary to secure homelands for Indian tribes by re-establishing 

Indian reservations. 

The United States Supreme Court recognized that the Indian Reorganization Act’s 

‘‘overriding purpose’’ was ‘‘to establish machinery whereby Indian tribes would be 

able to assume a greater degree of self-government, both politically and economically.’’ Morton v. Mancari, 417 U.S. 535, 542 (1974). Congress recognized that one 

of the key factors for tribes in developing and maintaining their economic and political strength lay in the protection of the tribe’s land base. 

Acquisition of land in trust is essential to tribal self-determination. The current 

federal policy of tribal self-determination built upon the principles Congress set 

forth in the Indian Reorganization Act and reaffirmed in the Indian Self-Determination and Education Assistance Act. 

Most tribes lack an adequate tax base to generate government revenues, and others have few opportunities for economic development. Trust acquisition of land provides a number of economic development opportunities for tribes and helps generate 

revenues for public purposes. For example, trust acquisitions provide tribes the ability to enhance housing opportunities for their citizens. This is particularly necessary 

where many reservation economies require support from the tribal government to 

bolster local housing markets and off-set high unemployment rates. Trust acquisitions are necessary for tribes to realize the tremendous energy development capacity 

that exists on their lands. Trust acquisitions allow tribes to grant certain rights of 

ways and enter into leases that are necessary for tribes to negotiate the use and 

sale of their natural resources. Uncertainty regarding the trust status of land may 

create confusion regarding law enforcement services and interfere with the security 

of Indian communities. Additionally, trust lands provide the greatest protections for 

many communities who rely on subsistence hunting and agriculture that are important elements of their culture and life ways. 

Carcieri v. Salazar Decision 

On February 24, 2009, the Supreme Court issued a decision in Carcieri v. Salazar. The Court held that land could not be taken into trust for the Narragansett 

Tribe of Rhode Island under Section 5 of the Indian Reorganization Act of 1934 because the Tribe was not a recognized Indian tribe under Federal jurisdiction in 

1934. This decision prevented the tribe from completing its low-income housing 

project and has required both the Department and tribes to spend an inordinate 

amount of time analyzing whether many tribes are entitled to have land taken into 

trust in light of the Carcieri holding. This is both time-consuming and costly. Once 

the Department completes this process, and notices its intent to take the land into 

trust, we expect costly and complex litigation over the status of applicant tribes in 

1934. This proposed legislation will avoid the need for the historical research and 

the high costs and risks of litigating this issue. 

Consequences of the Decision 

In 1994 Congress was concerned about the differences in the treatment of Indian 

tribes and passed an amendment of the Indian Reorganization Act to emphasize its 

existing policy and to ensure its policy of treating tribes equally in the future. The 

amendment provided: 

(f) Privileges and immunities of Indian tribes; prohibition on new 

regulations 

Departments or agencies of the United States shall not promulgate any regulation or make any decision or determination pursuant to the Act of June 

18, 1934 (25 U.S.C. 461 et seq., 48 Stat. 984) as amended, or any other Act 

of Congress, with respect to a federally recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the 

Indian tribe relative to other federally recognized tribes by virtue of their 

status as Indian tribes. 

23 

(g) Privileges and immunities of Indian tribes; existing regulations 

Any regulation or administrative decision or determination of a department 

or agency of the United States that is in existence or effect on May 31, 

1994, and that classifies, enhances, or diminishes the privileges and immunities available to a federally recognized Indian tribe relative to the privileges and immunities available to other federally recognized tribes by virtue 

of their status as Indian tribes shall have no force or effect. 

25 U.S.C. § 476(f), (g). The result of the Carcieri decision runs counter to that congressional policy and creates the potential for the disparate treatment of tribes. 

Both H.R. 3742 and H.R. 3697 would restate Congress’ longstanding policy of treating all federally recognized tribes equally. 

The uncertainty created by Carcieri has also had a significant impact on tribes 

seeking to place land into trust. In addition, tribes must expend even more time and 

money preparing to litigate their trust acquisition applications if uncertainty 

persists. 

H.R. 3742 and H.R. 3697 

Both H.R. 3742 and H.R. 3697 would help achieve the goals of the Indian Reorganization Act and tribal self-determination by clarifying the Department’s authority under the Act applies to all tribes whether recognized in 1934 or not, unless 

there is tribe-specific legislation that precludes such a result. The bills would reestablish confidence in the United States’ ability to secure a land base for all federally 

recognized tribes as well as address the devastating effects of allotment policies for 

all federally-recognized tribes. 

While both bills would achieve the purpose of restoring certainty for tribes, States, 

and local communities, we do, however, prefer the language in H.R. 3742 over the 

language contained in H.R. 3697. H.R. 3742 provides that the terms ‘‘Indian tribe’’ 

and ‘‘tribe’’ would apply throughout the IRA rather than just section 19 of the Act, 

as provided in H.R. 3697. 

Conclusion 

A sponsor of the Indian Reorganization Act, Congressman Howard, stated: 

‘‘[w]hether or not the original area of the Indian lands was excessive, the land was 

theirs, under titles guaranteed by treaties and law; and when the Government of 

the United States set up a land policy which, in effect, became a forum of legalized 

misappropriations of the Indian estate, the Government became morally responsible 

for the damage that has resulted to the Indians from its faithless guardianship.’’ 

The power to acquire lands in trust is an important tool for the United States 

to effectuate its longstanding policy of fostering tribal-self determination. Congress 

has worked to foster self-determination for all tribes, and did not intend to limit this 

essential tool to only one class of tribes. These bills would clarify Congress’ policy 

and the Administration’s intended goal of tribal self-determination and allow all 

tribes to avail themselves of the Secretary’s trust acquisition authority. These bills 

will help the United States meet is obligation as described by United States Supreme Court Justice Black’s dissent Federal Power Commission v. Tuscarora Indian 

Nation. ‘‘Great nations, like great men, should keep their word.’’ 

This concludes my statement. I would be happy to answer any questions the Committee may have. 

Mr. YOUNG. Thank you, Mr. Chairman. I have one interest in 

this legislation, actually two. I happen to support the foundation of 

the legislation. I talked to Mr. Cole about this. I am just concerned 

from the witnesses’ point of view, the Alaskan native language was 

included in the bill. Why is it necessary? 

Mr. LAVERDURE. Thank you, Mr. Young. The actual legislation 

was proposed from the Congress, the Committee itself, and follows 

what has been Department policy, to include Alaskan natives generally in Federal programs. 

Mr. YOUNG. That word generally, but keep in mind that this decision was made 20 years ago not to allow the Secretary to take 

land in trust. And Adidir made 27 tribes in the state by a stroke 

of the bid, overlapping the regional corporation lands. And their 

concern, the regional corporation, if in fact a village by one person 

or by the instigation of some legal counsel would suggest to ask the 

24 

Secretary to take it under trust, would impede the ability for the 

corporations to have control of subsurface rights. And that is a decision we made 20 years ago. 

And to my knowledge, the Governor, the attorney general, the 

Congressional delegation and the native leaders with the corporation were not notified about this language being included. And your 

Secretary unequivocally supports the bill with it in, and I think 

that is a disservice. This is a unique situation. We had a settlement in 1971, and we have gone through a series of amendments 

to the bill, and anytime that occurs, they should be in cooperation 

with the tribes themselves, the corporations themselves and not arbitrarily by the Secretary. 

And I just want to let the author know there are some real conflicts here, and unless they are addressed, we will have a little 

problem. 

Mr. KILDEE. I am sure that the gentleman and I and the Chairman of the Committee will have discussions on this matter. 

Mr. YOUNG. I thank you, because there are certain individuals in 

the state that happen to be lawyers, you mentioned them, that 

make money, and they could do nothing better than have a conflict 

amongst the people themselves. One is our nonprofit corporation 

tribal members, and then we have the corporations themselves, the 

regional corporations. And I don’t want them making money off of 

the people in Alaska I don’t think necessarily when we made this 

decision 20 years ago. And I yield back. 

Mr. KILDEE. I thank the gentleman. The gentleman from Wisconsin, Mr. Kind. 

Mr. KIND. Thank you, Mr. Chairman. I don’t have any questions 

for the Assistant Secretary. I just appreciate him and the other 

witnesses for their testimony here today, and I look forward to 

working with my friend from Michigan and others on the Committee to see what we can do to advance this important piece of 

legislation, especially in light of the recent Supreme Court decision 

and the impact that is going to have on tribal status throughout 

the country. 

So, Mr. Chairman, I look forward to the hearing. I want to thank 

you for the introduction of your legislation, for holding this hearing 

today, and we will hear what the testimony has to offer. I yield 

back. Thank you. 

Mr. KILDEE. Mrs. Lummis. 

Mrs. LUMMIS. Thank you, Mr. Chairman. And I would like to 

thank the Assistant Secretary for coming as well today. I do have 

a couple of questions. I am trying to figure out what lands and 

what tribes we are talking about that would be affected by this bill. 

Has the Department produced an analysis of what tribes and tribal 

lands are affected by the Carcieri decision? 

Mr. LAVERDURE. The Department is still reviewing and ongoing 

the potential impacts of the decision, and we are approaching it on 

a case-by-case analysis at this time. 

Mrs. LUMMIS. And why is that taking so long? 

Mr. LAVERDURE. The political team, Mrs. Lummis, has just all 

been on board the last three months, and so there are career folks 

that were slowly moving toward reacting from the last Committee 

25 

hearing. And now that we are on, we are pressing to try to get 

those answers as soon as we can. 

Mrs. LUMMIS. OK. Thank you. And I would like to add that to 

the list of things that Mr. Hastings would like to see in terms of 

information from the Department. I also was in attendance at that 

April hearing, and one of our witnesses testified that since 1934 

approximately 6 million acres of land had been acquired in trust 

for American Indian tribes. Do you think that is a good ballpark 

number? 

Mr. LAVERDURE. Mrs. Lummis, at least approximately some 6 to 

7 million may have been added during that time, but that number 

also doesn’t take into account the shift from fee to trust and then 

trust to fee. And in CFR Part 152, there is oftentimes as many 

trust parcels going into fee and a loss of that base. So it just takes 

into account the positive number, but it is not adjusted for the negative. 

Mrs. LUMMIS. OK. So it is a gross number rather than a net 

number. 

Mr. LAVERDURE. That is correct. 

Mrs. LUMMIS. It is a gross number as to the trust lands that 

were added? 

Mr. LAVERDURE. Yes. That is correct. 

Mrs. LUMMIS. But it doesn’t net out lands that were converted 

from trust to fee? 

Mr. LAVERDURE. That is correct. 

Mrs. LUMMIS. OK. In your testimony, you asserted that the 

Carcieri decision was not consistent with the policy and ability of 

our nation to protect a suitable land base for Indian tribes, and I 

am trying to understand that statement accurately. Isn’t Congress 

still able as the legislative arm of government to recognize a specific tribe and authorize the Secretary to take lands into trust on 

behalf of that tribe? 

Mr. LAVERDURE. Yes, Congress has the power to do that. 

Mrs. LUMMIS. OK. So you are just referring when you say it is 

inconsistent with the policy and ability of our nation to protect a 

suitable land base for Indian tribes, you mean our nation as reflected in the Department’s authority, is that correct? 

Mr. LAVERDURE. Well, Mrs. Lummis, it is actually both political 

branches, the executive and congressional, because the Supreme 

Court historically has deferred to the political branches on recognition and not entered into the fray to say whether in fact. Typically 

a court could recognize as well and has done in the past but not 

very recently. So this decision runs contrary to that deference given 

to the political branches. 

Mrs. LUMMIS. So, once again, are you suggesting that the decision leaves out the executive and the legislative branch and leaves 

it to the courts, that only the courts under the decision are now in 

a position to make those determinations? 

Mr. LAVERDURE. No, not at all, Mrs. Lummis. All three branches 

of government, as Congress said in 1994, have been able to provide 

some type of recognition, but it has typically been through Congress and has evolved into a delegation over to the executive. 

26 

Mrs. LUMMIS. OK. Now I am going in circles here. What does the 

Carcieri decision say with regard to authority to designate? That 

it is only with the legislative branch now? 

Mr. LAVERDURE. It calls into question the executive, the Secretary of the Interior’s authority under Section 5 of the IRA when 

a tribe would not be under Federal jurisdiction in 1934. 

Mrs. LUMMIS. OK. Now thanks. That is what I thought, and then 

I got to spinning there for a minute. I have heard the concern that 

the legislation we are receiving and looking at today could call into 

question the numerous Indian Claims Settlement Acts that have 

been negotiated by Congress, tribes and individual states. Do you 

agree that there is a potential impact to enacting this legislation 

before us today? 

Mr. LAVERDURE. I am sorry, Mrs. Lummis, that the decision 

would call into question any claims, Indian claims, that were out 

there previously that had been settled by the government? 

Mrs. LUMMIS. Yes, and negotiated by Congress, tribes and states. 

So do you think that this legislation that we are looking at now impacts those previously negotiated matters under the Indian Claims 

Settlement Act? 

Mr. LAVERDURE. If it is under the 1946 Indian Claims Commission Act and dealing with land issues, I do not think, but I would 

have to consult my lawyers, but my gut reaction is that Congress 

has already decided that and that that was not mentioned in the 

Carcieri opinion itself. 

Mrs. LUMMIS. Great. OK. Thank you. Thanks, Mr. Chairman. I 

yield back. 

Mr. KILDEE. The Chair thanks the gentlelady from Wyoming. I 

have been informed that we may have votes in a few minutes, but 

I first of all would like to thank the gentleman from the Interior 

Department for his testimony. And we may want to submit, and all 

Members will have the right to submit, further questions to you for 

response to this Committee. And we will allow 10 days for submission of further questions or clarifications. And we thank you very 

much for your testimony. 

We will start the next panel, and we may be interrupted by a series of votes on the Floor, but let us try to start questions. We will 

call to the witness table The Honorable Bill Iyall, Chairman of the 

Cowlitz Indian Tribe, Longview, Washington; The Honorable Janice 

Mabee, Chairman, the Sauk-Suiattle Indian Tribe, Darrington, 

Washington; The Honorable Sandra Klineburger, Chairwoman, 

Stillaguamish Tribe of Indians, Arlington, Washington; The Honorable Richard Blumenthal, Attorney General, Office of the Attorney 

General, Hartford, Connecticut; Mr. Steven Woodside, Sonoma 

County, Somerset, on behalf of the California State Association of 

Counties, Sacramento, California; Mr. Riyaz Kanji of Kanji & 

Katzen on behalf of The Grand Traverse Band of Ottawa and 

Chippewa ́ Indians in Michigan. 

And they may step forward and proceed in the order in which I 

called their names. 

27 

STATEMENT OF THE HONORABLE BILL IYALL, CHAIRMAN, 

COWLITZ INDIAN TRIBE, LONGVIEW, WASHINGTON 

Mr. IYALL. Good morning, Mr. Kildee, Ranking Member Hastings 

and honorable members of the Committee on Natural Resources. 

My name is William Iyall. I am Chairman of the Cowlitz Indian 

Tribe in Washington State. I want to thank you for the opportunity 

to talk to you about the havoc that the Supreme Court caused with 

its decision on Carcieri v. Salazar. 

It is not just for the Cowlitz Indian tribe but for landless and disadvantaged tribes that I urge Congress and the Department of the 

Interior to take decisive action to make clear that all Federally recognized tribes will be treated equally under the Indian Reorganization Act. 

The Constitution makes clear that all Indian tribes are under the 

jurisdiction of the U.S. Congress, including the meaning that they 

are under at all times. Further, Federal statutory and case law 

makes clear that the tribe is subject to Congress’ jurisdiction even 

if formal Federal recognition has not been extended to that tribe. 

Finally, the Congress amended the IRA in 1994 explicitly to instruct the Federal agencies to treat all tribes equally under the 

law. Despite all these well established legal principles, the Carcieri 

decision has caused such widespread confusion and consternation 

that Interior appears to have suspended all fee to trust applications, the processing of those, for all tribes that were not formally 

recognized in 1934. 

For a landless tribe like the Cowlitz, this has been a devastating 

turn of events. It is important to know a few historical facts about 

my tribe. We were first recognized by the United States in land 

session treaty negotiations in 1855. Because my ancestors refused 

to move to another tribe’s reservation in another part of the State 

of Washington, the United States extinguished all of our original 

title without reserving any land for our tribe. In the 1930s, the BIA 

refused to let us adopt an IRA Constitution because we had no reservation. 

As a result, over the course of time, the BIA came to classify us 

as an unrecognized tribe even though we had a long, continuous 

history of interaction with Congress and Interior. In 1977, we petitioned Interior to restore our recognition. After a 25-year administrative ordeal, in January 2002, we were restored to Federal recognition through the Federal acknowledgment process. On the 

same day, we asked Interior to use its authority under the IRA to 

acquire trust land so the tribe could have its own reservation. 

In January of this year, after having spent seven years and millions of borrowed dollars to navigate the fee to trust and reservation proclamation processes, my tribe’s applications were finally 

ready to go. A month later the Supreme Court handed down the 

Carcieri decision. It has been a devastating experience. 

In June, we submitted a lengthy analysis demonstrating that as 

a matter of law my tribe was under Federal jurisdiction when the 

IRA was enacted in 1934 even though we were not formally recognized at that time. We submitted over 260 Federal records demonstrating that not only the Federal government had jurisdiction as 

a legal matter but also that Interior was in fact exercising jurisdiction during that time period. 

28 

Yet, in five months since we made that submission, we have 

heard very little from Interior and we nearly lost hope. If resolving 

the Carcieri debacle is one of Interior’s priorities, that is difficult 

to see. While we await a decision, interest on the money we had 

to borrow to buy land and complete the fee to trust process continues to accrue at an alarming rate. 

Further, banks and lenders have become wary of loaning any 

new money to tribes unrecognized in 1934 because of the uncertainty Carcieri has created. Without the help of Congress and Interior, our debts will continue to mount. Our ability to exercise true 

self-determination will continue to be compromised. Soon another 

year will past and we will lose more elders who like my predecessor, Chairman John Barnett, he passed away without having set 

foot on a reservation, a Cowlitz reservation. 

Having played by the rules for so many years with our pending 

application, it is fundamentally unfair to change the rules for our 

tribe now. If Congress and Interior fail to address the very real 

mischief caused by Carcieri, the Cowlitz tribe may forever be landless and forever be treated as a second-class tribe by the very Federal government that is supposed to act as its trustee. I would be 

happy to answer any questions. Thank you. sir. 

Mr. KILDEE. Mr. Iyall, we very much appreciate your testimony. 

We have a problem on the Floor right now. We will have a series 

of votes starting now, and there will be four votes I believe. Sometimes we talk between votes, so it will probably be an hour. And 

rather than to have you take an early lunch or something like that, 

I think we will stand in recess for an hour. I apologize for that, but 

that is the Congressional way down here. We just never know 

when we are going to have votes on the Floor. So I apologize for 

that, but we will be back at least within an hour to resume this 

hearing. And I thank you for your indulgence. 

[The prepared statement of Mr. Iyall follows:] 

Statement of The Honorable William Iyall, Chairman, 

The Cowlitz Indian Tribe of Washington 

Good afternoon Chairman Rahall, Vice Chairman Hastings, and honorable members of the Committee on Natural Resources. My name is William Iyall, and I am 

Chairman of the Cowlitz Indian Tribe of Washington State. I want to thank you for 

the opportunity you have given me to talk with you today about the havoc the Supreme Court has caused with its decision in Carcieri v. Salazar. It is not just for 

the Cowlitz Indian Tribe, but for all landless and disadvantaged tribes, and for all 

of Indian Country, that I urge the United States Congress and the United States 

Department of the Interior to waste not even one more minute before taking decisive action to make clear that all federally recognized tribes will be treated equally 

under the Indian Reorganization Act (IRA). 

Executive Summary 

The United States Constitution makes perfectly clear that all Indian tribes are 

under the jurisdiction of the United States Congress—i.e., are ‘‘under federal jurisdiction’’—at all times. Further, a long history of federal statutory and case law 

makes clear that a tribe is subject to Congress’ jurisdiction even if formal federal 

recognition has not been extended to that tribe. Finally, Congress amended the IRA 

in 1994 explicitly to instruct the federal agencies to treat all tribes equally under 

the law. Despite all of these well-established legal principles, the Carcieri decision 

has caused such widespread confusion and consternation that the Department of the 

Interior appears to have suspended processing fee-to-trust applications for all tribes 

that were not formally recognized in 1934. For a landless tribe like the Cowlitz, this 

has been a devastating turn of events. 

29 

A more detailed history of the Cowlitz Indian Tribe is provided in an Appendix 

to this testimony, but at a minimum it is important to know a few historical facts 

about my Tribe. The Cowlitz Indian Tribe was first recognized by the United States 

in land cession treaty negotiations that took place in 1855. Because my ancestors 

refused to be removed to another tribe’s reservation in a different part of what 

would become Washington State, the United States simply extinguished all of Cowlitz’s aboriginal title by Executive Order without reserving any lands for our use. 

In the 1930s, the Bureau of Indian Affairs refused to let us adopt an IRA constitution because we had no reservation. As a result, over the course of time, the Bureau 

came to classify the Cowlitz as an ‘‘unrecognized’’ tribe even though we had had a 

long, continuous history of interaction with the United States Congress and with the 

Department of the Interior. 

In 1977 we petitioned the Department to restore our recognition. After a 25-year 

administrative ordeal, in January 2002 the Cowlitz Indian Tribe was restored to 

federal recognition through the Department’s Federal Acknowledgement Process. On 

the very same day on which the Tribe’s recognition was restored, the Tribe petitioned the Secretary of the Interior to use his authority under Section 5 of the 

Indian Reorganization Act (IRA) to acquire trust title to land in Clark County, 

Washington so that the Tribe could have a reservation there. I should mention that 

in 2005, we received a legal opinion from the federal government that confirms that 

we have strong historical and modern ties to the area in which our Clark County 

land is located. Letter from Penny J. Coleman, NIGC Acting General Counsel, to 

Chairman Philip N. Hogen, at 11 (November 22, 2005) (‘‘[U]nquestionable parts of 

the historical record establish that the Cowlitz Tribe, throughout its history, used 

the Lewis River Property area for hunting, fishing, frequent trading expeditions, occasional warfare, and if not permanent settlement, then at least seasonal villages 

and temporary camps.’’). 

After having spent nearly seven years (and multiple millions of borrowed dollars) 

to navigate the fee-to-trust and reservation proclamation processes, in late January 

my Tribe’s fee-to-trust and reservation proclamation applications, finally, were 

poised for action by the Department. A month later, the Supreme Court handed 

down the Carcieri decision. For us, it has been a devastating—and surreal—experience ever since. In June of this year we submitted a lengthy legal analysis (which 

has been provided to Committee staff in its entirety) demonstrating that as a matter 

of law my Tribe was under federal jurisdiction when the Indian Reorganization Act 

was enacted in 1934, even though we were not formally federally recognized. We 

also submitted over 260 documents from federal records demonstrating that not only 

did the federal government have jurisdiction as a legal matter, but also that the Department of the Interior was in fact exercising jurisdiction during that time period. 

Yet five months after we made that submission, we have been given no indication 

of what standards the Department might impose, or what additional information it 

might need. We have been given no timeline as to when we might expect a decision 

from the Department. The truth is that we have heard so little from the Department during the eight months since Carcieri was handed down, that we have nearly 

lost hope. If resolving the Carcieri debacle is one of the Department’s priorities, we 

are unaware of it. 

In the meantime, interest on the money we had to borrow to buy land and complete the fee-to-trust process continues to accrue at an alarming rate. (No federal 

funds have been appropriated to acquire land for Indians since the 1950s, so landless tribes like ours have no other option but to borrow.) New money to borrow is 

almost impossible to find, as banks and lenders have become wary of loaning money 

to tribes unrecognized in 1934 because of the uncertainty Carcieri has created. And, 

we have entirely missed the opportunity to participate in any reservation-based 

Stimulus (The American Recovery and Reinvestment Act of 2009) funding. This is 

no small loss. Unlike landed tribes, we have had precious little opportunity to participate in the federal government’s economic recovery efforts. 

Without immediate help from Congress and from the Department of the Interior, 

our debts will continue to mount. Our inability to apply for reservation-based funding will be unresolved. Our ability to exercise true self determination will continue 

to be compromised. Eventually, the work we have done in compliance with the National Environmental Policy Act will become outdated and require new work—and 

new funding. Soon another year will pass and we will lose more elders, who, like 

my predecessor, Chairman John Barnett, passed away without ever having set foot 

on a Cowlitz reservation. If the Legislative and Executive branches fail to address 

the very real mischief caused by the Judicial branch, the Cowlitz Indian Tribe may 

forever continue to be landless and forever be treated as a second-class Tribe by the 

very federal government that is supposed to act as its trustee. With genuine respect, 

and with gratitude for this Committee’s good work on the two ‘‘Carcieri’’ fix bills 

30 

currently pending before it, the Cowlitz Indian Tribe urges the United States Congress and the United States Department of the Interior to take decisive, politically 

courageous action now to ensure that no tribe will ever be treated as inferior to another tribe under the law. 

Overview of the Carcieri Decision and Relevant Law 

In Carcieri v. Salazar, 555 U.S.ll, 129 S.Ct. 1058 (2009), the Supreme Court 

held that the Secretary of the Interior did not have authority under Section 5 of 

the IRA to acquire trust title to land for the Narragansett Indian Tribe because that 

tribe was not ‘‘under Federal jurisdiction’’ when the IRA was enacted in 1934. The 

Court relied primarily on language elsewhere in the IRA that defines ‘‘Indians’’ as 

‘‘all persons of Indian descent who are members of any recognized Indian tribe now 

under Federal jurisdiction....’’ In concluding that the Narragansett were not ‘‘under 

federal jurisdiction’’ in 1934, the Court simply accepted the State of Rhode Island’s 

uncontested assertion that that was the case. The Court’s acceptance of the state’s 

unsupported assertion is very distressing because the question of whether the Narragansett were under federal jurisdiction was never briefed by any party to the litigation. As a result, the decision seems to have created a great deal of uncertainty 

as to what ‘‘under federal jurisdiction’’ means and which tribes were under federal 

jurisdiction in 1934. 

This uncertainty can be resolved by looking to the United States Constitution, 

which endows the United States Congress with plenary authority—i.e., plenary legal 

jurisdiction—over all Indian tribes. It is true that Congress sometimes chooses to 

exercise its authority over Indian tribes in greater or lesser ways, or sometimes declines to exercise its authority at all. But because it is constitutionally-endowed, 

Congress’ jurisdiction over an Indian tribe cannot cease to exist unless, as was the 

concern of the people who wrote the IRA, the tribe itself has ceased to exist. Accordingly a tribe that can be shown to have existed as a tribe in 1934, by definition, 

is a tribe that was under federal jurisdiction in 1934 whether or not it was formally 

recognized. This analysis is supported by the concurring opinions in Carcieri, which 

make clear that federal jurisdiction and federal recognition are not one and the 

same, and recognize that a tribe under federal jurisdiction in 1934 may not have 

been federally recognized until a later time due to administrative error or other circumstances. Further support for this view is found in prior federal court analyses, 

in which courts have held that Indian tribes, although not federally recognized, are 

entitled to the benefits and protections of certain federal statutes and remain under 

the continuous legal jurisdiction of Congress even if there have been lapses in the 

Legislative or Executive Branch’s exercise of that federal jurisdiction. 

This continuing, uninterrupted jurisdiction over Indian tribes is further underscored by Congress’ authority to terminate federal recognition or supervision of 

tribes, and then later to restore federal recognition to such tribes. If Congress did 

not have continuing jurisdiction, restoration of federal recognition would not be possible. Similarly, the Department of the Interior’s Federal Acknowledgement Process 

(FAP) (25 C.F.R. Part 83) also is based on the United States’ continuing federal jurisdiction over all tribes because Interior relies on general authority delegated by 

Congress when it administratively extends federal acknowledgment to a tribe. In 

fact, all tribes that have been recognized through FAP, including the Cowlitz, are 

Indian groups which continuously have maintained their tribal identities since the 

time of first non-Indian contact or since previous federal acknowledgment, because 

the Part 83 regulations explicitly require this. Since the Department already has 

found the FAP tribes to have existed as bona fide tribal entities in 1934, they were, 

by definition, under federal jurisdiction in 1934. 

Finally, Congress itself directed in the 1994 Federally Recognized Indian Tribe 

List Act that federal agencies may not ‘‘differentiate between federally recognized 

tribes as being ‘created’ or ‘historic’’’ (see H. Rep. 103-781, at 3-4), and it prohibited 

federal agencies from classifying, diminishing or enhancing the privileges and immunities available to a recognized tribe relative to those privileges and immunities 

available to other Indian tribes in its 1994 amendment to the IRA, codified at 25 

U.S.C. § 476(f). 

We urge that the Carcieri opinion should be interpreted in a way that is consistent with these well-established, bedrock principles of federal Indian law. Any 

tribe that maintained tribal relations in 1934—any tribe that truly existed as a 

tribe in 1934—is a tribe that was under federal jurisdiction. Because the Cowlitz 

Indian Tribe was under federal jurisdiction in 1934, and because the Cowlitz Indian 

Tribe is now federally recognized, the Secretary has authority under Sections 5 and 

7 of the Indian Reorganization Act to acquire trust title to the Tribe’s Clark County 

land and to issue a reservation proclamation for that same land. 

31 

Administrative Fix: The Department of the Interior 

Based on the fundamental principles of federal Indian law and existing statutory 

authority discussed above, the Department continues to have authority to take land 

into trust for tribes that are federally recognized today even if they were not federally recognized in 1934. Yet in the eight months since the Court’s decision, the Department effectively has placed a moratorium on acquiring trust land for tribes that 

were not recognized in 1934. While we commend Interior for its initial outreach to 

tribes to discuss Carcieri and its potential impacts, we are very concerned that the 

Department has not taken any subsequent steps to act on long-pending fee-to-trust 

applications such as those submitted by the Cowlitz Tribe nearly eight years ago. 

The Department must implement the law, and must do it consistent with its trust 

responsibility. Every day it does not, it treats the Cowlitz Indian Tribe in a manner 

that is unequal to every other tribe for which the Department has acquired land 

in the past, including other FAP tribes. 

Legislative Fix: H.R. 3697 and H.R. 3742 

While we hope that Interior will faithfully apply the law and continue to exercise 

its authority and trust responsibility, there is no doubt but that, absent action from 

Congress, the Department’s exercise of its IRA authority will engender years of 

needless litigation, and tribes, the federal government, states, local governments 

and private parties will suffer the exorbitant costs associated therewith. Accordingly 

we implore this Congress to enact legislation to make crystal clear that the IRA is 

applicable to all federally recognized tribes regardless of the manner or date on 

which they received federal recognition. Congress must reconfirm the fundamental 

legal principles as well as the basic policies underlying passage of the IRA, and 

must confirm that the Department’s implementation of the IRA over the past threequarters of a century has been proper and entirely in keeping with those well-established legal principles and policies. Failure to act will result in unconscionable uncertainty, delay, and hardship for Indian country, and in particular, for landless 

tribes like Cowlitz. 

Finally, Congress (and the Department of the Interior) must not let opponents of 

Indian gaming hijack the Carcieri issue to further their own political goals. The 

rhetoric about ‘‘reservation shopping’’ is particularly offensive to a tribe like mine, 

which has no reservation at all. Concerns about Indian gaming issues are not appropriately addressed in the context of a Carcieri fix, and most certainly are not appropriately addressed by avoiding fee-to-trust decisions altogether. The Supreme 

Court’s decision in Carcieri adversely affects not only acquisition of land in trust for 

tribes and individual Indians, but also the Secretary’s authority to proclaim Indian 

reservations, to adopt tribal constitutions, and to create tribal corporations. As our 

trustee, we beg you to reject efforts to conflate Carcieri issues with gaming issues. 

Conclusion 

On behalf of the Cowlitz Indian Tribe I want to underscore how much we appreciate the efforts made by this Committee to address the Court’s misguided and confusing decision. I have no choice but also to stress, however, that any further delay 

in resolving the problems engendered by the Carcieri decision will have severe and 

devastating impacts on the Cowlitz Indian Tribe and others like it. Having played 

by the rules for so many years with our pending application, it is fundamentally 

unfair now to change the rules for tribes like ours. We respectfully, urgently, ask 

that the Department of the Interior use the law already available to it to resume 

processing fee-to-trust applications, and we respectfully, urgently ask Congress to 

protect us (and the United States) from noxious litigation by enacting legislation 

making clear that all tribes will be treated equally under the Indian Reorganization 

Act regardless of the time and manner in which they achieved federal recognition. 

Appendix 

Background/History of Cowlitz Tribe 

In 1846 the United States acquired the Oregon Territory from Great Britain pursuant to the Oregon Treaty. The Washington Territory was carved from the Oregon 

Territory in 1853. Less than a year after creation of the Washington Territory, the 

United States began to survey the Indian populations in western Washington to obtain land cessions from them. In 1854, Acting Commissioner of Indian Affairs 

(Charles E. Mix) instructed Washington territorial Governor Isaac Stevens to commence treaty negotiation with the Washington tribes. In February 1855, Governor 

Stevens convened treaty negotiations with the Cowlitz and other tribes at the Chehalis River Treaty Council. The purpose of these negotiations was to obtain large 

32 

land cessions from the tribes and to consolidate multiple tribes onto a smaller number of reservations. 

The Cowlitz agreed to cede lands to the United States, but treaty negotiations 

broke down because the Cowlitz refused to accept a reservation outside of its traditional territory. As a result, the Cowlitz, unlike most other Washington State tribes, 

was left without a reserved land base. When an Executive Order opened up all of 

southwestern Washington to non-Indian settlement in 1863, the Cowlitz lost possession of all of its traditional lands—despite the fact that the Tribe had not signed 

a cession treaty, the Tribe had not been compensated for those lands, and Indian 

title to those lands had never been extinguished by Congress. Within a short period 

of time, the Cowlitz Tribe became landless and its members were driven and scattered throughout Washington and Oregon. 

By the early twentieth century the federal government took the position that because the Tribe was landless, the federal government no longer owed a fiduciary 

duty to the Tribe and the United States ceased to acknowledge a government-to-government relationship with the Cowlitz Tribe. During this same time period in the 

early 1900s, my Tribe reorganized, elected a governing body, and initiated a series 

of efforts to seek compensation and lands to replace its aboriginal territory that had 

been taken. Several bills were introduced in the 1920s and 30s, most of these, by 

my grandfather Frank Iyall, that would have given the Court of Claims jurisdiction 

to hear the Tribe’s claims against the United States, including one vetoed by President Coolidge. But it was not until 1946 when Congress set up the Indian Claims 

Commission (‘‘ICC’’) to hear tribal claims against the United States that we had a 

forum in which to pursue our claims. We filed suit in 1951, and in 1969, the ICC 

determined that we historically had exclusive use and occupation of an extensive 

area of southwest Washington. In 1973, the ICC granted a final compromise settlement in the amount of $1,500,000, to compensate the Tribe for the taking of those 

exclusively-used lands (this amounted to about 90 cents per acre). 

In the 1970s and 1980s my Tribe insisted that federal legislation authorizing the 

ICC award include a provision setting aside money for tribal land acquisition so 

that we could buy back land we had lost. But the Department of Interior consistently opposed various versions of settlement legislation over many years, objecting 

to the use of settlement funds for land acquisition because the Cowlitz Tribe was 

not federally recognized. In 1975, my Tribe had filed a petition for recognition with 

BIA, but the federal administrative acknowledgment process was lengthy and expensive (and funded entirely by Tribal members donations), and it was not finally 

completed until January 4, 2002, more than 25 years later. As a result, it was not 

until 2004, two years after we gained federal recognition and twenty-one years after 

the ICC award, that Interior withdrew its objections and allowed our ICC settlement legislation to move forward with a land acquisition provision intact. 

On the same date that we were recognized, January 4, 2002, we submitted our 

initial application to have land in Clark County, Washington taken in trust on behalf of the Cowlitz Indian Tribe. Today, almost eight years later, we still do not 

have that land or any land in trust. The fee-to-trust process has been very lengthy 

and very expensive, as demonstrated by the timeline attached to this testimony. 

When we first started, BIA told us that an environmental assessment would be sufficient for NEPA compliance, so we completed an EA. But later on, BIA decided that 

it needed to prepare a much more lengthy and detailed environmental impact statement, or EIS, to evaluate the environmental impacts for fee-to-trust acquisitions like 

ours, so we switched gears and paid for BIA’s preparation of an EIS. The preparation of the EIS alone cost over $ 3 million and took nearly four years to complete, 

including extended public comment periods at every step in the process, and extra 

public meetings, beyond what is required by NEPA. BIA also has made a number 

of changes to its internal requirements and guidance for fee-to-trust acquisitions 

during the time our application has been pending, but at every turn, we have done 

what is necessary to follow whatever the rules are—in fact, we have gone beyond 

what is required. When the BIA Region finally sent a decision package to BIA Headquarters in Washington in January of this year, we thought we were near the finish 

line. Unfortunately, in February the Supreme Court issued its decision in Carcieri 

v. Salazar, which has thrown decades of well-established Indian jurisprudence and 

Departmental practice into question, and appears to have paralyzed the Department 

to such a degree that it has been unable to act on pending fee-to-trust applications. 

[Recess.] 

33 

Mr. KILDEE. The Committee now will resume its deliberations. 

We now call upon The Honorable Janice Mabee, Chairman of the 

Sauk-Suiattle Indian Tribe, Darrington, Washington. 

STATEMENT OF THE HONORABLE JANICE MABEE, CHAIRMAN, 

SAUK-SUIATTLE INDIAN TRIBE, DARRINGTON, WASHINGTON 

Ms. MABEE. Thank you, Mr. Chairman. Mr. Chairman, members 

of the Committee, thank you for the opportunity to provide testimony on behalf of the Sauk-Suiattle Indian tribe in support of 

clarifying the Indian Reorganization Act of 1934 through 

H.R. 3742. 

In February of 2009, the Supreme Court issued the decision in 

Carcieri v. Salazar that is creating significant confusion in an important area of Federal Indian law, the Indian Reorganization Act 

of 1934. The Supreme Court overturned 70 years of longstanding 

interpretation and held that the phrase ‘‘now under Federal jurisdiction’’ limits the Department of the Interior’s authority to provide 

benefits under the IRA to only those tribes under Federal jurisdiction on June 8, 1934. 

The passage of the IRA in 1934 marked a dramatic change in 

Federal Indian policy. Congress shifted from policies intended to 

destroy the Indian tribes to in favor of legislation to revitalize tribal governments and Indian culture and restore tribal land bases 

that had been decimated by prior Federal policies. 

The Carcieri decision is at odds with Congress’ intent to restore 

tribal self-determination. In particular, this decision runs counter 

to Congress’ intent in the 1994 amendments to the IRA, which provides equal treatment to all Indian tribes regardless of how or 

when they received Federal recognition. 

The Sauk-Suiattle tribe is a tribe that has been adversely impacted by this confusion. We are located in the Cascade Mountains 

of northwest Washington near the confluence of the Sauk and the 

Suiattle rivers where we have lived for countless generations. The 

tribe has adjudicated rights under the Point Elliott Treaty, signed 

by Aku Mahu. In 1913, Congress appropriated funds for the purchase of lands to be held in trust for the Sauk-Suiattle tribe. 

Long before there were any white people in the area, we lived on 

both sides of the Sauk River at Sauk Prairie. This was the site of 

one of our major villages. However, in the 1880s, the United States 

gave our fertile lands at Sauk Prairie to non-Indians, who burned 

our long houses that had stood there for generations, leaving our 

people landless and scattered. Many tribal members, including my 

great grandparents, retreated to the more remote lands up the 

Suiattle River, where some members built homes. 

I am the great-great granddaughter of Captain Moses, a hereditary Chief of the Sauk-Suiattle. I grew up on the Suiattle River on 

a trust allotment which the United States in an effort to address 

the displacement from our land issued patents to us in the early 

1920s. This was long before the passage of the IRA in 1934. I vividly remember bathing every morning in the icy glacier runoff of 

the Suiattle River, hiding in huge cedar root baskets woven by my 

great grandmother, who helped raise me, learning to gather and 

weave and skin game. We lived by fishing, hunting and gathering. 

34 

In addition to the destruction of one of the Sauk-Suiattle tribe’s 

major villages, the tribe suffered in another way. Ignorance by 

some led to the belief that the Sauk-Suiattle were not a separate 

tribe. We existed deep in the Cascade Mountains, a uniquely distinct tribe, referred to by the BIA as a traditional tribe. Little was 

known about our people, and nonresearchers for their convenience 

often lumped us in with other tribes. But over the decades, the 

tribe continued to exist and to live in the areas of its homeland despite the challenges not faced by the larger tribes that were given 

substantial reservations. 

In a 1972 letter from the Deputy Commissioner, the tribe was 

described as having an organizational status that was traditional 

in nature. On April 6, 1935, the tribe voted to adopt the IRA. In 

1975, the tribe adopted a constitution and was approved by the 

Secretary of the Interior under the IRA. In 1982, two small parcels 

of land, totaling 23 acres, were taken into trust for the tribe and 

designated as our reservation. The land, however, is broken into 

two parcels, miles apart, and is insufficient for the tribe’s housing, 

for tribal government facilities and for economic development and 

is threatened by floods from the Sauk River, which has been designated as wild and scenic. 

Despite the treaties dating back to the mid 18th century, despite 

the 1913 Congressional appropriation, despite the allotments dated 

to the earliest 20th century and despite an April 6, 1935, vote by 

the tribe to accept the IRA in order to organize under the Act, the 

Sauk-Suiattle tribe is being adversely impacted by the Carcieri decision. What more do you want to do to us? 

And now, because of the confusion of the Carcieri decision and 

unwillingness of the regional solicitor to make decisions without 

written guidance from the Department of the Interior, a simple fee 

to trust application for a 1.64 acre parcel of land adjacent to our 

reservation has been put on hold. 

The Sauk-Suiattle tribe does not have a casino. We are simply 

trying to acquire enough land to provide homes for our members 

and sites for tribal governmental facilities and economic development so that our tribal members and their families can obtain employment and receive tribal government services near their homes. 

We have built 20 homes. 

Mr. KILDEE. If the gentlelady would try to terminate her testimony. Your time has expired. You may finish up with a couple of 

sentences. 

Ms. MABEE. OK. We have built 20 homes on our reservation, but 

they are insufficient to meet our tribal needs. It is crucial to clarify 

that the IRA is not related to Indian gaming. Indian gaming is regulated under the Gaming Regulatory Act where Congress restricted 

gaming to lands in 1988. This issue is much broader. The IRA is 

a toolbox organized for tribal communities and building economic 

growth. We are concerned that these tools are weakened and that 

the Indian reservations and cities continue and states that surround them need the economic development the most. 

Mr. KILDEE. Thank you very much for your testimony. Your entire testimony will be made part of the record. 

Ms. MABEE. Thank you. 

[The prepared statement of Ms. Mabee follows:] 

35 

1 United States v. Washington, 384 F.Supp. 312 (W.D.Wash. 1974). 2 Act of June 30, 1913 (38 Stat. 101). Although the legislation refers to the ‘‘Skagit Tribe of 

Indians,’’ that was not the specific name of any tribe, and was understood by the Department 

of the Interior to refer to both the Sauk-Suiattle Tribe and the Upper Skagit Tribe. 

Statement of The Honorable Janice Mabee, 

Chairman of the Sauk-Suiattle Indian Tribe 

Mr. Chairman, members of the Committee, thank you for the opportunity to provide testimony on behalf of the Sauk-Suiattle Indian Tribe in support of clarifying 

the Indian Reorganization Act of 1934 through H.R. 3742, ‘‘To amend the Act of 

June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land 

into trust for Indian tribes.’’ 

In February of 2009, the Supreme Court issued a decision in Carcieri v. Salazar 

that is creating significant confusion in an important area of federal Indian law, the 

Indian Reorganization Act of 1934 (IRA). The Supreme Court overturned seventy 

(70) years of longstanding interpretation and held that the phrase ‘‘now under Federal jurisdiction’’ limits the Department of Interior’s authority to provide benefits 

under the IRA to only those Indian tribes ‘‘under federal jurisdiction’’ on June 8, 

1934. 

The passage of the IRA in 1934 marked a dramatic change in federal Indian policy. Congress shifted from policies intended to destroy Indian tribes in favor of legislation to revitalize tribal governments and Indian culture, and to restore tribal land 

bases that had been decimated by prior federal policies. The Carcieri decision is at 

odds with Congress’ intent to restore tribal self-determination. In particular, this decision runs counter to Congress’ intent in the 1994 amendments to the IRA which 

provide equal treatment to all Indian tribes regardless of how or when they received 

federal recognition. 

The Sauk-Suiattle Indian Tribe is a tribe that has been adversely impacted by 

this confusion. We are located in the Cascade Mountains of northwestern Washington near the confluence of the Sauk and Suiattle Rivers, where we have lived 

for countless generations. The Tribe has adjudicated treaty rights under the 1855 

Point Elliott Treaty. 1 And in 1913, Congress appropriated funds for the purchase 

of lands to be held in trust for the Sauk-Suiattle Tribe. 2

Long ago, before there were any white people in the area, we lived on both sides 

of the Sauk River at Sauk Prairie. This was the site of one of our major villages. 

However, in the 1880’s, the United States gave our fertile lands at Sauk Prairie to 

non-Indians, who burned the Tribe’s longhouses that had stood there for generations, leaving my people landless and scattered. Many tribal members, including my 

great-grandparents, retreated to more remote land up the Suiattle River, where 

some members built houses. 

I grew up on the Suiattle River, on a trust allotment which the United States, 

in an effort to address the displacement from our land, issued trust patents to us 

in the early 1920’s. This was long before the passage of the Indian Reorganization 

Act of 1934. I vividly remember bathing every day in the icy glacier runoff of the 

Suiattle River, hiding inside huge cedar root baskets woven by my great grandmother who helped raise me, learning to gather and weave and skin game. We lived 

by fishing, hunting and gathering. 

In addition to the destruction of one of the Sauk-Suiattle Tribe’s major villages, 

the Tribe suffered in another way. Ignorance led to the belief by some that SaukSuiattle was not a separate tribe. We existed deep in the Cascade mountains, a 

uniquely distinct tribe, referred to by the BIA as a ‘‘traditional tribe.’’ Little was 

known about our people and non-Indian researchers, for their convenience, often 

lumped us in with other tribes. But over the decades, the Tribe continued to exist 

and to live in the area of its homeland, despite the challenges not faced by larger 

tribes that were given substantial reservations. In a 1972 letter from the Deputy 

Commissioner, the Tribe was described as having an ‘‘organizational status’’ that 

was ‘‘traditional in nature.’’ On April 6, 1935 the Tribe voted to adopt the IRA. In 

1975, the Tribe adopted a Constitution that was approved by the Secretary of the 

Interior under the authority of the IRA. 

In 1982, two small parcels of land totaling about 23 acres were taken into trust 

for the Tribe and designated as our Reservation. That land, however, is broken into 

two parcels miles apart and is insufficient for tribal housing, for tribal government 

facilities, and for economic development, and is threatened by flooding from the 

Sauk River, which has been designated as ‘‘wild and scenic.’’ 

Despite treaty rights dating from the mid-eighteenth century, despite the 1913 

Congressional appropriation, despite allotments dating from the early twentieth century, and despite an April 6, 1935 vote by the Tribe to accept the IRA, in order to 

36 

‘‘organize,’’ under the Act, the Sauk-Suiattle Tribe is being adversely impacted by 

the Carcieri decision. What more do you want to do to us? 

And now, because of the confusion generated by the Carcieri decision and the unwillingness of the Regional Solicitor to make decisions without written guidance 

from the Department of the Interior a simple fee to trust application for a 1.64 acre 

parcel of land adjacent to the reservation, has been put on hold. 

The Sauk-Suiattle Tribe does not have a casino. We are simply trying to acquire 

enough land to provide homes for our members and sites for tribal government facilities and economic development so that tribal members and their families can obtain employment and receive tribal government services near their homes. We have 

built twenty houses on our reservation, but they are insufficient to meet tribal demand and are threatened by flooding. 

We feel it is critical to clarify that the IRA is not related to Indian gaming. Indian 

gaming is regulated under the Indian Gaming Regulatory Act, (IGRA) where Congress restricted gaming on lands acquired after 1988. The issue is much broader and 

more fundamental. The IRA is a toolbox for restoring tribal communities and building economic growth. We are concerned that these tools are weakened at a time 

when Indian reservations and the cities, counties and states that surround them, 

need economic aid the most. 

Tribes that were not formally ‘‘recognized’’ in 1934 typically do not have large reservations. In fact, they are the very tribes most in need of having land taken into 

trust for housing, government facilities, and economic development. By treating 

tribes formally ‘‘recognized’’ after 1934 differently than those recognized earlier, the 

Supreme Court has essentially punished the tribes who have already suffered the 

most, and who face the greatest struggle to preserve a homeland, provide government services, and foster economic development. I hope that the Committee will recognize this fundamental injustice, and will act quickly and decisively to correct it. 

The Sauk-Suiattle Tribe is very concerned that if the Carcieri decision stands 

unaddressed by Congress, it will engender confusion and litigation on a broad range 

of issues. The IRA is a comprehensive federal law that provides not only the authority of the Secretary to restore tribal lands, but also for the establishment of tribal 

constitutions and tribal business structures. Disorder in this area of the law will 

negatively affect all types of economic development, contracts and loans, tribal reservations and lands, and could negatively affect tribal and federal jurisdiction, public safety, and provision of services on reservations across the country. 

Legislation is currently pending in both the Senate and the House that would provide a solution and clarify the authority under the IRA. The Senate version, S. 1703 

sponsored by Senator Byron Dorgan, already has eight (8) co-sponsors. Two functionally identical Carcieri fixes have also received significant support in the House, 

sponsored by Representative Dale Kildee and Representative Tom Cole. 

On behalf of the Sauk-Suiattle people I urge the Committee to support this legislation. 

Thank you. 

Mr. KILDEE. Our next witness is The Honorable Sandra 

Klineburger, Chairwoman of the Stillaguamish Tribe of Indians, 

Arlington, Washington. 

STATEMENT OF THE HONORABLE SANDRA KLINEBURGER, 

CHAIRWOMAN, STILLAGUAMISH TRIBE OF INDIANS, 

ARLINGTON, WASHINGTON 

Ms. KLINEBURGER. Good afternoon. Congressman Kildee, Ranking Member Hastings and members of the Committee, thank you 

for inviting me here today to provide testimony to the Committee 

on a critical issue confronting all of Indian Country, addressing the 

Supreme Court decision of Carcieri v. Salazar. 

My name is Sandra Klineburger. I am the Chairwoman of the 

Stillaguamish tribe of Indians. Our tribal community supports both 

H.R. 3742 and H.R. 3697 because we firmly believe that Carcieri 

was wrongly decided and, more importantly, that it established 

highly problematic and ultimately unworkable American Indian 

policy. 

37 

Carcieri does not technically apply to Stillaguamish, although it 

has created legitimate issues for us. The case has created uncertainty amongst state and local governments, what the relationship 

is with tribal governments. This decision has provided opponents 

of Indian tribes with a base to hold or prolong tribal trust status 

applications. The case has potential to create unnecessary and expensive litigation for tribes across the nation. 

A little history about my tribe and who we are. My great-great 

grandfather was Chief Cha Dis. He signed our treaty, the Point Elliott Treaty, in 1855. My grandmother was the late Chief Esther 

Ross, who traveled these hallways, who traveled to Washington numerous times over 50 years of her life. When she grew up, she 

didn’t know she was native. She was 19 when she found out she 

was native. She came back to the Stillaguamish territory to regain 

the Stillaguamish tribe so one day her grandchildren and great 

grandchildren and generations after would have an identity. Her 

dream was to have land for housing, have the reservation, have the 

generations that would come know the hunting, know the fishing, 

know the history and know the culture. 

There are many tribes that have the economic development part 

taken care of. Our tribe is bringing back the history. This year was 

our first year of having a first salmon ceremony since generations 

past, and it is a remarkable sight to see our tribal members and 

our young children coming out, learning the songs, learning the 

dances, trying to keep our culture of our tribe alive. 

Like many tribes across this great nation, the United States of 

America, our culture is foremost the number one important to 

every tribe. The Carcieri decision impacts it in so many ways. For 

treaty tribes that are not impacted directly, there still is uncertainty of what can happen. If we put in that application, what 

issues will come about? What problems are going to be caused from 

this? 

The same issues that we are dealing with are the same issues 

that our grandparents and great grandparents dealt with already 

before us. We are here asking your help, asking you to help pass 

this. We are here asking you to understand the importance of this 

not only for our children, our grandchildren and many generations 

to come, to make sure that this here doesn’t cause a historical issue 

for them. 

Mr. Chairman, Ranking Member and Committee members, our 

tribe has created many different programs. We have a buffalo to 

help with our diabetic prevention program, help supplement for our 

elders, a transportation program to help our elders get to their 

medical, help our tribal members that do not have a vehicle or license to be able to get to work, trying to make them more self-efficient. We also have tribal members that we have to house in hotels 

because we have no land yet for a reservation for housing. This is 

not right. This is not part of what my grandmother’s dream was 

for our tribe, her people. 

One person alone fought to get this tribe together. Amongst 

many other tribes have the same type of story of history, my goal 

for our tribe is to make sure that our history and our culture is 

brought back. Being able to have land and put it into trust without 

problems is what we need. We need this to be able to not worry 

38 

about how we are going to do our housing, how we are going to protect our burial sites, and being able to have a clinic or a court system so our tribal members are protected. 

Right now the way our tribe is set up our court system is not on 

trust land. We have very little trust land, so when something happens, a domestic problem, the county can’t help because they are 

native and there are only parts of trust land that they can cover. 

This affects a wide variety of issues not only for our tribe but for 

other tribes even though we are not directly affected. As a Native 

American, issues in Indian Country affect every native, no matter 

if you are Federally recognized or not. That is part of being a Native American. 

Mr. KILDEE. If the gentlelady would take another minute or so 

to finish up her testimony. 

Ms. KLINEBURGER. I thank you for the opportunity to come here 

today and share my story with you. In addition to my oral testimony, I have submitted written testimony to this Committee with 

more detail. I am walking in the footsteps of my grandmother, 

Chief Esther Ross, and while they are too large for me to fill, I am 

compelled to be here to help finish the work she started in the 

same halls, in the same buildings. 

Unfortunately, province has brought me to D.C. to fight a battle 

similar to what she fought nearly 30 years ago. As the designated 

leader of my tribe, I ask you to assist us in declaring once and for 

all that all Indian tribes are equal by passing H.R. 3742 and 

H.R. 3697. Thank you. 

[The prepared statement of Ms. Klineburger follows:] 

Statement of The Honorable Sandra Klineburger, Chairwoman, 

Stillaguamish Tribe of Indians 

Introduction 

Good afternoon, Chairman Rahall, Ranking Member Hastings, and Members of 

the Committee. Thank you for inviting me here today to provide testimony to the 

Committee on a critical issue confronting all of Indian Country—addressing the divisive Supreme Court decision of Carcieri v. Salazar, 129 S.Ct. 1058 (2009). 

My name is Sandra Klineburger, and I am the Chairwoman of the Stillaguamish 

Tribe of Indians. Our tribal community supports both H.R. 3742 and H.R. 3697 because we firmly believe that Carcieri was wrongly decided, and more importantly, 

that it establishes highly problematic and ultimately unworkable American Indian 

policy. To be clear, as the Supreme Court in Carcieri expressly acknowledged, the 

decision does not impact the Stillaguamish Tribe. As discussed below, Stillaguamish 

has, at all relevant times, maintained a federal-tribal relationship since at least 

1855. This is well before the enactment of the Indian Reorganization Act of 1934. 

Although not directly implicated, the Stillaguamish Tribe still supports a fix to 

the problems created by Carcieri. We see the infirmity of the interpretation of the 

Indian Reorganization Act by the Supreme Court in the Carcieri decision. If this decision is not addressed, there will be ‘‘have’s’’ (those who can take land into trust) 

and ‘‘have not’s’’ in Indian Country. 

Our community knows what it is like to be part of the ‘‘have not’s.’’ For decades, 

our federal-tribal relationship was not acknowledged by the Department of Interior. 

My grandmother, Chief Esther Ross, worked tirelessly to have our Tribe’s federaltribal relationship acknowledged. After many decades of work, our tribe was successful in that endeavor. But we are mindful that Indian policy should strive to 

treat equally all tribal communities. For this and other reasons, the Stillaguamish 

Tribe strongly believes that the Carcieri decision should be addressed through legislation. 

In my testimony today, I would like to talk with you about the Stillaguamish 

tribal history and Carcieri’s technical inapplicability to Stillaguamish. Then I will 

describe the negative consequences being endured by our Tribe and all of Indian 

Country because of Carcieri. Finally, I will explain the myriad reasons why a legisVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
39 

lative fix is needed for the good of the Nation generally and Indian Country specifically. 

This Committee, I know, understands the essential nature of land to the survival 

and existence of Native American tribes, tribal sovereignty and tribal culture. Without land, tribes lack the ability to become more self-sufficient, and tribal governments cannot improve the well-being of individual tribal members. On behalf of the 

Stillaguamish Tribe of Indians, I urge you to promptly pass H.R. 3742 and/or 

H.R. 3697 to remedy the damage done by Carcieri and remove the multitude of ill 

effects currently impairing the great progress that Indian Country is prepared to 

make for all Americans and Native Americans alike. 

Carcieri Does Not Technically Apply to Stillaguamish 

At the outset, I want to make clear that Stillaguamish is technically not affected 

by Carcieri v. Salazar for several reasons. 

First, Stillaguamish signed the Treaty of Point Elliott. As made clear in United 

States v. Washington, 384 F. Supp 312 (W.D. Wash. 1974); aff’d, 520 F.2d 676 (9th 

Cir. 1975); cert. denied, 423 U.S. 1086 (1976), Stillaguamish is a party to the Treaty, and the United States is—and has been since 1855—responsible to honor and 

protect these Treaty rights. 

Second, numerous opinions from a variety of federal courts have determined that 

Stillaguamish Treaty rights vested upon execution, thereby subjecting Stillaguamish 

to federal jurisdiction since 1855. 

Third, Congress has appropriated funds to the Stillaguamish tribe for over six 

decades. This demonstrates the Federal Government’s ongoing oversight and involvement in the Stillaguamish Tribe’s affairs. At no time, has Congress terminated 

the federal jurisdiction with respect to Stillaguamish. 

Fourth, in 1980, a Solicitor’s Opinion provided a detailed analysis as to why 

Stillaguamish was subject to federal jurisdiction prior to 1934, thereby affirming 

that the Tribe was able to have land taken into trust on our behalf. See Memorandum to Asst. Sec., Indian Affairs, from Associate Solicitor, Indian Affairs, Re: Request for Reconsideration of Decision Not to Take Land in Trust for the 

Stillaguamish Tribe, October 1, 1980 (hereinafter ‘‘Solicitor’s Opinion’’). 

Finally, it is noteworthy that in both Justice Breyer’s concurring opinion and Justice Souter’s concurring/dissenting opinion in Carcieri itself, Stillaguamish’s particular history is cited as evidence of a tribe that was ‘‘under federal jurisdiction’’ 

and was merely administratively overlooked by the Federal Government. 

In short, it is clear from the record, that Stillaguamish has at all times maintained an unbroken relationship with the United States. Indeed, the Supreme Court 

expressly recognized that relationship in Carcieri. Nevertheless, we support a 

Carcieri fix. Such legislation would remove any extant uncertainties and unquestionably treat all tribes on equal footing. That is sound Federal Indian policy. 

Stillaguamish Tribal History and Recognition 

As stated above, my grandmother, Chief Esther Ross, devoted her entire life to 

ensuring that the Stillaguamish people were acknowledged as a Native nation by 

the Federal Government. This history is relevant to summarize because it exhibits 

the level of detailed scrutiny Stillaguamish underwent in confirming the federaltribal relationship. 

In 1855, Chief Cha-Dis—the Chief of Stillaguamish at that time—signed the Treaty of Point Elliott along with several other tribes in present-day Washington state. 

See Treaty of Point Elliott, U.S.-Duwamish, Suquamish, and other tribes, Jan. 22, 

1855, 12 Stat. 927. Ratified in 1859, the Treaty ceded Stillaguamish aboriginal land 

to the Federal Government in exchange for money, reservation land, fishing rights, 

the protection of the United States, and a number of other provisions. Based on the 

Treaty of Point Elliott and the on-going commitments set forth therein, it is undeniable that Stillaguamish has been under federal jurisdiction since 1855. In fact, 

Stillaguamish’s status has been heavily and frequently scrutinized by various federal courts—all of which arrived at the same answer—that Stillaguamish has been 

and is subject to federal jurisdiction. 

In 1934, Stillaguamish—and other signatory tribes to the Treaty of Point Elliot— 

sued the Federal Government in the Court of Claims. See Duwamish, et al. Indians, 

v. United States, (Docket F-275, 79 Ct. Cl. 530 (Ct. Cl. 1934). That court determined 

that Stillaguamish was a proper party to the lawsuit as it was undeniably a party 

to the Treaty. Duwamish, et al. Indians, 79 Ct. Cl. 530, *2. In 1965, pursuant to 

the Indian Claims Commission Act, Stillaguamish sued the United States for unconscionable consideration for lands ceded under the Treaty. Stillaguamish Tribe of 

Indians v. United States, Docket No. 207, 15 Ind. Cl. Comm. 1 (I.C.C. 1965). The 

Commission engaged in extensive fact-finding and concluded that Stillaguamish was 

40 

a party to the Treaty and could properly bring the action against the United States. 

Stillaguamish Tribe of Indians, 15 Ind. Cl. Comm. at 1, 31-32, 36, 38, 41. 

In 1974, Article V of the Treaty of Point Elliott was the subject of major litigation 

on fishing rights in the State of Washington. United States v. Washington, 384 F. 

Supp 312 (W.D. Wash. 1974). Stillaguamish was forced to intervene in the case to 

defend its Treaty rights. The court determined that Stillaguamish was a party to 

the Treaty of Point Elliott and that Stillaguamish enjoyed vested treaty rights to 

fish. Id. at 401-02, 406; see also United States v. Washington, 520 F.2d 676, 693 (9th 

Cir. 1975). 

The struggle for confirmation of our tribal status came to a head in 1980 when 

the Solicitor for the Department of Interior published an Opinion on the status of 

Stillaguamish. See Solicitor’s Opinion. By way of background, in the late 1970’s, 

Stillaguamish wanted to acquire land in order to re-establish a tribal land base to 

preserve the very sovereignty that our leaders had worked so hard to obtain. The 

Solicitor’s Opinion analyzed 25 U.S.C. § 479—the same provision at issue in 

Carcieri—and unequivocally determined that Stillaguamish was subject to federal 

jurisdiction, thereby providing the Secretary of Interior with the requisite authority 

to take land into trust on behalf of Stillaguamish. Id. While Chief Esther Ross’s 

struggle to confirm our status ended in 1980, the Supreme Court has created new 

negative ramifications for the rest of Indian Country by ignoring the policy and purpose of the IRA in rendering a decision in Carcieri. This Congress should preclude 

other tribes from undergoing the painful experience that we endured for nearly a 

century by passing legislation to fix Carcieri. 

Carcieri Ignores the Policy and Purpose of the Indian Reorganization Act 

The Indian Reorganization Act (IRA) attempted to end, among other things, the 

federal policy of allotment that had ravaged tribal communities across the United 

States. In particular, the IRA attempted to afford tribes that did not have a reservation, or had a very small reservation, with an avenue to acquire land in order to 

establish a permanent homeland. The IRA sought to strengthen tribal communities 

by empowering them to obtain land and create a land base so that tribes could preserve and protect tribal culture, values, and sovereignty. The IRA affirmatively recognized the common sense principle that land is critical to the survival of all tribes. 

For Stillaguamish, one can see how the IRA has played out in our tribal history. 

Currently, Stillaguamish has less than 250 acres of land in trust and our tribal government is proceeding with acquiring additional land to provide housing for tribal 

members, continue our environmental conservation efforts, and preserve our culture 

and history in the region. 

Unfortunately, this purpose of providing an avenue to acquire land for tribes— 

explicit in the text of the IRA—was of no importance to the Supreme Court’s consideration of Carcieri v. Salazar. Instead, the Court hinged its ruling on exploiting a 

technical absurdity found in a single word in the entire Act. The Court used this 

one word to read a limiting factor into the clearly expressed, broad policy of the 

IRA: tribes need to have land in order to maintain their existence. 

The United States has an trust obligation to all Indian tribes—not just a certain 

select few—and this decision undermines that well-settled, long-standing concept. 

This Congress, and this Committee in particular, acknowledge and respect the trust 

relationship and the Federal Government’s continuing obligation to all Indian tribes 

that is directly served by passing legislation to fix the destructive rule announced 

in Carcieri. 

Carcieri Further Mires an Already Long Process for Land-into-Trust 

Applications 

A primary consequence of Carcieri is the creation of unnecessary delay in the 

processing of land-into-trust applications. On the ground, this consequence impedes 

our efforts to provide housing to tribal members that are currently without homes. 

Our tribal members are suffering in this economy. Stillaguamish tribal government 

is working to obtain housing for displaced tribal members. These individuals have 

a tribal government that looks out for their well-being; but it is currently prevented 

from permanently addressing their needs due to Carcieri. 

Plainly, this decision provides opponents of Indian tribes with a frivolous basis to 

impede our attempts to improve the quality of life for all our tribal members. We 

are not able to take land we currently own in fee and place it into trust status due 

to the uncertainty created by Carcieri. Accordingly, this uncertainty creates further 

delay in an already slow and overly burdensome land-into-trust process. 

The tribal government cannot move forward with providing permanent housing to 

these individual members until land is placed into trust status. As this country has 

come to understand all to well in the past few years, housing is a pillar of the econVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
41 

omy and allows people to provide for themselves and their families. Aid to our tribal 

members is unnecessarily delayed due to Carcieri. How long must our tribal members with both young children and elderly relatives be forced to stay in a cramped 

one-room motel? Were it not for Carcieri, Stillaguamish would be taking immediate 

action to remedy situations like those to care for our members. 

Stories like this reverberate throughout Indian Country. Our situation is not necessarily unique in that we are delayed and limited by Carcieri. Other tribes feel the 

same effects; regardless of our diverse tribal histories, we are all in the same 

situation—Carcieri impedes the progress that we are ready to make on behalf of our 

tribal members. For our people, this simply adds delay when we are trying to improve the welfare of our community by providing quality housing to tribal members 

who are in desperate need of assistance. 

Carcieri Creates Classes of Indian Tribes: Have’s and Have Not’s 

In addition to prolonging an already protracted land-into-trust process, Carcieri 

creates two classes of Indian tribes: ‘‘have’s’’ and ‘‘have not’s.’’ 

Carcieri reinvents the meaning of a federally recognized Indian tribe and creates 

unnecessary confusion as to the legal status and rights of Indian tribes. This reengineering of the IRA is unwarranted and casts a long shadow of doubt over all 

tribes’ ability to maintain a land base in order to preserve our culture, values, and 

sovereignty. It goes without saying that Carcieri gave short shrift to the critical policy, intent, and purpose of the IRA in arriving at the new rule regarding the Secretary of Interior’s authority to place land into trust. Such division can simply have 

no place in the United States. This country has endured periods of division in all 

forms—religious, racial, gender, and others—none of which have improved the quality of life for Americans. Classes in the United States have no place. 

Likewise, Carcieri created classes of Indian tribes, some of which have the right 

to have land taken into trust for them, while others do not. Whether someone is 

Narragansett, Stillaguamish, Navajo, or Cherokee, we are all Indians and come 

from tribal communities that have been routinely treated as similar since the founding of the United States. The distinction Carcieri found among our tribal communities has no origin in the real world—it is purely a technical absurdity that has 

led to an avalanche of negative effects on all tribal communities. 

As a practical matter, it is cumbersome, burdensome, and unwieldy for the Department of Interior and Bureau of Indian Affairs to maintain various categorized 

lists of tribes—some of which have the full panoply of rights while others enjoy but 

a select few. The dividing up of Indian Country according to an arbitrary technicality creates further administrative delay in addressing matters of all sorts under 

the IRA. Administratively, Carcieri creates a nightmare for federal officials in executing uniform and sound American Indian policy. 

The effect of Carcieri—to provide some tribes with more rights than others—undermines basic principles of Federal Indian Law, the federal-tribal trust relationship, and fundamental concepts upon which this country was founded, the most important of all being equality. In short, legislation is desperately needed to remove 

the class system that now divides Indian Country. 

Not Fixing Carcieri will Force Tribes and the Federal Government to 

Defend a Multitude of Lawsuits that will Overwhelm the Federal 

Judiciary and Lead to Potentially Inconsistent Decisions 

Opponents of Indian tribes are already utilizing Carcieri as a means to delay and 

frivolously challenge land-into-trust applications. In the event that legislation is not 

passed, both tribes and their trustee, the Federal Government, will be forced to go 

to federal courts around the country and defend routine and ordinary trust applications. Litigation of this sort is unnecessary given the background of the IRA, but 

will necessarily follow because of Carcieri. 

No decision to take land into trust on behalf of a tribe is safe from challenge. Regardless of the legal merit of these challenges, tribes and their trustee have no 

choice but to expend limited governmental resources to defend these decisions. Furthermore, the myriad actions that will be filed will overwhelm the federal judiciary. 

With the flooding of these types of cases comes the potential for inconsistent and 

uneven interpretation of the law in Carcieri, creating further classes of Indian 

tribes. The courts should not be called on to interpret the particular lines dividing 

Indian tribes—there should be no lines at all. 

Congress, under the leadership of Chairman Rahall and this Committee, can affect positive change in Indian Country by revisiting the IRA and making clear that 

all Indian tribes are treated equally. Not doing so will result in the inefficient use 

of scarce governmental funds and the usage of very limited tribal resources. 

42 

Conclusion and Recommendation 

Mr. Chairman, Mr. Ranking Member, and Committee Members, I thank you for 

the opportunity to come here today and share my story with you. I am walking in 

the footsteps of my grandmother, Chief Esther Ross, and while they are too large 

for me to fill, I am compelled to be here and help finish the work she started in 

these same halls and buildings. Unfortunately, providence has brought me to D.C. 

to fight a battle similar to that which she fought nearly thirty years ago. As the 

designated leader of my tribe, I ask you to assist us in declaring once and for all 

that all Indian tribes are equal by passing H.R. 3742 and/or H.R. 3697. Thank you. 

Native American Treaty between the United States and the Dwa ́mish, 

Suqua ́mish, and other allied and subordinate Tribes of Indians in 

Washington Territory. 

Concluded at Point Elliott, Washington Territory, January 22, 1855. 

January 22, 1855. 

Ratified by the Senate, March 8, 1859. 

Proclaimed by the President of the United States, April 11, 1859. 

JAMES BUCHANAN, PRESIDENT OF THE UNITED STATES, TO ALL AND 

SINGULAR TO WHOM THESE PRESENTS SHALL COME, GREETING: 

ARTICLE I. 

ARTICLE II. 

ARTICLE III. 

ARTICLE IV. 

ARTICLE V. 

ARTICLE VI. 

ARTICLE VII. 

ARTICLE VIII. 

ARTICLE IX. 

ARTICLE X. 

ARTICLE XI. 

ARTICLE XII. 

ARTICLE XIII. 

ARTICLE XIV. 

ARTICLE XV. 

JAMES BUCHANAN, PRESIDENT OF THE UNITED STATES, TO ALL AND 

SINGULAR TO WHOM THESE PRESENTS SHALL COME, GREETING: 

WHEREAS a treaty was made and concluded at Mu ́ ckl-te-o ́h, or Point Elliott, in 

the Territory of Washington, the twenty-second day of January, one thousand eight 

hundred and fifty-five, by Isaac I. Stevens, governor and superintendent of Indian 

affairs for the said Territory, on the part of the United States, and the hereinafternamed chiefs, headmen, and delegates of the Dwa ́mish, Suqua ́mish, Sk-ta ́hl-mish, 

Sam-a ́hmish, Smalhkahmish, Skope-a ́hmish, St-ka ́h-mish, Snoqua ́lmoo, Skai-whamish, N’Quentl-ma ́-mish, Sk-ta ́h-le-jum, Stoluck-wha ́-mish, Sno-ho-mish, Ska ́git, 

Kik-i-a ́llus, Swin-a ́-mish, Squin-a ́h-mish, Sah-ku-me ́hu, Noo-wha ́-ha ́, Nook-wa-cha ́hmish, Mee-see-qua-guilch, Cho-bah-a ́h-bish, and other allied and subordinate tribes 

and bands of Indians occupying certain lands situated in said Territory of Washington, on behalf of said tribes and duly authorized by them; which treaty is in the 

words and figures following to wit: 

Articles of agreement and convention made and concluded at Mu ́ ckl-te-o ́h, or 

Point Elliott, in the Territory of Washington, this twenty-second day of January, 

eighteen hundred and fifty-five, by Isaac I. Stevens, governor and superintendent 

of Indian affairs for the said Territory, on the part of the United States, and the 

undersigned chiefs, headmen and delegates of the Dwa ́mish, Suqua ́mish, Sk-ta ́hlmish, Sam-a ́hmish, Smalh-kamish, Skope-a ́hmish, St-ka ́h-mish, Snoqua ́lmoo, Skaiwha-mish, N’Quentl-ma ́-mish, Sk-ta ́h-le-jum, Stoluck-wha ́-mish, Sno-ho-mish, Ska ́- 

git, Kik-i-a ́llus, Swin-a ́-mish, Squin-a ́h-mish, Sah-ku-me ́hu, Noo-wha ́-ha, Nook-waVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
43 

cha ́h-mish, Me-se ́e-qua-guilch, Cho-bah-a ́h-bish, and other allied and subordinate 

tribes and bands of Indians occupying certain lands situated in said Territory of 

Washington, on behalf of said tribes, and duly authorized by them. 

ARTICLE I. 

The said tribes and bands of Indians hereby cede, relinquish, and convey to the 

United States all their right, title, and interest in and to the lands and country occupied by them, bounded and described as follows: Commencing at a point on the 

eastern side of Admiralty Inlet, known as Point Pully, about midway between Commencement and Elliott Bays; thence eastwardly, running along the north line of 

lands heretofore ceded to the United States by the Nisqually, Puyallup, and other 

Indians, to the summit of the Cascade range of mountains; thence northwardly, following the summit of said range to the 49th parallel of north latitude; thence west, 

along said parallel to the middle of the Gulf of Georgia; thence through the middle 

of said gulf and the main channel through the Canal de Arro to the Straits of Fuca, 

and crossing the same through the middle of Admiralty Inlet to Suquamish Head; 

thence southwesterly, through the peninsula, and following the divide between 

Hood’s Canal and Admiralty Inlet to the portage known as Wilkes’ Portage; thence 

northeastwardly, and following the line of lands heretofore ceded as aforesaid to 

Point Southworth, on the western side of Admiralty Inlet, and thence round the foot 

of Vashon’s Island eastwardly and southeastwardly to the place of beginning, including all the islands comprised within said boundaries, and all the right, title, and 

interest of the said tribes and bands to any lands within the territory of the United 

States. 

ARTICLE II. 

There is, however, reserved for the present use and occupation of the said tribes 

and bands the following tracts of land, viz: the amount of two sections, or twelve 

hundred and eighty acres, surrounding the small bight at the head of Port Madison, 

called by the Indians Noo-sohk-um; the amount of two sections, or twelve hundred 

and eighty acres, on the north side Hwhomish Bay and the creek emptying into the 

same called Kwilt-seh-da, the peninsula at the southeastern end of Perry’s Island 

called Sha ́is-quihl, and the island called Chah-choo-sen, situated in the Lummi 

River at the point of separation of the mouths emptying respectively into Bellingham Bay and the Gulf of Georgia. All which tracts shall be set apart, and so 

far as necessary surveyed and marked out for their exclusive use; nor shall any 

white man be permitted to reside upon the same without permission of the said 

tribes or bands, and of the superintendent or agent, but, if necessary for the public 

convenience, roads may be run through the said reserves, the Indians being compensated for any damage thereby done them. 

ARTICLE III. 

There is also reserved from out the lands hereby ceded the amount of thirty-six 

sections, or one township of land, on the northeastern shore of Port Gardner, and 

north of the mouth of Snohomish River, including Tulalip Bay and the before-mentioned Kwilt-seh-da Creek, for the purpose of establishing thereon an agricultural 

and industrial school, as hereinafter mentioned and agreed, and with a view of ultimately drawing thereto and settling thereon all the Indians living west of the Cascade Mountains in said Territory. Provided, however, that the President may establish the central agency and general reservation at such other point as he may deem 

for the benefit of the Indians. 

ARTICLE IV. 

The said tribes and bands agree to remove to and settle upon the said first above 

mentioned reservations within one year after the ratification of this treaty, or sooner, if the means are furnished them. In the mean time it shall be lawful for them 

to reside upon any land not in the actual claim and occupation of citizens of the 

United States, and upon any land claimed or occupied, if with the permission of the 

owner. 

ARTICLE V. 

The right of taking fish at usual and accustomed grounds and stations is further 

secured to said Indians in common with all citizens of the Territory, and of erecting 

temporary houses for the purpose of curing, together with the privilege of hunting 

and gathering roots and berries on open and unclaimed lands. Provided, however, 

that they shall not take shell-fish from any beds staked or cultivated by citizens. 

44 

ARTICLE VI. 

In consideration of the above cession, the United States agree to pay to the said 

tribes and bands the sum of one hundred and fifty thousand dollars, in the following 

manner—that is to say: For the first year after the ratification hereof, fifteen thousand dollars; for the next two years, twelve thousand dollars each year; for the next 

three years, ten thousand dollars each year; for the next four years, seven thousand 

five hundred dollars each year; for the next five years, six thousand dollars each 

year; and for the last five years, four thousand two hundred and fifty dollars each 

year. All which said sums of money shall be applied to the use and benefit of the 

said Indians under the direction of the President of the United States, who may 

from time to time determine at his discretion upon what beneficial objects to expend 

the same; and the Superintendent of Indian Affairs, or other proper officer, shall 

each year inform the President of the wishes of said Indians in respect thereto. 

ARTICLE VII. 

The President may hereafter, when in his opinion the interests of the Territory 

shall require and the welfare of the said Indians be promoted, remove them from 

either or all of the special reservations hereinbefore made to the said general reservation, or such other suitable place within said Territory as he may deem fit, on 

remunerating them for their improvements and the expenses of such removal, or 

may consolidate them with other friendly tribes or bands; and he may further at 

his discretion cause the whole or any portion of the lands hereby reserved, or of 

such other land as may be selected in lieu thereof, to be surveyed into lots, and assign the same to such individuals or families as are willing to avail themselves of 

the privilege, and will locate on the same as a permanent home on the same terms 

and subject to the same regulations as are provided in the sixth article of the treaty 

with the Omahas, so far as the same may be applicable. Any substantial improvements heretofore made by any Indian, and which he shall be compelled to abandon 

in consequence of this treaty, shall be valued under the direction of the President 

and payment made accordingly therefor. 

ARTICLE VIII. 

The annuities of the aforesaid tribes and bands shall not be taken to pay the 

debts of individuals. 

ARTICLE IX. 

The said tribes and bands acknowledge their dependence on the government of 

the United States, and promise to be friendly with all citizens thereof, and they 

pledge themselves to commit no depredations on the property of such citizens. 

Should any one or more of them violate this pledge, and the fact be satisfactorily 

proven before the agent, the property taken shall be returned, or in default thereof, 

or if injured or destroyed, compensation may be made by the government out of 

their annuities. Nor will they make war on any other tribe except in self-defence, 

but will submit all matters of difference between them and the other Indians to the 

government of the United States or its agent for decision, and abide thereby. And 

if any of the said Indians commit depredations on other Indians within the Territory 

the same rule shall prevail as that prescribed in this article in cases of depredations 

against citizens. And the said tribes agree not to shelter or conceal offenders against 

the laws of the United States, but to deliver them up to the authorities for trial. 

ARTICLE X. 

The above tribes and bands are desirous to exclude from their reservations the 

use of ardent spirits, and to prevent their people from drinking the same, and therefore it is provided that any Indian belonging to said tribe who is guilty of bringing 

liquor into said reservations, or who drinks liquor, may have his or her proportion 

of the annuities withheld from him or her for such time as the President may determine. 

ARTICLE XI. 

The said tribes and bands agree to free all slaves now held by them and not to 

purchase or acquire others hereafter. 

ARTICLE XII. 

The said tribes and bands further agree not to trade at Vancouver’s Island or elsewhere out of the dominions of the United States, nor shall foreign Indians be permitted to reside in their reservations without consent of the superintendent or 

agent. 

45 

ARTICLE XIII. 

To enable the said Indians to remove to and settle upon their aforesaid reservations, and to clear, fence, and break up a sufficient quantity of land for cultivation, 

the United States further agree to pay the sum of fifteen thousand dollars to be laid 

out and expended under the direction of the President and in such manner as he 

shall approve. 

ARTICLE XIV. 

The United States further agree to establish at the general agency for the district 

of Puget’s Sound, within one year from the ratification hereof, and to support for 

a period of twenty years, an agricultural and industrial school, to be free to children 

of the said tribes and bands in common with those of the other tribes of said district, and to provide the said school with a suitable instructor or instructors, and 

also to provide a smithy and carpenter’s shop, and furnish them with the necessary 

tools, and employ a blacksmith, carpenter, and farmer for the like term of twenty 

years to instruct the Indians in their respective occupations. And the United States 

finally agree to employ a physician to reside at the said central agency, who shall 

furnish medicine and advice to their sick, and shall vaccinate them; the expenses 

of said school, shops, persons employed, and medical attendance to be defrayed by 

the United States, and not deducted from the annuities. 

ARTICLE XV. 

This treaty shall be obligatory on the contracting parties as soon as the same 

shall be ratified by the President and Senate of the United States. 

In testimony whereof, the said Isaac I. Stevens, governor and superintendent of 

Indian affairs, and the undersigned chiefs, headmen, and delegates of the aforesaid 

tribes and bands of Indians, have hereunto set their hands and seals, at the place 

and on the day and year hereinbefore written. 

ISAAC I. STEVENS, 

Governor and Superintendent, 

[L. S.] 

SEATTLE, Chief of the Dwamish and Suquamish tribes. his x mark. [L. S.] 

PAT-KA-NAM, Chief of the Snoqualmoo, Snohomish and other tribes. his x mark. 

[L. S.] 

CHOW-ITS-HOOT, Chief of the Lummi and other tribes. his x mark. [L. S.] 

GOLIAH, Chief of the Skagits and other allied tribes. his x mark. [L. S.] 

KWALLATTUM, or General Pierce, Sub-chief of the Skagit tribe. his x mark. 

[L. S.] 

S’HOOTST-HOOT, Sub-chief of Snohomish. his x mark. [L. S.] 

SNAH-TALC, or Bonaparte, Sub-chief of Snohomish. his x mark. [L. S.] 

SQUUSH-UM, or The Smoke, Sub-chief of the Snoqualmoo. his x mark. [L. S.] 

SEE-ALLA-PA-HAN, or The Priest, Sub-chief of Sk-tah-le-jum. his x mark. [L. S.] 

HE-UCH-KA-NAM, or George Bonaparte, Sub-chief of Snohomish. his x mark. 

[L. S.] 

TSE-NAH-TALC, or Joseph Bonaparte, Sub-chief of Snohomish. his x mark. [L. S.] 

NS’SKI-OOS, or Jackson, Sub-chief of Snohomish. his x mark. [L. S.] 

WATS-KA-LAH-TCHIE, or John Hobtst-hoot, Sub-chief of Snohomish. his x mark. 

[L. S.] 

SMEH-MAI-HU, Sub-chief of Skai-wha-mish. his x mark. [L. S.] 

SLAT-EAH-KA-NAM, Sub-chief of Snoqualmoo. his x mark. [L. S.] 

ST’HAU-AI, Sub-chief of Snoqualmoo. his x mark. [L. S.] 

LUGS-KEN, Sub-chief of Skai-wha-mish. his x mark. [L. S.] 

S’HEHT-SOOLT, or Peter, Sub-chief of Snohomish. his x mark. [L. S.] 

DO-QUEH-OO-SATL, Snoqualmoo tribe. his x mark. [L. S.] 

JOHN KANAM, Snoqualmoo sub-chief. his x mark. [L. S.] 

KLEMSH-KA-NAM, Snoqualmoo. his x mark. [L. S.] 

TS’HUAHNTL, Dwa-mish sub-chief. his x mark. [L. S.] 

KWUSS-KA-NAM, or George Snatelum, Sen., Skagit tribe. his x mark. [L. S.] 

HEL-MITS, or George Snatelum, Skagit sub-chief. his x mark. [L. S.] 

S’KWAI-KWI, Skagit tribe, sub-chief. his x mark. [L. S.] 

SEH-LEK-QU, Sub-chief Lummi tribe. his x mark. [L. S.] 

S’H’-CHEH-OOS, or General Washington, Sub-chief of Lummi tribe. his x mark. 

[L. S.] 

WHAI-LAN-HU, or Davy Crockett, Sub-chief of Lummi tribe. his x mark. [L. S.] 

SHE-AH-DELT-HU, Sub-chief of Lummi tribe. his x mark. [L. S.] 

KWULT-SEH, Sub-chief of Lummi tribe. his x mark. [L. S.] 

KWULL-ET-HU, Lummi tribe. his x mark. [L. S.] 

46 

KLEH-KENT-SOOT, Skagit tribe. his x mark. [L. S.] 

SOHN-HEH-OVS, Skagit tribe. his x mark. [L. S.] 

S’DEH-AP-KAN, or General Warren, Skagit tribe. his x mark. [L. S.] 

CHUL-WHIL-TAN, Sub-chief of Suquamish tribe. his x mark. [L. S.] 

SKE-EH-TUM, Skagit tribe. his x mark. [L. S.] 

PATCHKANAM, or Dome, Skagit tribe. his x mark. [L. S.] 

SATS-KANAM, Squin-ah-nush tribe. his x mark. [L. S.] 

SD-ZO-MAHTL, Kik-ial-lus band. his x mark. [L. S.] 

DAHTL-DE-MIN, Sub-chief of Sah-ku-meh-hu. his x mark. [L. S.] 

SD’ZEK-DU-NUM, Me-sek-wi-guilse sub-chief. his x mark. [L. S.] 

NOW-A-CHAIS, Sub-chief of Dwamish. his x mark. [L. S.] 

MIS-LO-TCHE, or Wah-hehl-tchoo, Sub-chief of Suquamish. his x mark. [L. S.] 

SLOO-NOKSH-TAN, or Jim, Suquamish tribe. his x mark. [L. S.] 

MOO-WHAH-LAD-HU, or Jack, Suquamish tribe. his x mark. [L. S.] 

TOO-LEH-PLAN, Suquamish tribe. his x mark. [L. S.] 

HA-SEH-DOO-AN, or Keo-kuck, Dwamish tribe. his x mark. [L. S.] 

HOOVILT-MEH-TUM, Sub-chief of Suquamish. his x mark. [L. S.] 

WE-AI-PAH, Skaiwhamish tribe. his x mark. [L. S.] 

S’AH-AN-HU, or Hallam, Snohomish tribe. his x mark. [L. S.] 

SHE-HOPE, or General Pierce, Skagit tribe. his x mark. [L. S.] 

HWN-LAH-LAKQ, or Thomas Jefferson, Lummi tribe. his x mark. [L. S.] 

CHT-SIMPT, Lummi tribe. his x mark. [L. S.] 

TSE-SUM-TEN, Lummi tribe. his x mark. [L. S.] 

KLT-HAHL-TEN, Lummi tribe. his x mark. [L. S.] 

KUT-TA-KANAM, or John, Lummi tribe. his x mark. [L. S.] 

CH-LAH-BEN, Noo-qua-cha-mish band. his x mark. [L. S.] 

NOO-HEH-OOS, Snoqualmoo tribe. his x mark. [L. S.] 

HWEH-UK, Snoqualmoo tribe. his x mark. [L. S.] 

PEH-NUS, Skai-whamish tribe. his x mark. [L. S.] 

YIM-KA-NAM, Snoqualmoo tribe. his x mark. [L. S.] 

TWOOI-AS-KUT, Skaiwhamish tribe. his x mark. [L. S.] 

LUCH-AL-KANAM, Snoqualmoo tribe. his x mark. [L. S.] 

S’HOOT-KANAM, Snoqualmoo tribe. his x mark. [L. S.] 

SME-A-KANAM, Snoqualmoo tribe. his x mark. [L. S.] 

SAD-ZIS-KEH, Snoqualmoo. his x mark. [L. S.] 

HEH-MAHL, Skaiwhamish band. his x mark. [L. S.] 

CHARLEY, Skagit tribe. his x mark. [L. S.] 

SAMPSON, Skagit tribe. his x mark. [L. S.] 

JOHN TAYLOR, Snohomish tribe. his x mark. [L. S.] 

HATCH-KWENTUM, Skagit tribe. his x mark. [L. S.] 

YO-I-KUM, Skagit tribe. his x mark. [L. S.] 

T’KWA-MA-HAN, Skagit tribe. his x mark. [L. S.] 

STO-DUM-KAN, Swinamish band. his x mark. [L. S.] 

BE-LOLE, Swinamish band. his x mark. [L. S.] 

D’ZO-LOLE-GWAM-HU, Skagit tribe. his x mark. [L. S.] 

STEH-SHAIL, William, Skaiwhamish band. his x mark. [L. S.] 

KEL-KAHL-TSOOT, Swinamish tribe. his x mark. [L. S.] 

PAT-SEN, Skagit tribe. his x mark. [L. S.] 

PAT-TEH-US, Noo-wha-ah sub-chief. his x mark. [L. S.] 

S’HOOLK-KA-NAM, Lummi sub-chief. his x mark. [L. S.] 

CH-LOK-SUTS, Lummi sub-chief. his x mark. [L. S.] 

Executed in the presence of us — 

M. T. SIMMONS, 

Indian Agent. 

C. H. MASON, 

Secretary of Washington Territory. 

BENJ. F. SHAW, 

Interpreter. 

CHAS. M. HITCHCOCK. 

H. A. GOLDSBOROUGH. 

GEORGE GIBBS. 

JOHN H. SCRANTON. 

HENRY D. COCK. 

S. S. FORD, Jr. 

ORRINGTON CUSHMAN. 

ELLIS BARNES. 

47 

R. S. BAILEY. 

S. M. COLLINS. 

LAFAYETEE BALCH. 

E. S. FOWLER. 

J. H. HALL. 

ROB’T DAVIS. 

And whereas, the said treaty having been submitted to the Senate of the United 

States for its constitutional action thereon, the Senate did, on the eighth day of 

March, one thousand eight hundred and fifty-nine, advise and consent to the ratification of its articles by a resolution in the words and figures following, to wit: 

‘‘IN EXECUTIVE SESSION, 

‘‘SENATE OF THE UNITED STATES, March 8, 1859. 

‘‘Resolved, (two-thirds of the senators present concurring,) That the Senate advise 

and consent to the ratification of treaty between the United States and the chiefs, 

headmen and delegates of the Dwa ́mish, Suqua ́mish and other allied and subordinate tribes of Indians occupying certain lands situated in Washington Territory, 

signed the 22d day of January, 1855. 

‘‘Attest: ‘‘ASBURY DICKINS, Secretary.’’ 

Now, therefore, be it known that I, JAMES BUCHANAN, President of the United 

States of America, do, in pursuance of the advice and consent of the Senate, as expressed in their resolution of the eighth of March, one thousand eight hundred and 

fifty-nine, accept, ratify, and confirm the said treaty. 

In testimony whereof, I have caused the seal of the United States to be hereto 

affixed, and have signed the same with my hand. 

Done at the city of Washington, this eleventh day of April, in the year of our Lord 

one thousand eight hundred and fifty-nine, and of the independence of the United 

States the eighty-third. 

[SEAL.] 

JAMES BUCHANAN. 

By the President: 

LEWIS CASS, 

Secretary of State. 

12 Stat. 927 

END OF DOCUMENT 

Mr. KILDEE. Thank you. Your entire testimony will be made part 

of the record. 

Attorney General Blumenthal. 

STATEMENT OF THE HONORABLE RICHARD BLUMENTHAL, 

ATTORNEY GENERAL, OFFICE OF THE ATTORNEY GENERAL, 

HARTFORD, CONNECTICUT 

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

Committee. And I want to thank the Committee for giving me this 

opportunity to speak on behalf of the State of Connecticut and 

more than 20 attorneys general who also submitted an amicus curiae brief to the United States Supreme Court written by Connecticut in connection with the Carcieri matter. 

And I want to say that I appear or speak with some reluctance 

after such powerful presentations from leaders and chairpeople of 

the Native American community. And in Connecticut, we have two 

very distinguished and eminent tribal nations, the Mohegans and 

the Mashantucket Pequots. 

And I differ with them respectfully on the issues that are presented by this legislation. I want to say at the outset that I not 

only respect their views but certainly am deeply moved by their 

stories. And I respect also the principle of sovereignty, and for 18 

years as Attorney General, I have fought and argued that the prinVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6602 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
48 

ciple of sovereignty on Native American reservations is entitled to 

respect. It is the law. It is Congressional action made law for all 

Americans. 

I am here to oppose these measures because of my respect for the 

principles of sovereignty and the practical impact of land into trust, 

fee to trust decisions, practical impacts that we articulated at the 

United States Supreme Court, as chief legal officers of our states, 

practical impacts that involve loss of taxation, loss of enforcement 

avenues regarding environmental laws and land use regulations, 

very severe impacts that are not only lasting but in most cases forever, as they should be in most cases. 

And I was interested earlier to hear the testimony from the Department of the Interior as to land going from trust into fee. I am 

unaware of that ever happening, and I would be interested in those 

instances of it happening. But I would submit respectfully that 

those cases are the exception rather than the rule and they should 

be the exception rather than the rule. 

These decisions are immensely and profoundly significant. They 

are a loss of a substantial measure of sovereignty over areas of 

land within our states where enforcement obligations are supremely important, and they raise questions about jurisdiction, 

criminal and civil, that are enduring. 

I believe that there are better alternatives to these measures, 

and I outline them in my testimony. I believe that the current system that now prevails in the wake of Carcieri where Congress, 

Congress has the power to grant fee into trust should prevail for 

pre-1934 tribes as well as post-1934 tribes, thereby recognizing, as 

the previous speaker said, the equal position of all Federally recognized tribes. 

Congress has this responsibility, and it should take back control. 

And I say that because I believe, and I think you will see it in litigation, and that was referenced earlier this morning, a challenge 

to the Department of the Interior’s authority to make these decisions and to the legality and constitutionality of those decisions as 

an unlawful delegation of Congressional power. And I think Congress should alone exercise that responsibility. 

If the decision is made to continue with the Department of the 

Interior, there need to be drastic, far-reaching reforms. The current 

process is lawless. I use that word advisedly. It sounds like a 

strong term, but it is lawless. It is without standards, guidelines, 

any kind of Congressional direction legally to constrain the unbridled discretion of the Secretary of the Interior. 

With time, if I had it here, I could describe to you our fight in 

Connecticut, litigation spanning a number of years because of that 

unbridled discretion as well as other instances where decisions 

have been delayed or land into trust denied to the disadvantage of 

tribes because of those standardless and discretionary decisions. 

I have the utmost respect for Secretary Eckerhart, one of my 

former colleagues, as well as Secretary Salazar, another former colleague, and I hope they will reform the process on their own. But 

I would urge, as I do in my testimony, that standards be adopted 

to provide notice, information, a right to be heard, improvements 

in the standards and the process that are absolutely vital if the adVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6602 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
49 

ministrative process is to continue, a drastic, far-reaching overhaul 

of that process as it exists now. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Blumenthal follows:] 

Statement of The Honorable Richard Blumenthal, 

Attorney General, State of Connecticut 

I appreciate the opportunity to comment on the issue of Native American trust 

lands after the United States Supreme Court decision in Carcieri v. Salazar. I urge 

the committee to take no further action regarding the decision—while reforming the 

process for taking land into trust for pre-1934 tribes and requiring congressional approval for post-1934 tribes. 

Even as it leaves Carcieri v. Salazar in place, Congress should reform and clarify 

existing laws and procedures for taking land into trust. I recommend Congress: (1) 

validate the trust land transactions approved prior to the Carcieri decision by the 

Secretary of the Interior for post-1934 tribes; and (2) repeal or reform the Interior 

Department approval process for trust land applications to ensure states, towns and 

individuals have a meaningful voice. 

Lawmakers should determine whether the current system—authorizing the Secretary of the Interior to determine when and whether to take lands into trust on 

behalf of a Native American tribe recognized prior to 1934—is still necessary to 

achieve the original goals of the Indian Reorganization Act (IRA). Congress should 

either reform the administrative process in order to achieve fair and equitable decisions regarding trust lands for these tribes or repeal the Act, thereby establishing 

for pre-1934 tribes the same Congressional trust approval as post-1934 tribes. 

I. Congress should have sole Authority to approve post-1934 Tribal trust 

land requests 

The United States Supreme Court’s decision in Carcieri v. Salazar recognized 

Congress’ ‘‘plain and unambiguous’’ intent that the Indian Reorganization Act (‘‘the 

IRA’’) permit the Secretary of the Interior to take land into trust only on behalf of 

Indian tribes federally recognized at the time of the IRA’s 1934 enactment. 

The Court’s decision was not only consistent with the IRA’s plain language, but 

also with the Act’s broader purpose, namely, to help remediate the negative impact 

of pre-1934 federal policies and bureaucratic failings on tribes under federal jurisdiction at the time. 

In 1887, Congress passed the misguided and deeply flawed General Allotment 

Act, which transferred ownership of Indian lands from federally recognized tribes 

to individual tribal members. The results were disastrous. In the ensuing years, 

more than two-thirds of Indian land was acquired by non-Indians, contributing to 

poverty and social dislocation among Native Americans. 

The record clearly shows that Congress passed the IRA in 1934 to address the 

damage done by the General Allotment Act of 1887. Congress’ clear intention was 

to provide a legal means for tribes to regain land unfairly lost because of flawed 

federal policy. Indeed, the IRA sought to remediate the consequences of ‘‘deficiencies 

in the Interior Department’s performance of its responsibilities’’ to protect the assets 

of recognized tribes under federal jurisdiction prior to 1934. United States v. Mitchell, 463 U.S. 206, 220 (1983). 

As Connecticut and other states said in our U.S. Supreme Court brief: 

‘‘Reading the IRA to apply only to tribes recognized and under federal jurisdiction in 1934 is not only consistent with the legislative history directly 

related to the ‘‘now’’ limitation, it is also entirely consistent with the Act’s 

broader purposes and history. The IRA was intended to help remediate the 

impact on then-recognized tribes of pre-1934 federal policies and bureaucratic failings. Specifically, this Court has recognized that ‘‘[t]he intent and 

purpose of the Reorganization Act was ‘‘to rehabilitate the Indian’s economic life and to give him a chance to develop the initiative destroyed by 

a century of oppression and paternalism.’’ Mescalero Apache Tribe v. Jones, 

411 U.S. 145, 152 (1973) (quoting H.R. Rep. No. 1804, 73d Cong., 2d Sess., 

6 (1934) and citing S. Rep. No. 1080, 73d Cong., 2d Sess., 1 (1934)). 

‘‘One of the primary aspects of that past oppression and paternalism was 

the federal government’s policy of allotment, which began with the passage 

of the General Allotment Act of 1887 and lasted until 1934, when the IRA 

was enacted. During the allotment period, two-thirds of former Indian lands 

were acquired by non-Indians. County of Yakima v. Confederated Tribes & 

Bands of Yakima Indian Nation, 502 U.S. 251, 255 (1992). The IRA brought 

50 

‘‘an abrupt end’’ to that allotment policy and reflected a ‘‘broad effort to promote economic development among American Indians, with a special emphasis on preventing and recouping losses of land caused by previous federal policies.’’ 

• Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 31 (D.C. Cir. 

2008) (per curiam) (emphasis added) (quoting County of Yakima, 402 U.S. 

at 255).’’ 

Tribes recognized after 1934 are unaffected by the failed federal policies the IRA 

was intended to correct. No post 1934 tribes lost land because of the General Allotment Act of 1887. 

Instead of righting injustices visited upon federally recognized tribes before 

1934—as Congress rightly intended—extending this law to tribes recognized after 

that date threatens to create new injustices against local communities and states. 

Allowing post 1934 tribes to use IRA to take land into trust twists congressional 

intent, giving tribes never wronged by the previous federal policy a super-weapon 

that unfairly denies their non-Indian neighbors the ability to effectively contest such 

decisions. 

Taking land into trust on behalf of an Indian tribe has significant ramifications 

for states and local communities. • Trust land is outside state and local taxation and thus is removed from town 

tax rolls, often resulting in a significant loss of tax revenue for local governments. 25 U.S.C. § 465. 

• Trust lands are outside land use regulation potentially burdening the State and 

surrounding communities with increased traffic, noise, and pollution. 

• Issues may arise as to criminal and civil jurisdiction, including key public 

health and safety laws. 

These are not abstract concerns for Connecticut residents. In the early 1990s, one 

tribe, then the richest in the nation, threw three neighboring Connecticut towns into 

an uproar when it produced a map showing all the property it wished to take into 

trust. Significant portions of all three towns would have been absorbed into the reservation, permanently removing them from the tax rolls and local land use and environmental restrictions. Because of the vast powers vested in the Bureau of Indian 

Affairs (‘‘BIA’’) by IRA, the towns and their residents appeared to have little chance 

of even being heard, let alone challenging the tribe’s land trust requests. Only after 

years of bitter, costly litigation did my office and the towns succeed in forestalling 

the tribe’s trust land application. 

Critical decisions should remain with Congress—as representatives of the 

people—rather than an appointed individual, ensuring that state and local communities have a voice and real input in the process. Congress is uniquely able to balance the interests of the state and local governments against those of the tribes, 

in a process that is transparent, accountable, ensures input from all affected parties 

and reflects a consensus among tribes, states and local communities. 

Congressional action has been an effective route for tribal recognition and for settlement of land claims. Connecticut’s two federally-recognized tribes—the 

Mashantucket Pequot and the Mohegan—were either recognized or obtained significant land holdings through Settlement Acts. See 25 U.S.C. § 1751 et. seq. (The 

Mashantucket Pequot Indian Land Claims Settlement Act); 25 U.S.C. § 1775 et. seq. 

(The Mohegan Nation Land Claims Settlement Act). Several other states have similarly reached agreements with tribes and their Congressional delegation to federally 

recognize the tribes and establish reservation land for such tribes. See, Rhode Island Land Claims Settlement Act, 25 U.S.C. § 1701 et seq.; Maine Indian Claims 

Settlement Act, 25 U.S.C. § 1721 et seq. 

Although any such settlement necessarily entails compromises for the impacted 

state and local communities, as well as the tribe, the involvement of Congress ensures that all interests are heard and considered, and lends the result a legitimacy 

that the administrative process cannot and does not. 

Additional legislation with regard to post-1934 tribes is unnecessary. Congress is 

the appropriate body to make trust decisions concerning tribes that were not impacted by defective federal policies and bureaucratic deficiencies that the IRA was 

intended to remediate. 

II. If a Department of Interior process is maintained, Congress should 

make the process more equitable and fair. 

The current trust lands acquisition process is deeply flawed, providing virtually 

limitless discretion to the Secretary of the Interior, leading to arbitrary decisions 

that undermine public confidence in the fairness of the process and have significant 

impact on communities and states. 

Congressional reform of the administrative trust lands process must include: 

51 

1 Although the Supreme Court vacated the Eighth Circuit’s decision, it did not address the 

nondelegation question. 

• Standards: Administrative approval or rejection of trust lands applications 

should balance the Tribal need to achieve a critical economic or community interest with the impact of trust status on non-Indian residents; 

• Fair process: Community leaders, state officials, Tribal leaders and individuals 

directly affected by a Trust lands application should be notified of the application and have an opportunity to be heard; 

II.A. Standards for Administrative Trust Land Decisions 

The federal Indian Recognition Act (IRA) places effectively no limitation on the 

Secretary’s exercise of the trust power, requiring only that he take the land ‘‘for the 

purpose of providing land to Indians.’’ Indeed, the Interior Department’s criteria for 

trust land decisions actually impose only an illusory limit on the Secretary’s trust 

power because the Secretary has retained the ability to ‘‘waive or make exceptions’’ 

to the regulations ‘‘where permitted by law and the Secretary finds that such waiver 

or exception is in the best interest of the Indian.’’ 25 C.F.R. § 1.2. The paucity of 

congressional guidance has led several federal judges to question the IRA’s constitutionality. See, e.g., Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 33-40 

(D.C. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (Brown, J., dissenting); South 

Dakota v. DOI, 69 F.3d 878, 882 (8th Cir. 1995), cert. granted and decision vacated, 

at 519 U.S. 919 (1996). 1 Indeed, a panel of the United States Court of Appeals for 

the Eighth Circuit noted that the IRA, by its terms, ‘‘would permit the Secretary 

to purchase the Empire State Building in trust for a tribal chieftain as a wedding 

present.’’ South Dakota, 69 F.3d at 882. 

While the lack of adequate standards raises constitutional concerns, fairness and 

equity require Congress establish meaningful criteria, balancing the proposed trust 

acquisition’s benefit to the tribe against the negative consequences to the State and 

local communities. The criteria should: (1) require that the decision maker consider 

the cumulative impact of tax losses and other consequences resulting from multiple 

parcels being taken into trust over time; (2) mandate consideration of the degree 

to which the acquisition is truly necessary for the economic subsistence of the tribe; 

(3) include a presumption against acquisitions on behalf of economically sound 

tribes that already have an adequate land base and wealth and (4) place the burden 

on the tribal applicant to demonstrate that the benefits significantly outweigh the 

negative impacts. 

Connecticut’s experience provides a useful example of why standards are 

necessary. 

In 1994, the Mashantucket Pequot Tribe—which obtained a 2,200-acre federal reservation pursuant to a congressionally approved Settlement Act and was already the 

wealthiest tribe in the country—applied to have approximately 100 acres outside its 

reservation taken into trust for economic and gaming expansion purposes. The State 

and local communities protested, but the Secretary ultimately sided with the Tribe 

despite the lack of evidence that taking the land into trust was necessary to achieve 

its economic expansion. In fact, although the Tribe ultimately withdrew its trust application, it has since continued to expand and has made billions of dollars in 

profits—demonstrating serious flaws in the Secretary’s initial approval of the trust 

application. 

Further demonstrating the need for standards: When the State and local communities appealed the Secretary’s grant of the Mashantucket Pequot Tribe’s trust application, the Secretary of the Interior told the district court that he had unfettered 

and unbridled authority to take land into trust for the Tribe. He told the court that 

only at some point ‘‘prior to the acquisition of all of southeastern Connecticut,’’ 

would it ‘‘‘be unreasonable for the Secretary to find that he had rationally considered’ the regulatory criteria’’ requiring the Secretary to consider the impact on the 

State and its political subdivisions resulting from the removal of the land from the 

tax rolls. State of Conn. v. Babbitt, 26 F. Supp. 2d 397, 406 n.19 (D. Conn. 1998), 

rev’d, 228 F.3d 82 (2d Cir. 2000); see also 25 C.F.R. §§ 151.10 & 151.11 (setting forth 

criteria for on and off reservation trust acquisitions). 

Such a standard is grossly unfair to non-Indian residents affected by tribal trust 

land applications. Congress has a duty to the States, the local communities, and 

their citizens to ensure that the IRA includes meaningful, binding and judicially enforceable standards to protect their substantial interests when tribes seek to take 

land into trust. 

52 

II.B. Fair Process 

Connecticut’s experience with the Interior Department’s process for deciding trust 

land applications revealed substantial and significant flaws and inequities, undermining the public’s confidence in any trust land decision. 

• States and local communities are provided insufficient time to respond to an application for trust acquisition. Under existing regulations, States and local communities have only 30 days to comment on a trust application. That often is 

not enough time to formulate a meaningful response. A Government Accountability Office (GAO) report raises similar concerns adding that the Bureau of 

Indian Affairs (BIA) does not consistently allow for extensions of time where it 

is necessary to formulate a proper response. GAO, Indian Issues: BIA’s Efforts 

to Impose Time Frames and Collect Better Data Should Improve the Processing 

of Land in Trust Applications 32 (July 2006). 

• States and local communities are not given critical information necessary to 

adequately respond in a timely manner. The notice of a trust application contains neither the tribe’s application nor its supporting materials. States and 

local governments are forced to independently obtain that information, whether 

through a Freedom of Information Act request or other means. Time needed to 

obtain that information further reduces the time those entities have to formulate and present their objections. Notices should therefore include all information the tribe submits in support of its application. 

• Some states and local communities are not even notified of the trust application. The regulations only require the Secretary to ‘‘notify the state and local 

governments having regulatory jurisdiction over the land to be acquired.’’ 25 

C.F.R. § 151.10(e) & 151.11. That notice requirement is too narrow, and could 

leave governments and individuals with significant interests unaware of the acquisition request until it is too late. Congress should require that the Secretary 

provide notice to all State and local governments with an interest, regardless 

of whether they have regulatory jurisdiction. 

• States and local communities are provided no opportunity to comment on any 

material change in the use of the trust land. All tribal trust applications should 

fully disclose the intended use of the property and require a tribe seeking to 

change that use to undergo a new decision and comment process with the ability for affected parties to obtain judicial review. The concerns of State and local 

governments may depend greatly on the proposed land use. A Tribe should not 

be able to obtain trust land for one purpose and then use it for another without 

providing the impacted communities an opportunity to challenge the change. 

The clearest example of such a situation would be a tribe taking land into trust 

for a non-gaming purpose, and then seeking to use that land for gaming 

activity. 

• States and local communities are not afforded meaningful judicial review of 

trust land decisions. Until 1996, the Department of the Interior took the position that its decisions were not subject to judicial review. Dep’t of the Interior 

v. South Dakota, 519 U.S. 919, 920 (1996) (Scalia, J., dissenting). Then, following the Eighth Circuit’s decision holding that Section 5 was an unconstitutional delegation, the Department ‘‘did an about-face with regard to the availability of judicial review under the APA,’’ id., and gave aggrieved parties 30 

days to seek judicial review. 25 C.F.R. § 151.12(b). Congress must ensure that 

States and local communities are able to obtain judicial review of initial trust 

acquisitions and proposed use changes. Further, the Department has continued 

to take the position that ‘‘action will continue to be barred by the [Quiet Title 

Act, 28 U.S.C. § 2409a] after the United States formally acquires title.’’ Dep’t 

of the Interior, 519 U.S. at 920. To ensure that States and local communities— 

and other parties aggrieved by a trust acquisition or a change in the use of 

trust land—have the ability to obtain judicial review, Congress should waive 

the sovereign immunity of the United States as to claims arising out of trust 

acquisitions or decisions to permit a tribe to materially change the use of existing trust land. 

Procedural fairness and adequate opportunity to comment are essential to the 

public’s confidence in these critical, often far-reaching decisions. 

I appreciate the committee’s continued concern regarding trust land procedures 

and look forward to working with it on this issue of critical importance to Tribes, 

communities and governments. 

Mr. KILDEE. Thank you, attorney general. 

53 

Our next witness is Mr. Steven Woodside, Sonoma County, on 

behalf of the California State Association of Counties, Sacramento, 

California. 

STATEMENT OF STEVEN WOODSIDE, SONOMA COUNTY COUNSEL, ON BEHALF OF THE CALIFORNIA STATE ASSOCIATION 

OF COUNTIES, SACRAMENTO, CALIFORNIA 

Mr. WOODSIDE. Thank you, Mr. Kildee, Mr. Hastings, and may 

it please the Committee. Thank you for hearing from local government here today. 

My name is Steven Woodside, and I serve as County Counsel for 

the County of Sonoma. Some of you may associate the name 

Sonoma with great wine or with 100 miles of spectacular coastline 

north of the Golden Gate Bridge. But you may not know that the 

word Sonoma is from the Pomo language and has been translated 

into English in various ways. My personal favorite translation is 

that Sonoma means a gathering place of nice people. 

Speaking of nice people, we have five Federally recognized tribes 

in Sonoma County. Two of the tribes have continuously resided on 

lands held for their benefit by the Federal government since the 

1930s, perhaps earlier. Another two tribes were recognized as a result of lawsuits, one in 1983, one in 1991. And the fifth tribe was 

recognized directly as a result of an act of Congress in the year 

2000. 

My office has been in litigation with, has negotiated with and 

participated in administrative proceedings involving these tribes 

and tribal trust lands. There are at the present time two applications to place land into trust. The Department of the Interior, however, does not allow us to review those applications at this time. 

So Sonoma County is frustrated, but we are not alone among county governments who are frustrated by the process by which lands 

are taken into trust. 

I appear before you today, as Mr. Kildee has said, on behalf of 

the California State Association of Counties. It is an organization 

that represents all 58 counties within California, in which more 

than 100 tribes have been recognized by the Federal government 

and in which there are about 70 pending trust land applications. 

We submitted formal written testimony to the Committee and to 

your staff expressing our concerns about the fee to trust process 

and making suggestions on how the process can be fixed. But we 

respectfully submit that the fee to trust process is broken and that 

it is broken for all parties. It is fraught with uncertainty, delay and 

conflict. 

A so-called simple Carcieri fix does nothing to repair the underlying problems in the process. County governments are heavily impacted by fee to trust decisions. Trust acquisitions often increase 

demands for law enforcement, fire protection, health, social services, water and other resources provided by counties without providing any mitigation for the burdens that are created. 

When land is placed into trust, as General Blumenthal said, it 

reduces the property tax base for counties. It takes the property 

out of local land use jurisdiction. But, despite these impacts, the 

Department of the Interior does not provide sufficient notice regarding fee to trust applications. It does not accord county concerns 

54 

adequate weight in the process. And perhaps most egregiously, as 

determinations are made whether property qualifies as Indian 

land, which is a critical determination with respect to a gaming application, counties are not notified of such determination requests. 

We strongly believe that the process would benefit greatly from 

local participation to ensure that there is a complete factual basis 

on which to make an objective decision. 

The Federal process is also flawed in that it does not require 

tribes to engage in good faith discussions regarding mitigation of 

environmental impacts of the tribal development or enter into enforceable mitigation agreements with local governments. Indeed, 

the Bureau of Indian Affairs will not even facilitate such discussions as it believes that its trust responsibility to tribes prevents 

it from fully engaging with local governments. 

These concerns are not just the concerns of California but also 

expressed in the National Association of Counties platform, which 

has also been submitted to the Committee. We submit that if Congress adopts a quick fix, it would be retreating from its Constitutional role under the Indian Commerce Clause and would be delegating this critical function without adequate direction to the executive branch. A quick fix would perpetuate the problems that have 

resulted in years of expensive and unproductive conflict between 

tribes and local governments. 

We want a real and lasting fix. In our view, an amendment to 

the 1934 Act that extends tribal trust land authority to the Secretary of the Interior should include: [1] adequate notice to local 

government, [2] a requirement to hear local government concerns, 

[3] a requirement that tribes and local governments work together, 

and, finally, to provide for cooperating agreements that are enforceable. 

The bills before you today fall short because they do not address 

the problems in the underlying trust process that have emerged 

during the last 75 years and instead they would authorize the Secretary to continue business as usual. 

California counties stand ready to work with this Committee and 

with the Administration to develop a new process that is founded 

upon mutual respect and encourages local governments and tribes 

to work together on a government-to-government basis in a manner 

that will benefit all parties. This is a historic opportunity. We urge 

you to work with counties across the Nation to ensure that this opportunity is not missed. Thank you. 

[The prepared statement of Mr. Woodside follows:] 

Statement of Steven M. Woodside, County Counsel for Sonoma County, 

on behalf of the California State Association of Counties 

Chairman Rahall and Honorable Members of the Committee: 

This testimony is submitted on behalf of the California State Association of Counties (CSAC), which is the unified voice on behalf of all 58 of California’s counties. 

For perspective on CSAC’s activities and approach to Indian Affairs matters, we are 

attaching the CSAC Congressional Position Paper on Indian Affairs issued in 

March, 2009. Our intent in this testimony is to provide a perspective from California’s counties regarding the significance of the Supreme Court’s recent decision in 

Carcieri v. Salazar, and to recommend measures for the Committee to consider as 

it seeks to ‘‘fix’’ or address the implications of this decision in legislation. CSAC believes that the experience of our county government members in the State of California is similar to that of county and local governments throughout the nation 

where trust land issues have created significant and, in many cases, unnecessary 

55 

conflict and distrust of the federal decision-making system for trust lands. The 

views presented by CSAC also reflect policy positions of many State Attorneys General and the National Association of Counties (NACo) all of whom are committed 

to the creation of a fee to trust process where tribal interests can be met and legitimate state and local interests properly considered (see attached policies). 

It is from this local government experience and concern about the fee to trust 

process that we address the implications of the Carcieri decision. On February 24, 

2009, the U.S. Supreme Court issued its landmark decision on Indian trust lands 

in Carcieri v. Salazar. This decision held that the Secretary of the Interior lacks 

authority to take land into trust on behalf of Indian tribes that were not under the 

jurisdiction of the federal government upon enactment of the Indian Reorganization 

Act (IRA) in 1934. 

In the wake of this significant court decision, varied proposals for reversing or reinstating authority for trust land acquisitions are being generated, some proposing 

administrative action and others favoring a Congressional approach. Today’s hearing is recognition of the implications of the Carcieri decision and appreciation of the 

need to consider a legislative resolution. We are in full agreement that a Congressional resolution is required, rather than an administrative one, but we urge that 

addressing the Supreme Court decision in isolation of the larger problems of the fee 

to trust system misses an historic opportunity. A legislative resolution that hastily 

restores the trust land system to its status before Carcieri will be regarded as unsatisfactory to counties, local governments, and the people we serve. Rather than 

a ‘‘fix’’ such a solution will only perpetuate the current problem. A situation where 

the non-tribal entities most effected by the fee to trust process are without a meaningful role, thereby ultimately undermining the respectful government to government relationships necessary for both tribes and neighboring governments to fully 

develop, thrive, and serve the people dependent upon them for their well being. 

Recommendation 

Our primary recommendation to this committee, to our delegation, and to the 

Congress, is this: Do not advance an immediate Congressional response to Carcieri, 

which allows the Secretary of the Interior to return to the flawed fee to trust process. Rather, carefully examine, with oversight and other hearings which include participation by tribal, state and local governments, what reforms are necessary to ‘‘fix’’ 

the fee to trust process and refine the definition of Indian lands under IGRA. Concurrently, request that the Secretary of the Interior determine the impacts of 

Carcieri, as to the specific tribes affected and nature and urgency of their need, so 

that a more focused and effective legislative remedy can be undertaken. 

What the Carcieri decision presents, more than anything else, is an opportunity 

for Congress to carefully exercise its constitutional authority for trust land acquisitions, to define the respective roles of Congress and the executive branch in trust 

land decisions, and to establish clear and specific Congressional standards and processes to guide trust land decisions in the future, whether made by Congress, as provided in the Constitution, or the executive branch under a Congressional grant of 

authority. It should be noted that Congress has power not to provide new 

standardless authority to the executive branch for trust land decisions and instead 

retain its own authority to make these decisions on a case by case basis as it has 

done in the past, although decreasingly in recent years. Whether or not Congress 

chooses to retain its authority or to delegate it in some way, it owes it to tribes and 

to states, counties, local governments and communities, to provide clear direction to 

the Secretary of Interior to make trust land decisions according to specific Congressional standards and to eliminate much of the conflict inherent in such decisions 

under present practice. 

CSAC will respectfully ask that our state delegation assume a leadership role to 

address both sides of the problem in any legislation seeking to re-establish the trust 

land process post-Carcieri: 1) the absence of authority to acquire trust lands, which 

affects post-1934 tribes, and 2) the lack of meaningful standards and a fair and open 

process, which affects states, local governments, businesses and non-tribal communities. As Congress considers the trust land issue to fix Carcieri, it should undertake 

reform that is in the interests of all affected parties. The remainder of our testimony 

addresses the trust land process, the need for its reform, and the principal reforms 

to be considered. 

The Problem with the Current Trust Land Process 

The fundamental problem with the trust acquisition process is that Congress has 

not set such standards under which any delegated trust land authority would be applied by BIA. Section 5 of the IRA, which was the subject of the Carcieri decision, 

reads as follows: ‘‘The Secretary of the Interior is hereby authorized in his discreVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6621 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
56 

tion, to acquire [by various means] any interest in lands, water rights, or surface 

rights to lands, within or without reservations—for the purpose of providing land 

to Indians.’’ 25 U.S.C. § 465. This general and undefined Congressional guidance, as 

implemented by the executive branch, and specifically the Secretary of the Interior, 

has resulted in a trust land process that fails to meaningfully include legitimate interests, to provide adequate transparency to the public, or to demonstrate fundamental balance in trust land decisions. The unsatisfactory process, the lack of transparency and the lack of balance in trust land decision-making have all combined to 

create significant controversy, serious conflicts between tribes and states, counties 

and local governments, and broad distrust of the fairness of the system. 

All of these effects can and should be avoided. Because the Carcieri decision has 

definitively confirmed the Secretary’s lack of authority to take lands into trusts for 

post-1934 tribes, Congress now has the opportunity not just to address the authority 

issue by restoring the current failed system, but to reassert its primary authority 

for these decisions by setting specific trust land standards that address the main 

shortcomings of the current trust land process. Some of the more important new 

standards are described below. 

Notice and Transparency 

1) Require full disclosure from the tribes on trust land applications and other 

Indian land decisions, and fair notice and transparency from the BIA. The Part 151 

regulations are not specific and do not require sufficient information about tribal 

plans to use the land proposed for trust status. As a result, it is very difficult for 

affected parties (local and state governments, and the affected public) to determine 

the nature of the tribal proposal, evaluate the impacts and provide meaningful comments. BIA should be directed to require tribes to provide reasonably detailed information to state and affected local governments, as well as the public, about the proposed uses of the land early on, not unlike the public information required for planning, zoning and permitting on the local level. This assumes even greater importance since local planning, zoning and permitting are being preempted by the trust 

land decision, and therefore information about intended uses is reasonable and fair 

to require.q 

Legislative and regulatory changes need to be made to ensure that affected governments receive timely notice of fee-to-trust applications and petitions for Indian 

Land Determinations in their jurisdiction and have adequate time to provide meaningful input. For example, the Secretary should be required to seek out and carefully consider comments of local affected governments on Indian gaming proposals 

subject to the two-part test determination that gaming would be in the best interest 

of the tribe and not detrimental to the surrounding community (25 U.S.C. 2719 

(b)(1)(A)). This change would recognize the reality of the impacts tribal development 

projects have on local government services and that the success of these projects are 

maximized by engagement with the affected jurisdictions. Indeed, in most cases 

CSAC believes that the two-part process as provided in Section 20 of IGRA should 

be the process used for land applications for gaming purposes. 

Indian lands determinations, a critical step for a tribe to take land into trust for 

gaming purposes, is conducted in secret without notice to affected counties or any 

real opportunity for input. Incredibly, counties are often forced to file a Freedom of 

Information Act (FOIA) request to even determine if an application was filed and 

the basis for the petition. 

2) The BIA should define ‘‘tribal need’’ and require specific information about need 

from the tribes. The BIA regulations provide inadequate guidance as to what constitutes legitimate tribal need for trust land acquisition. There are no standards 

other than that the land is necessary to facilitate tribal self-determination, economic 

development or Indian housing. These standards can be met by virtually any trust 

land request, regardless of how successful the tribe is or how much land it already 

owns. As a result, there are numerous examples of BIA taking additional land into 

trust for economically and governmentally self-sufficient tribes already having 

wealth and large land bases. 

Our suggestion is that ‘‘need’’ is not without limits. Congress should consider explicit limits on tribal need for more trust land so that the trust land acquisition 

process does not continue to be a ‘‘blank check’’ for removing land from state and 

local jurisdiction. CSAC does not oppose the use by a tribe of non-tribal land for 

development provided the tribe fully complies with state and local government laws 

and regulations applicable to all other development, including full compliance with 

environmental, health and safety laws. 

3) Applications should require specific representations of intended uses. Changes 

in use should not be permitted without further reviews, including environmental impacts, and approval or denial as the review indicates. Such further review should 

57 

have the same notice and comment and consultation as the initial application. The 

law should be changed to specifically allow restrictions and conditions to be placed 

on land going into trust that further the interests of both affected tribes and other 

governments. 

The Decision Process and Standards 

1) A new paradigm for working with counties and local governments. Notice for 

trust and other land actions for tribes that go to counties and other governments 

is very limited in coverage and opportunity to comment is minimal; this must 

change. A new paradigm is needed where counties are considered meaningful and 

constructive stakeholders in Indian land related determinations. For too long counties have been excluded from meaningful participation in critical Department of the 

Interior (DOI) decisions and policy formation which directly affects their communities. This remains true today as evidenced by new fee to trust policies now being 

announced by the Administration without any input from local government organizations. 

The corollary is that consultation with counties and local governments must be 

real, with all affected communities and public comment. Under Part 151, BIA does 

not invite, although will accept review and comment by third parties, even though 

they may experience major negative impacts. BIA only accepts comments from the 

affected state and the local government with legal jurisdiction over the land and, 

from those parties, only on the narrow question of tax revenue loss and zoning conflicts. As a result, under current BIA practice, trust acquisition requests are reviewed under a very one-sided and incomplete record that does not provide real consultation or an adequate representation of the consequences of the decision. 

To begin to address these issues, CSAC recommends that within the BIA an office 

be created to act as liaison for tribes and local and state government. This office 

would be a point of contact to work with non-tribal governments to insure they have 

the information necessary regarding DOI programs and initiatives to help foster cooperative government-to-government relations with tribes. As part of this paradigm 

shift, local governments would be consulted, in a manner similar to that as tribes, 

on proposed rule changes and initiatives that may impact counties and the people 

they serve. 

2) Establish standards that require that tribal and non-tribal interests be balanced in considering the impacts of trust land decisions. BIA requests only minimal 

information about the impacts of such acquisitions on local communities and BIA 

trust land decisions are not governed by a requirement to balance the benefit to the 

tribe against the impact to the local community. As a result there are well-known 

and significant impacts of trust land decisions on communities and states, with consequent controversy and delay and distrust of the process. It should be noted that 

the BIA has the specific mission to serve Indians and tribes and is granted broad 

discretion to decide in favor of tribes. 

For this reason, any delegation of authority to the Secretary by Congress should 

consider placing decision-making responsibility for trust lands in some agency or entity without the mission conflicts of the BIA. However the delegation of authority 

is resolved, Congress must specifically direct clear and balanced standards that ensure that trust land requests cannot be approved where, considering the negative 

impacts to other parties, the benefit to the tribe cannot be justified. 

3) Limit the use of trust land to the tribe’s declared purpose. One of the most 

problematic aspects of tribal trust acquisition is that once the land is acquired, BIA 

takes the position that the property can be used for any purpose regardless of what 

the initial tribal application proposed. For example, land acquired for tribal residential purposes can be changed to commercial use without any further review or comment by affected parties, regardless of the impacts. By allowing for un-reviewed 

changes in use, BIA has created an opportunity for the trust land acquisition process to be abused by tribes that seek to hide the true intent of their requests or that 

simply find it convenient to develop a different use after acquisition. In recent years 

the hidden purpose has often been the intent to develop a casino but avoid a real 

analysis of its impacts. The trust acquisition process should be reconstructed under 

Congressional direction to prohibit changes in the type of use unless a supplemental 

public review and decision-making process takes place or to otherwise allow restrictions and conditions to be placed on the land when it goes into trust status. 

4) For calculating tax losses for local governments, the valuation should be based 

on the proposed use of the land. BIA maintains that the evaluation of the tax loss 

impacts of taking land into trust should be based solely on the current use of the 

land, not what it will be developed for after acquisition. Often the current use is 

‘‘undeveloped,’’ with minimal tax value, whereas the proposed use is high-value commercial or gaming. We strongly suggest that when a tribe proposes a specific afterVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6621 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
58 

trust acquisition use of the land that is new or different from current use before 

the acquisition, BIA should be required to value the revenue loss to local governments on the proposed or intended basis to help support the county and other local 

government services that often will be provided to the new development. 

Federal Sovereign Immunity 

BIA argues that once title to land acquired in trust transfers to the United States, 

lawsuits challenging that action are barred under the Quiet Title Act because federal sovereign immunity has not been waived. This is one of the very few areas of 

federal law where the United States has not allowed itself to be sued. The rationale 

for sovereign immunity should not be extended to trust land decisions, which often 

are very controversial and used to promote reservation shopping that enrich nontribal investors at the expense of local governments. Third parties should have the 

right to challenge harmful trust land decisions, and BIA should not be allowed to 

shield its actions behind the federal government’s sovereign immunity. 

Intergovernmental Agreements and Tribal-County Partnerships 

CSAC has consistently advocated that Intergovernmental Agreements be required 

between a tribe and local government affected by fee-to-trust applications to require 

mitigation for all adverse impacts, including environmental and economic impacts 

from the transfer of the land into trust. Such an approach is required and working 

well under recent California State gaming compacts. As stated above, if any legislative modifications are made, CSAC strongly supports amendments to IGRA that require a tribe, as a condition to approval of a trust application, to negotiate and sign 

an enforceable Intergovernmental Agreement with the local county government to 

address mitigation of the significant impacts of gaming or other commercial activities on local infrastructure and services. 

Under the new model advocated by CSAC, the BIA would be charged to assist 

tribes and counties to promote common interests through taking advantage of appropriate federal programs. For example, the BIA could play a productive role in 

helping interested governments take advantage of such programs as the Energy Policy Act of 2005 (to develop sustainable energy sources); the Indian Reservation 

Roads Program (IRR) (to clarify jurisdictional issues and access transportation funds 

to improve tribal and county roads serving tribal government); and Indian Justice 

System funding (to build collaboration between county and tribal public safety officials to address issues of common concern). 

California’s situation and the need for a suspension of fee-to-trust 

application processing 

At present, there are over 70 applications from California tribes to take land into 

trust for purposes representing almost 7,000 acres of land (at least 10 of these applications seek to declare the properties ‘‘Indian lands’’ and therefore eligible for gaming activities under IGRA). California’s unique cultural history and geography, and 

the fact that there are over 100 federally-recognized tribes in the state, contributes 

to the fact that no two of these applications are alike. Some tribes are seeking to 

have land located far from their aboriginal location deemed ‘‘restored land’’ under 

IGRA, so that it is eligible for gaming even without the support of the Governor or 

local communities, as would be otherwise required. 

The U.S. Supreme Court’s recent decision in Carcieri further complicates this picture. The Court held that the authority of the Secretary of the Interior to take land 

into trust for tribes extends only to those tribes under federal jurisdiction in 1934, 

when the Indian Reorganization Act (IRA) was passed. However the phrase ‘‘under 

federal jurisdiction’’ is not defined. CSAC’s interpretation of the decision is that land 

should not be placed into trust under the IRA unless a tribe was federally 

recognized in 1934. This type of bright line rule provides clarity and avoids endless 

litigation. 

However, many California tribes are located on ‘‘Rancherias’’ which were originally federal property on which homeless Indians were placed. No ‘‘recognition’’ was 

extended to most of these tribes at that time. If a legislative ‘‘fix’’ is considered to 

the decision, it is essential that changes are made to the fee-to-trust processes to 

ensure improved notice to counties and to better define standards to remove property from local jurisdiction. Requirements must be established to ensure that the 

significant off-reservation impacts of tribal projects are fully mitigated. In particular, any new legislation should address the significant issues raised in states 

like California, which did not generally have a ‘‘reservation’’ system, and that are 

now faced with small Bands of tribal people who are recognized by the federal government as tribes and who are anxious to establish large commercial casinos. 

In the meantime, CSAC strongly urges the Department of the Interior to suspend 

further fee-to-trust land acquisitions until Carcieri’s implications are better underVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
59 

stood and new regulations promulgated (or legislation passed) to better define when 

and which tribes may acquire land, particularly for gaming purposes. 

The Bills 

As stated above, while CSAC supports a ‘‘Carcieri fix’’ it most be one which addresses the critical repairs needed in the fee to trust process. Both H.R. 3697 and 

H.R. 3762, while redefining the word ‘‘now’’ to resolve the question at issue in the 

Carcieri case, fail to set clear standards for taking land into trust, to properly balance the roles of tribes, state, local and federal governments in these decisions, and 

to clearly address the apparent usurpation of authority by the Executive Branch 

over Congress’ constitutional authority over tribal recognition. H.R. 3742, in particular, serves to expand the undelegated power of the Department of the Interior 

by expanding the definition of an Indian tribe under the IRA to any community the 

Secretary of the Interior ‘‘acknowledges to exist as an Indian Tribe.’’ In doing so, 

particularly in California, the effect of the bill is to facilitate off reservation gaming 

by tribes and perpetuate the inconsistent standards that have been used to create 

tribal entities. Such a ‘‘solution’’ causes controversy and conflict rather than an open 

process which, particularly in California, is needed to address the varied circumstances of local governments and tribes. 

Conclusion 

We ask that you incorporate these requests into any Congressional actions that 

may emerge regarding the Carcieri decision. Congress must take the lead in any 

legal repair for inequities caused by the Carcieri decision but absolutely should not 

do so without addressing these reforms. These are common-sense reforms that, if 

enacted, will eliminate some of the most controversial and problematic elements of 

the current trust land acquisition process. The result would help states, local governments and non-tribal stakeholders. It also would assist trust land applicants by 

guiding their requests to fair and equitable results and, in doing so, reduce the 

delay and controversy that now routinely accompany acquisition requests. 

We also urge the committee to reject any ‘‘one size fits all’’ solution to these 

issues. In CSAC’s view, IGRA itself has often represented such an approach, and 

as a result has caused many problems in a State like California, where the sheer 

number of tribal entities and the great disparity among them, requires a thoughtful 

case-by-case analysis of each tribal land acquisition decision. 

Thank you for considering these views. Should you have questions regarding our 

testimony or if CSAC can be of further assistance please contact DeAnn Baker, 

CSAC Senior Legislative Representative, at (916) 327-7500 ext. 509 or at 

dbaker@counties.org. 

CSAC Congressional Position Paper on Indian Affairs 

March 2009 

The California State Association of Counties (CSAC) is the single, unified voice 

speaking on behalf of all 58 California counties. Due to the impacts related to large 

scale tribal gaming in California, Indian issues have emerged as one of CSAC’s top 

priorities. To address these issues CSAC adopted specific policy guidelines concerning land use, mitigation of tribal development environmental impacts, and jurisdictional questions arising from tribal commercial ventures (attached). There are at 

least two key reasons for this keen interest. First, counties are legally responsible 

to provide a broad scope of vital services for all members of their communities. Second, tribal gaming and other economic development projects have rapidly expanded, 

creating a myriad of economic, social, environmental, health, and safety impacts. 

The facts clearly show that the mitigation and costs of such impacts increasingly 

fall upon county government. 

In recognition of these interrelationships, CSAC strongly urges a new model of 

government-to-government relations between tribal and county governments. Such 

a model envisions partnerships which seek both to take advantage of mutually beneficial opportunities and insure that significant off-reservation impacts of intensive 

tribal economic development are fully mitigated. Towards this end, counties urge 

policy and legislative modifications which require consultation and adequate notice 

to counties regarding proposed rule changes, significant policy modifications, and 

various Indian lands determinations. As part of this effort CSAC favors creation of 

a Bureau of Indian Affairs (BIA) local government liaison to facilitate county tribal 

partnerships. 

60 

Introduction 

At the outset, CSAC reaffirms its absolute respect for the authority granted to 

federally recognized tribes and its support for Indian tribal self-governance and economic self-reliance. The experience of California counties, however, is that existing 

laws fail to address the unique relationships between tribes and counties. 

Every Californian, including all tribal members, depends upon county government 

for a broad range of critical services, from public safety and human services, to 

waste management and disaster relief. In all, California counties are responsible for 

nearly 700 programs, including sheriff, public health, child and adult protective 

services, jails and roads and bridges. 

Most of these services are provided to residents both outside and inside city limits. It is no exaggeration to say that county government is essential to the quality 

of life for over 35 million Californians. No other form of local government so directly 

impacts the daily lives of all citizens. In addition, because county government has 

very little authority to independently raise taxes and increase revenues, the ability 

to be consulted about and adequately mitigate reservation commercial endeavors is 

critical. 

The failure to include counties as a central stakeholder in federal government decisions affecting county jurisdictional areas has caused unnecessary conflict with 

Indian tribes. To address these issues CSAC has regularly testified and commented 

on congressional proposals and administrative rulemaking in this important area. 

Currently, three overall issues facing the new Administration and Congress are of 

preeminent importance. 

Consultation and Notice 

A new paradigm is needed where counties are considered meaningful and constructive stakeholders in Indian land related determinations. For too long counties 

have been excluded from meaningful participation in critical Department of the Interior (DOI) decisions and policy formation which directly affects their communities. 

For example, Indian lands determinations, a critical step for a tribe to take land 

into trust for gaming purposes, is conducted in secret without notice to affected 

counties or any real opportunity for input. Incredibly, counties are often forced to 

file a Freedom of Information Act (FOIA) request to even determine if an application 

was filed and the basis for the petition. 

To begin to address these issues, CSAC recommends that within the BIA an office 

be created to act as liaison for tribes and local and state government. This office 

would be a point of contact to work with non-tribal governments to insure they have 

the information necessary regarding DOI programs and initiatives to help foster cooperative government to government relations with tribes. As part of this paradigm 

shift local governments would be consulted, in a manner similar to that as tribes, 

on proposed rule changes and initiatives that may impact counties. 

In addition, legislative and regulatory changes need to be made to insure that affected governments receive timely notice of fee to trust applications and petitions 

for Indian land determinations in their jurisdiction and have adequate time to provide meaningful input. For example, the Secretary should be required to seek out 

and carefully consider comments of local affected governments on Indian gaming 

proposals subject to the two-part test determination that gaming would be in the 

best interest of the tribe and not detrimental to the surrounding community (25 

U.S.C. 2719 (b)(1)(A)). This change would recognize the reality of the impacts tribal 

development projects have on local government services and that the success of 

these projects are maximized by engagement with the affected jurisdictions. 

Fee-to-Trust Acquisitions 

Suspension of Fee-to-Trust Applications 

At present, there are over 70 applications from California tribes to take land into 

trust for purposes representing almost 7,000 acres of land (at least 10 of these applications seek to declare the properties ‘‘Indian lands’’ and therefore eligible for gaming activities under IGRA). California’s unique cultural history and geography, and 

the fact that there are over 100 federally-recognized tribes in the state, contribute 

to the fact that no two of these applications are alike. Some tribes are seeking to 

have lands located far from their aboriginal location deemed ‘‘restored land’’ under 

IGRA, so that it is eligible for gaming even without the support of the Governor or 

local communities, as would be otherwise required. 

The U.S. Supreme Court’s recent decision in Carcieri v. Salazar (2009; No. 07- 

526) further complicates this picture. The Court held that the authority of the Secretary of Interior to take land into trust for tribes extends only to those tribes under 

federal jurisdiction in 1934, when the Indian Reorganization Act (IRA) was passed. 

However the phrase ‘‘under federal jurisdiction’’ is not defined. CSAC’s interpretaVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
61 

tion of the decision is that land should not be placed into trust under the IRA unless 

a tribe was federally recognized in 1934. This type of bright line rule provides clarity and avoids endless litigation. 

However, many California tribes are located on ‘‘Rancherias’’ which were originally federal property on which homeless Indians were placed. No ‘‘recognition’’ was 

extended to most of these tribes at that time. If a legislative ‘‘fix’’ is considered to 

address the decision, it is essential that changes be made to the fee-to-trust process 

that insure improved notice to counties, better defined standards to remove the 

property from local jurisdiction, and requirements that the significant off-reservation impacts of tribal projects are fully mitigated. 

In the meantime, CSAC strongly urges the Department of Interior to suspend further fee-to-trust land acquisitions until Carcieri’s implications are better understood 

and new regulations promulgated (or legislation passed) to better define when and 

which tribes may acquire land, particularly for gaming purposes. 

Mitigation Agreements 

CSAC has consistently advocated that Intergovernmental Agreements be required 

between a tribe and local government affected by fee-to-trust applications to require 

mitigation for all adverse impacts, including environmental and economic impacts 

from the transfer of the land into trust. As stated above, if any legislative modifications are made, CSAC strongly supports amendments to IGRA that require a tribe, 

as a condition to approval of a trust application, to negotiate and sign an enforceable Intergovernmental Agreement with the local county government to address 

mitigation of the significant impacts of gaming or other commercial activities on 

local infrastructure and services. 

Tribal County Partnerships 

Under the new model advocated by CSAC, the BIA would be charged to assist 

tribes and counties to promote common interests through taking advantage of appropriate federal programs. For example, the BIA could play a productive role in 

helping interested governments take advantage of such programs as the Energy Policy Act of 2005 (to develop sustainable energy sources); the Indian Reservation 

Roads Program (IRR) (to clarify jurisdictional issues and access transportation funds 

to improve tribal and county roads serving tribal government); and Indian Justice 

System funding (to build collaboration between county and tribal public safety officials to address issues of common concern. 

CSAC is committed to collaboratively addressing these important issues which so 

significantly affect our communities. 

For further information please contact DeAnn Baker, CSAC Legislative Representative at (916) 327-7500 ext. 509 or at dbaker@counties.org or Kiana Buss, 

CSAC Legislative Analyst at (916) 327-7500 ext. 566 or kbuss@counties.org. 

Mr. KILDEE. Thank you very much, Mr. Woodside. 

Our next witness is Mr. Riyaz Kanji of Kanji & Katzen, on behalf 

of the Grand Traverse Band of Ottawa, Chippewa ́ Indians. Mr. 

Kanji. 

STATEMENT OF RIYAZ KANJI, KANJI & KATZEN, PLLC, ON 

BEHALF OF THE GRAND TRAVERSE BAND OF OTTAWA AND 

CHIPPEWA INDIANS, ANN ARBOR, MICHIGAN 

Mr. KANJI. Chairman Kildee, Ranking Member Hastings, 

honorable members of the Committee, I very much appreciate the 

invitation to appear before the Committee today. 

I speak here on behalf of the Grand Traverse Band of Ottawa 

and Chippewa ́ Indians, a tribe well known to Chairman Kildee. I 

was accompanied by the Band’s Chairman, The Honorable Derrick 

Bailey, who unfortunately had to depart during the adjournment. 

I would like to touch very briefly on the Band’s history and use 

it to illustrate what I believe to be the compelling reasons why 

H.R. 3697 and H.R. 3742 should be reported favorably out of this 

Committee and enacted into law. The Band’s history tracks the fact 

62 

pattern that Chairman Kildee alluded to in one of his questions 

earlier. 

The United States first recognized the Band in the 1795 Treaty 

of Greenville and then entered into a series of subsequent treaties 

with the Band and other Michigan tribes in the 19th century, most 

notably the 1836 Treaty of Washington and the 1855 Treaty of Detroit. 

However, in 1872, Secretary of the Interior Columbus Delano, 

acting on his own, misread the 1855 Treaty of Detroit as calling for 

the termination of the relationship between the Federal government and the signatory tribes. And from that point forward, the 

Department of the Interior, acting without Congressional blessing, 

ceased to recognize any of those signatory tribes. 

The consequences of that action for the Grand Traverse Band 

and the sister tribes were devastating. The Band suffered through 

decades of increasing poverty and the destruction of its land base. 

But the Band maintained its cohesiveness and identity as a Native 

American tribe and fought ceaselessly to be restored to Federal recognition. Those efforts bore fruit in 1980 when the Band was the 

first tribe to be acknowledged by the Department of the Interior 

under the new Federal acknowledgment process. 

Because Congress never terminated Federal jurisdiction over the 

tribe because it maintained its cohesiveness as a Native American 

tribe, the Band is confident that it can establish that it remained 

under Federal jurisdiction in 1934 and hence even under the terms 

of the Carcieri decision remains entitled to the protections of the 

IRA. 

However, the Band strongly urges the enactment of 3697 and 

3742 into law for several compelling reasons. First, it is unclear if 

or when the Department will act on the Band’s submission that it 

remained under Federal jurisdiction and on its pending trust applications. We hear a lot about the trust process. The Attorney General referred to it as lawless. I think it is important to remember 

that many land-into-trust applications, which are the lifeblood of 

tribal governments, are noncontroversial, are nongaming related. 

The Band currently has eight applications pending before the Department. All are within the Band’s historic territory. All are contiguous to existing trust lands. None are for gaming purposes. 

None are objected to by the State of Michigan or by any local unit 

of government. But action on those is stalled and will remain 

stalled unless either the Department acts or we get Congressional 

action. Even if the Department were to take favorable action, that 

would not relieve the Band of the specter of years of seemingly 

endless litigation, which threaten to continue to disrupt the Band’s 

exercise of its sovereign powers. 

The attorneys general of 17 states in a letter to this Committee 

in April signaled their intention to take a very cramped view of the 

Carcieri decision as holding that only those tribes that were actually Federally recognized in 1934 are entitled to the protections of 

the IRA. Litigation over that or other theories could endure for a 

decade or more and could forestall favorable resolution of these 

issues. 

Just by way of illustration, the Carcieri decision itself was filed 

in July of the year 2000. As this Committee knows, the Supreme 

63 

Court handed down its decision in February of 2009. And as the 

Committee further knows, that Supreme Court decision raised 

more questions than it answered. So failure to act with legislation 

could threaten tribes and other units of government with a decade 

or more of further litigation. 

It would be fundamentally unfair and serve no good purpose I 

would submit to put the Band and similarly situated tribes through 

another decade or more of disruption that would be engendered by 

further litigation over the meaning of the IRA. The Band’s history 

demonstrates in compelling fashion that it was not through any 

fault of its own, through none of its actions, through no issues having to do with its own identity that it was not Federally recognized 

as of 1934. To now deny the Band the protections of the IRA or to 

force it and similarly situated tribes through another decade of litigation would simply compound the historical injustices suffered by 

the band as the result of decades of misguided Federal action. 

The principal argument that we hear today and otherwise in opposition to the straightforward but fundamentally important corrective legislation that has been proposed is that the entire landinto-trust process should be reexamined as part of any Carcieri fix. 

I think that is tantamount to arguing that where a patient comes 

into a hospital with a severely injured knee the doctors should not 

operate on that knee but should take critical time to instead examine other parts of the patient’s body and decide whether action 

needs to be taken there. 

The Bands, the tribes themselves, have fundamental concerns 

with the land-into-trust process. The tribes would support a reexamination of that process, but vindication of the fundamentally important principle that all tribes stand on an equal footing and are 

entitled to the protections of the IRA should not await that comprehensive reexamination, which could take years and which could 

just result in further delay and defeat. Thank you very much, Mr. 

Chairman. 

[The prepared statement of Mr. Kanji follows:] 

Statement of Riyaz A. Kanji, Kanji & Katzen, PLLC 

I very much appreciate the invitation to appear before the Committee today. 

By way of brief background, I graduated from the Yale Law School in 1991, 

served as a law clerk to Justice David Souter of the United States Supreme Court 

in the October Term 1994, and have practiced and taught in the field of federal 

Indian law ever since. 

I speak here today on behalf of the Grand Traverse Band of Ottawa and Chippewa Indians (‘‘GTB’’ or the ‘‘Band’’). I am accompanied by the Band’s Chairman, 

The Honorable Derek Bailey. Others have testified before this Committee regarding 

the flaws in the Supreme Court’s holding in Carcieri v. Salazar, 555 U.S.ll, 129 

S.Ct. 1058 (2009), that the protections of the Indian Reorganization Act, 25 U.S.C. 

§ 461 et seq. (‘‘IRA’’), are restricted to those Tribes that were under federal jurisdiction on June 18, 1934, the date of the statute’s enactment. I will not repeat that 

testimony here. Instead, using the Band and its history as an example, I will discuss the compelling reasons why the straightforward but critically important corrective legislation embodied in House Bills 3697 and 3742 should be reported favorably 

out of this Committee and enacted into law. 

A Brief History of the Grand Traverse Band’s Jurisdictional Relationship 

With the United States 

The Band is a federally-recognized Tribe located near Grand Traverse Bay in the 

northwest Lower Peninsula of Michigan. It consists of approximately 4000 members 

who descend primarily from the Odawa (Ottawa) and Ojibwa (Chippewa) peoples of 

the northern Lower Peninsula and eastern Upper Peninsula of Michigan. As the DeVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6621 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
64 

partment of the Interior found in 1980, GTB (and its political forebears) have maintained ‘‘a documented continuous existence in the Grand Traverse Bay area of 

Michigan since at least as early as 1675.’’ Department of the Interior, Determination 

for Federal Acknowledgement of [GTB] as an Indian Tribe (‘‘DOI Acknowledgement 

Determination’’), 45 Fed. Reg. 19321 (March 25, 1980). 

The United States first recognized and established a government-to-government 

relationship with the Band through the Treaty of Greenville, 7 Stat. 49, in 1795. 

See Grand Traverse Band of Ottawa and Chippewa Indians v. Office of U.S. Atty. 

for the Western District of Michigan, 369 F.3d 960, 967 (6th Cir. 2004) (‘‘Grand Traverse Band’’) (‘‘[t]he Band had treaties with the United States and a prior relationship with the Secretary of the Interior at least as far back as 1795’’). The United 

States continued to exercise jurisdiction with respect to GTB through a series of 

nineteenth-century treaties, most notably the 1836 Treaty of Washington, 7 Stat. 

491, and the 1855 Treaty of Detroit, 11 Stat. 621. Between them, those treaties provided for the cession of large swaths of land by GTB and its sister Tribes, reserved 

for the Tribes smaller areas of land for their continued occupation, and further reserved to them off-reservation hunting, fishing and gathering rights. The treaties 

also confirmed for the Tribes the provision of federal services, supplies and annuities, and explicit federal recognition and government-to-government relationships 

with the United States going forward. Grand Traverse Band, 369 F.3d at 961. 

In 1872, however, Secretary of the Interior Columbus Delano, in violation of the 

United States’ solemn treaty obligations, ceased treating GTB and other signatories 

to the 1855 Treaty of Detroit as federally-recognized Tribes. As the Sixth Circuit explained in the Grand Traverse Band case: 

Ignoring the historical context of the treaty language, Secretary Delano interpreted the 1855 treaty as providing for the dissolution of the tribes once 

the annuity payments it called for were completed in the spring of 1872, 

and hence decreed that upon finalization of those payments ‘‘tribal relations 

will be terminated.’’ Letter from Secretary of the Interior Delano to Commission of Indian Affairs at 3 (Mar. 27, 1872). Beginning in that year, the 

Department of the Interior, believing that the federal government no longer 

had any trust obligations to the tribes, ceased to recognize the tribes either 

jointly or separately. 

Grand Traverse Band, 369 F.3d at 961 n.2. The Sixth Circuit concluded that, based 

on Secretary Delano’s misreading of the Treaty of 1855, ‘‘the executive branch of the 

government illegally acted as if the Band’s recognition had been terminated, as evidenced by its refusal to carry out any trust obligations for over one hundred years.’’ 

Id. at 968 (emphasis in original). 

The termination of GTB’s federal recognition had dire consequences for the Band. 

‘‘Because the Department of Interior refused to recognize the Band as a political entity, the Band experienced increasing poverty, loss of land base and depletion of the 

resources of its community.’’ Grand Traverse Band, 369 F.3d at 969 (internal 

quotation marks and citation omitted). The Band, however, maintained its cohesiveness and identity as an Indian Tribe in the difficult years that ensued, DOI Acknowledgement Determination, 45 Fed. Reg. 19321, and for over a century it sought 

to regain federal recognition. Its efforts bore fruit in 1980, when it became the first 

Tribe recognized by the Department of the Interior pursuant to the formal Federal 

Acknowledgment Process, 25 C.F.R. Part 54 (now Part 83). See 45 Fed. Reg. 19321- 

22. 

Since that time, the Department has consistently accorded the Band the benefits 

of the IRA. The Department approved the Band’s Constitution in 1988, and has 

taken 43 parcels of land into trust for the Band totaling just over 1,000 acres. All 

of these trust acquisitions have fallen within the Band’s historic territory surrounding Grand Traverse Bay and have been utilized by the Band for four critical 

governmental purposes: the provision of core governmental services (including tribal 

government offices, a health clinic, courts, law enforcement, social services, and natural resources management); housing (including elders housing constructed with 

HUD grants, and lot assignments to enrolled members for residences); economic development and diversification (two small-to-mid-sized casinos and related businesses); and treaty rights-related activities (preservation of lands utilized for the exercise of hunting, gathering and fishing rights reserved by the 1836 Treaty of Washington (7 Stat. 491)). 

While executive branch officials did not accord formal recognition to the Band between 1872 and 1980, Congress evidenced no intent during this period to terminate 

federal jurisdiction over the Band, 45 Fed. Reg. 19321-22, and the Band never removed itself from the purview of that jurisdiction by disbanding, dissolving or otherwise surrendering its own status as an Indian Tribe. Id. Indeed, Commissioner of 

Indian Affairs John Collier, the architect of the Indian Reorganization Act, engaged 

65 

in correspondence with the federal Indian agent in Michigan shortly prior to the 

passage of the IRA in which he made clear his view that the Band remained under 

the jurisdiction of the federal government. See Attachment to GTB Submission on 

Carcieri’s ‘‘Under Federal Jurisdiction’’ Requirement in Connection With Pending 

Fee-to-Trust Applications (on file with the Committee). In 1994 legislation restoring 

two of the Band’s sister Tribes (the Little River Band of Ottawa Indians and the 

Little Traverse Bay Bands of Odawa Indians) to federal recognition, the Congress 

likewise found that the three Bands had maintained a ‘‘continued social and political existence’’ subsequent to Secretary Delano’s actions and that federal officials including Commissioner Collier had concluded that the Bands were eligible for reorganization under the IRA. See 25 U.S.C. § 1300k (noting the shared history of the 

three Tribes) and § 1300k(5); see also Grand Traverse Band, 369 F.3d at 962 (deeming the jurisdictional history of the Tribes to be ‘‘essentially parallel.’’) 

Accordingly, the Band is confident that it was ‘‘under federal jurisdiction’’ at the 

time of the IRA’s enactment and hence that, pursuant to the Carcieri decision, it 

remains eligible for the protections of the IRA. As Justice Breyer put it in discussing 

GTB’s jurisdictional history in his concurring opinion in Carcieri, that history serves 

as a prime example of the circumstance where ‘‘later recognition [by the executive 

branch] reflects earlier ‘‘Federal jurisdiction.’’ Carcieri, 129 S.Ct. at 1070 (Breyer, 

J., concurring). In June of this year, the Band made a submission to the Interior 

Department in which it detailed these points. 

Fundamental Considerations Support the Enactment of House Bills 3697 

and 3742 into Law 

While the Band is hopeful that the Department will agree with the arguments 

made in its submission and continue to accord it the protections of the IRA, it urges 

the Committee to report favorably on House Bills 3697 and 3742. Several fundamental considerations support the enactment of those Bills into law. 

In the first instance, it is not clear if or when the Department will act on the 

Band’s submission, or on the submissions that have been made by other Tribes in 

the wake of the Carcieri decision. The Band has eight fee-to-trust acquisition requests (totaling approximately 260 acres) pending with the Department. All of these 

proposed trust acquisitions fall within the Band’s historic territory and almost all 

are contiguous to existing trust lands. None are gaming-related. The Band intends 

to use the parcels for housing, the provision of governmental services, and economic 

development and diversification. See Exhibit A (GTB’s Pending Trust Acquisition 

Requests (FY 2009)). None of the proposed acquisitions are objected to by the State 

of Michigan or any local unit of government and the Band understands that a number of these parcels were very close to being placed into trust by the Department. 

However, action on them has stalled in the wake of the Carcieri decision. The indefinite delay is hampering the Band in its efforts to function effectively as a sovereign 

and to provide its citizens with critical governmental and economic services, just as 

Carcieri-induced delays are thwarting the efforts of other Tribes around the country 

to carry out their governmental responsibilities effectively. 

Even if the Department does take favorable action on the Band’s submission and 

pending trust applications, moreover, the specter of seemingly endless litigation will 

continue to haunt the Band and similarly situated Tribes absent the passage of corrective legislation by Congress. In a letter sent to this Committee in April of this 

year, the Attorneys General of seventeen States signaled their intention to take a 

cramped view of the Carcieri decision as holding that only those Tribes that were 

formally recognized as of 1934—rather than those Tribes that were under federal 

jurisdiction at that time—are entitled to the benefits of the IRA. While this is not 

a fair or accurate reading of the decision, litigation over that theory, or over other 

arguments raised in opposition to any decision by the Department to continue according the benefits of the IRA to the Band or similarly situated Tribes, would take 

years to unfold and would cause great uncertainty in the meantime. 

The history of the Carcieri litigation demonstrates vividly just how long the disruption could last. That case was filed on July 31, 2000. The district court rendered 

its decision in September of 2003. The First Circuit handed down its first decision 

in February of 2005, and its en banc decision in July of 2007. The Supreme Court 

then ruled in February of 2009, and as this Committee knows, far from ending the 

controversy over the proper interpretation of the IRA, the Court raised more questions than it answered, including what it means for a Tribe to have been under federal jurisdiction in 1934. 

It would be fundamentally unfair, and serve no good purpose, to put the Band 

and similarly situated Tribes through another decade or more of the disruption that 

will be engendered by further litigation over the meaning of the IRA. The Band’s 

history demonstrates in compelling fashion what is a common fact pattern for many 

66 

Tribes in different parts of the country: the fact that the Band was not officially 

recognized in 1934 had nothing to do with its own actions or identity, but rather 

resulted from grievous errors (or malfeasance) committed by executive branch officials, whose actions imposed great hardship on the Band and its members. To now 

deny the Band the protections of the IRA, or to subject it to the time, expense and 

uncertainty associated with further litigation over the interpretation of the statute, 

would simply compound the harm that the Band suffered for decades as the result 

of misguided federal behavior. It would be a classic case of adding insult to injury, 

except that the terms ‘‘insult’’ and ‘‘injury’’ vastly understate the tremendous loss 

of life, land, and opportunity that GTB and its members experienced during the 

years when the federal government wrongly refused to honor the solemn treaty 

promises it had made to the Band and to recognize the Band as eligible for the protections of the IRA. 

The fundamental inequity of the situation is placed into even sharper relief when 

GTB’s present position is compared to that of two of its sister Tribes in Michigan, 

the Little River Band of Ottawa Indians and the Little Traverse Bay Bands of 

Odawa Indians. As noted above, those Tribes share a similar jurisdictional history 

with GTB. All three were signatories to the 1836 Treaty of Washington and the 

1855 Treaty of Detroit, and all three were victims of Secretary Delano’s misguided 

decision in 1872. However, while GTB was successful in being restored to federal 

recognition by the Department of the Interior in 1980, those two Tribes were stymied by the administrative process, and had to turn to Congress for help. Congress 

then enacted the 1994 legislation previously discussed, in which it restored the 

Tribes to federal recognition and explicitly made the benefits of the IRA applicable 

to them. 25 U.S.C. § 1300(k)-2(a), 4. As a result, those sister Tribes have not had 

to live through the disruption or chaos engendered by the Carcieri litigation, and 

do not have to fear the specter of further such litigation. GTB does not begrudge 

them this fact one bit. Instead, the point is that all federally-recognized Tribes 

should be in the same position of enjoying the protections of the IRA without the 

need for an additional decade or more of litigation to secure those protections. If enacted into law, House Bills 3697 and 3742 would provide all federally-recognized 

Tribes with that basic security. 

In doing so, the Bills would ratify the fundamental principle that all federallyrecognized Tribes stand on an equal footing with one another. The Supreme Court 

and the Congress have long adhered to the equal footing doctrine in pronouncing 

that the fifty states enjoy the same basic sovereign prerogatives, regardless of the 

date of their admission into the Union. That same principle is of no less importance 

when it comes to federally-recognized Tribes, and Congress gave vigorous voice to 

that principle in enacting the 1994 Amendments to the IRA. See 25 U.S.C. § 476(f) 

and (g). The Supreme Court ignored the principle in its Carcieri decision, but Congress, as the branch of government with plenary power over Indian affairs, has another opportunity in the form of the pending legislation to assert the paramount importance of equal tribal standing in federal Indian law. 

The arguments that have been advanced in opposition to the bills pending before 

this Committee pale in comparison to the fundamental considerations of fairness 

and security that support their passage. Those arguments fall into two basic categories. 

First, those opposed to tribal gaming oppose any Carcieri fix on the basis that 

thwarting such a fix may assist, albeit in a very indirect fashion, in curbing the further expansion of such gaming. However, as the Band’s situation vividly illustrates, 

the issue of a Carcieri fix transcends the question of tribal gaming, and in truth 

has very little to do with it. As discussed above, the Band currently has eight landinto-trust applications pending with the Department. The Band seeks to have the 

parcels in question placed into trust in order that it can provide critically needed 

housing and other governmental services to its members, and in order that it can 

engage in economic diversification activities. Like many other Tribes around the 

country, the purpose of its pending trust applications is not to establish new gaming 

facilities. 

As this Committee well knows, Indian gaming is not governed by the IRA, but 

by the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., and by regulations 

promulgated by the Interior Department and the National Indian Gaming Commission that have to do with such gaming. If there are concerns about Indian gaming 

that need to be addressed, IGRA and those regulations are the vehicle through 

which such concerns should be raised. Vindication of the critically important principle that all federally-recognized Tribes stand on an equal footing and are entitled 

to the protections of the IRA should not be derailed by any red herring, including 

the red herring of Indian gaming. To allow this to happen would again be to comVerDate Nov 24 2008 14:03 Nov 30, 2009 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 L:\DOCS\53253.TXT Hresour1 PsN: KATHY
67 

pound the historical injustices suffered by the Tribes that currently are confronting 

the disruption engendered by the Carcieri decision. 

Second, a number of States that have concerns about the land-into-trust process 

have argued that Congress should not enact a straightforward Carcieri fix, but 

should instead perform a comprehensive examination of the land-into-trust process 

first. That is tantamount to arguing that where a patient comes into the hospital 

with a severely damaged knee, the doctors should not operate on the knee, but 

should instead devote critical time and attention to first examining potential problems that the patient may have in other parts of her body. The Carcieri decision 

gave tribal opponents the ammunition to argue that an entire class of Tribes should 

be removed from the protections of the IRA. Those protections transcend the landinto-trust process, and include the ratifications of the Tribes’’ very constitutions and 

the chartering of Tribal corporations. While the Tribes too have significant concerns 

about the land-into-trust process (including the long delays that attend action even 

on unopposed trust acquisitions), the ratification of the simple but vitally important 

principle that all federally-recognized Tribes are entitled to the protections of the 

IRA should not be held hostage to the re-examination of that process. That is simply 

an argument for delay and defeat. If the land-into-trust process is to be re-examined, that re-examination can surely take place once the principle of equality is reaffirmed. 

In closing, the Grand Traverse Band would like to thank the Committee for the 

careful consideration it is giving to House Bills 3697 and 3742, and to urge prompt 

and favorable action on those Bills. 

Mr. KILDEE. Thank you very much. Just as an aside, my father 

lived in the area of where your reservation is, Buckley, Michigan. 

And I can recall I had a hearing up there one time or a meeting, 

and I had announced that I would be holding it on a sovereign territory of your tribe, and I found out at the beginning of the meeting 

we were in the wrong room, that the boundary line of your tribe 

at that time bisected a building, and this room was trust land and 

this room was fee land. So I insisted then we move into the trust 

land. So things get a little complicated at times, but I recall that 

hearing very, very much. 

I know the Attorney General has to leave shortly, so if you do 

not mind, without objection, the rest of you, I will address a question to the Attorney General first, not because of his title, although 


53253.001.eps
68 

I respect that, but because of his schedule, which he has shared 

with us. 

Attorney General, you testified that the Indian Reorganization 

Act should only extend to those tribes Federally recognized in 1934. 

Yet there are numerous tribes for whom Congress ratified treaties, 

had and were providing benefits to but were allegedly not Federally 

recognized in 1934. Please explain how the relationship with these 

tribes was terminated given that Congress took no explicit action 

to terminate its authority over those tribes. 

Mr. BLUMENTHAL. Well, thank you very much for the question 

and for accommodating my schedule. And I do apologize that I may 

have to leave early, although I will stay as long as I can. 

I believe either the Department of the Interior or the Congress 

has to clarify what is meant by that term, ‘‘Federal jurisdiction’’, 

because, as was observed earlier this morning, the Court did not 

do so in its opinion. Justice Thomas on behalf of the Court did not 

do so. Justice Breyer raised the issue in his concurring opinion. 

The Court agreed as to the basic principle, and they correctly decided that principle. 

But the Congress could clarify that issue in the context of a 

broader measure. In my view, that issue would be mooted if it 

adopted the recommendation that I have made, which is that it 

take back authority for all of these fee into trust decisions. And if 

it doesn’t and if the current administrative process continues, then 

it should reform that process to provide notice, standards, adequate 

information, because right now there are none of the basic due 

process standards for communities, local governments, for state 

governments, not to mention for ordinary citizens. 

And I would just conclude by saying I accept the analogy to the 

surgical procedure that is necessary for someone coming into an 

emergency room. And there may be a need for immediate triage 

simply to stop the bleeding, but all the better if the surgical procedure is not a quick fix. And I think everyone testifying, pro and 

con, has referred to it as a fix. It is a quick fix that in the long 

term may do more harm than good. 

And I think that the medical analogy again would teach us first 

do no harm. And if we are worried about litigation, I can predict 

to you 10 more years of crippling litigation in the wake of these two 

measures because they leave the basic legal problems unresolved, 

one of which is involved in your question. 

Mr. KILDEE. Thank you very much. The Chair recognizes the 

Ranking Republican Member of this Committee, Mr. Hastings. 

Mr. HASTINGS. Thank you, Mr. Chairman. I want to follow up on 

the question if I can, General Blumenthal. You mentioned in your 

oral testimony that the process is lawless and you somewhat reiterated that within Department of the Interior. Is the solution to that 

statutory or administratively in your view? 

Mr. BLUMENTHAL. Excellent question, sir. I think it is both, and 

I could expound at greater length, but let me try to be as brief as 

possible. 

Mr. HASTINGS. Do it briefly, but submit if you would for the 

record some specifics. But if you would, please. 

Mr. BLUMENTHAL. I will be happy to. The statute right now is 

exceedingly vague. The IRA says that the Secretary of the Interior 

69 

may take land into trust ‘‘for the purpose of providing land to 

Indians.’’ End of statement of purpose. The regulations are equally 

in a sense open-ended because the Secretary has limited his discretion or one would say has expanded his discretion by saying that 

any of his regulations, any of his standards can be waived. He can 

waive or make exceptions to the regulations ‘‘where permitted by 

law and the Secretary finds that such waiver or exception is in the 

best interest of the Indian.’’ 

Now the Secretary of the Interior is a trustee for the tribes. Legally he has a responsibility. When land is taken into trust and 

when a tribe is recognized Federally, for the well being of that land 

and that tribal nation, he is a trustee. He is responsible only to 

their interests. But, as you have heard and you know from dealing 

with your own constituents, there are a lot of other interests involved in taking land into trust, loss of taxation authority, but even 

more important than the money, jurisdictional issues, criminal enforcement, environmental and other civil enforcement. 

So these decisions are exceedingly important and right now in 

both law and regulation I think need clarification. And they are 

also procedurally defective because, again, states, citizens have difficulty getting any notice, any information, any voice in the process. 

So I think it is both. 

Mr. HASTINGS. In following up on that, and I know I am asking 

you to answer in a broad way, but all the other attorneys general 

that were involved in the Carcieri case and probably those that 

have communicated with you since then, do you think they too 

share a similar concern? 

Mr. BLUMENTHAL. Very definitely, absolutely so, which is the 

reason why they feel so strongly about the Carcieri decision. Again, 

I would stress to you, sir, and to other members of the Committee, 

if you look at the decision, and I can give you the names of the 

states, but they are Republican and Democrat attorneys general 

with very differing views on almost any other issue. They are 

across the Nation geographically, ideologically, you know, dissimilar in many respects but united on this issue, and they strongly share these concerns. 

Mr. HASTINGS. Well, I said in my opening remarks that this is 

not a partisan issue, and that is evidenced by the fact that the 

sponsors of both the bills that we are having a hearing on today, 

one is a Republican and one is a Democrat. So I totally agree with 

you on that. My concern in asking this is sometimes an opportunity 

or a decision afford us an opportunity to look more deeply at some 

of the problems, and so that is the reason for my line of questioning. And with that, Mr. Chairman, thank you very much, and 

I will yield back. 

Mr. KILDEE. Before I yield to the gentleman from New Mexico, 

just one brief comment. You mentioned that there seems to be a 

conflict within the Secretary’s office of having a trust responsibility 

toward the Native Americans and also obligated to watch out for 

their well being. Well, that conflict exists throughout the Federal 

government, exists in this Congress. 

I am part of that trust responsibility. The trust responsibility is 

not just with the executive branch of government. The trust responsibility is with the entire U.S. Congress. That has been clear 

70 

through the years. It is a trust responsibility where we are obligated to look out for their well being, look out for them in that 

area. But also we do have an obligation to see to their well being 

as citizens of their nation, as citizens of their state and as citizens 

of the United States. 

You and I, Attorney General, we have two citizenships. I am an 

80-year citizen of the State of Michigan. I am an 80-year citizen of 

the United States. And that is it. But I bid the gentleman, Mr. 

Kanji, has three citizenships. He is not a tribal member, so we will 

say George Bennett, your former chief. George Bennett has three 

citizenships. He is a citizen of the State of Michigan. Has been not 

as long as I have been. He is a citizen of the United States, and 

members of that tribe have served dutifully in the armed forces, 

and he is a citizen of the tribe to which he belongs, the Grand Traverse Band of Ottawa and Chippewa ́. So the conflict you mention is going to stay there no matter what 

we do, no matter what legislation we write, how we restrict the 

Secretary. That conflict of being both trustee and having another 

role with the Indians is there. I appreciate the fact, though, that 

you raised it, and you raised it to one of our most savant members 

right here, Doc Hastings, who will mull that over very, very 

carefully. 

Mr. BLUMENTHAL. May I just respond very, very briefly? 

Mr. KILDEE. Absolutely, absolutely. 

Mr. BLUMENTHAL. I apologize. And I would just say, with all due 

respect, sir, I recognize and respect the feeling of obligation that 

you feel and I share for the oppression and the injustice that has 

been visited by our nation on Native Americans over our history 

and the ongoing obligation to help address the concerns that have 

been raised here and the well being that again we share a concern 

for addressing. 

But the legal obligation as apart from that moral obligation with 

the Secretary of the Interior is different. It is the reason why he 

has been held, not this Secretary but the Office of Secretary, in 

contempt of Court by a Federal judge, because he has a trusteeship 

obligation that is different from yours and mine. 

So I agree with you that we have that obligation, but his legal 

obligation is a bit different. And I didn’t mean to introduce that 

distracting element, but I think it raises the more important question of how do we strike a balance here and the larger, very profoundly important questions that we need to get right if we are 

going to change the system not through a quick fix that kind of 

puts a band aid on that broken knee but something that really addresses the broken knee. 

Mr. KILDEE. I would say that I think the Secretary, of course, is 

the most exposed one to whom we assign specific responsibilities, 

so it is natural the attorney go after him or her. 

The gentleman from New Mexico. 

Mr. HEINRICH. I thank the gentleman from Michigan. I wanted 

to ask Attorney General Blumenthal a related question and sort of 

follow up on some of the questions that my colleagues have already 

made. 

I wanted to ask you to clarify a statement that you make in your 

written testimony. You had said tribes recognized after 1934 are 

71 

unaffected by the failed Federal policies of the IRA that the IRA 

was intended to correct. No post-1934 tribes lost land because of 

the General Allotment Act of 1887. 

Now we have heard from representatives of several tribes that 

were either unrecognized in 1934, had an uncertain recognition status in that year. However, these tribes also recount very damaging 

actions by the Federal government that resulted in their tribes losing land prior to that year. I want to ask, is it really your assertion 

that these post-1934 tribes were unaffected by Federal Indian policy prior to that date? 

Mr. BLUMENTHAL. No, sir. I apologize if my statement gave you 

that impression. But the Carcieri court, the United States Supreme 

Court in the Carcieri decision, said essentially one of the reasons 

why we believe it applies only to the tribes recognized or under 

Federal jurisdiction now, meaning then in 1934, is that it very specifically was meant to remedy the problems created by that 1887 

act of Congress, the General Allotment Act. 

There is no question that policies prior to 1934 and after 1934 

have created injustices and even immoralities that need to be addressed now by our nation, and one of the ways to do it is to put 

land into trust, but it should be by a system that is fair, accountable and transparent. And I did not mean to suggest that there had 

been no problems in Federal policy since 1934 or pre-1934 that 

would affect tribes recognized since. 

Mr. HEINRICH. I want to thank the general. I want to just make 

the point that, as the witnesses here testified today, many tribes 

were unrecognized in 1934 because of harmful Federal policies. 

And from my point of view, it hardly seems fair to declare that 

these tribes are outside the boundaries of the IRA simply because 

the Federal government had been more successful in its efforts to 

dilute their land base than it was with other tribes. And with that, 

I would yield back to the gentleman from Michigan. 

Mr. KILDEE. Before I yield to the Ranking Member, my father 

was born in 1883, and he can recall vividly a tribe in Michigan 

whose reservation was burned to the ground by the sheriff. The 

Governor had put that land on the tax rolls illegally and without 

telling the tribe and exactly one year and one day later, when the 

taxes were not paid, came in to push the Indians off their own land 

and to make sure they did not return burned the town down to the 

ground. This was my dad’s, he was a 17-year old, remembered that 

all his life and told us kids how unfair the Indians were treated. 

So they in one sense lost their land base in fact, but I don’t think 

so in law. They lost their land base. They are struggling now to get 

their land base back, and they are before the BIA right now and 

they are looking at all the records. The Catholic Church probably 

kept the best records of people who stayed there even though their 

village had been burned down. 

So a lot of times the land was lost not by law but by fact, and 

they are struggling to get that land back, and that is why we generally leave those things with the BIA to make that determination. 

But I will yield to the gentleman from Washington, and thank 

you for your patience. 

Mr. HASTINGS. Well, thank you, Mr. Chairman. I have no further 

questions, but I just want to say this is an immensely important 

72 

decision, and I think that it is the responsibility obviously of this 

Committee and this Congress to try to seek some sort of resolution 

to it. 

That being said, as I mentioned in my opening statement, there 

were a number of people obviously on both sides of the issue, and 

the Supreme Court has ruled. If we are indeed a country of laws, 

then we have to make sure that we get it right. But I, again, having represented a district that has two tribes, well, one by the way 

that is not recognized at all, I think we need a solution to this. 

So I look forward to working with you on this issue, and I want 

to thank all of the witnesses, especially those tribes from my State 

of Washington, although you are on the wet side of the state and 

I am from the dry side of the state. We won’t go into all of that, 

but thank you for making the trip out here. Thank you very much. 

Mr. BLUMENTHAL. And if I may just comment, Mr. Chairman, on 

behalf of the Attorneys General, we are very eager and willing and 

ready to continue participating in this process, working toward a 

common solution. We are not saying by any means there is no need 

for a solution. Let us just make sure it is the right solution that 

respects the needs of citizens and communities and towns and cities and states as well as a fair process and also that recognizes the 

past injustices and the need to deal fairly and effectively with the 

problems of Native American sovereign tribes that are recognized 

by the Federal government. 

And I emphasize sovereign because that is a principle that we respect, and it is one of the reasons why we have to get it right when 

we make these changes in law. 

Mr. KILDEE. I appreciate that, and as I mentioned before, I think 

the Ranking Member requested a longer answer, a more fulsome 

answer. We will leave the record open for another say 14 days, and 

we will allow ourselves 10 days to submit questions to you. 

Mr. BLUMENTHAL. Well, you know, Mr. Chairman, lawyers are 

always happy to give longer answers. 

Mr. KILDEE. I am a Latin teacher, so I don’t know. 

Let me ask Mr. Kanji a question. Do you believe that the legislation before us will have both a retroactive and prospective effect? 

Mr. KANJI. I do, Chairman Kildee, and I think that is critically 

important. I think the bills have been drafted both to provide the 

Secretary with the authority going forward to accord the protections of the IRA to all Federally recognized tribes but also to protect past Secretarial decisions against litigation. 

And I think there seems to be a common feeling on the part of 

everyone in this room that the avoidance of litigation is critically 

important to all the sovereign governments affected here and it 

does no one any good. It doesn’t do the tribes any good, the state, 

the local units of government to spend years embroiled in the time 

and the expense and uncertainty, most importantly, the uncertainty that is associated with litigation. 

I am a litigator. I earn my living from litigating cases on behalf 

of tribes, but the last thing that the tribes in this country should 

have to do is to pay lawyers like me, firms like mine, in order to 

litigate the basic fundamental question as to whether all tribes are 

entitled to the foundational protections of the Indian Reorganization Act. 

73 

The Attorney General well stated the principle that, you know, 

you shouldn’t act in a way that does more harm than good, but it 

does no harm for this Congress to in a very straightforward manner that is reflected in the pending bills just reaffirm the 

foundational principle that all recognized tribes stand on an equal 

footing in this country and are entitled to the same basic protections of the laws other tribes are. 

As the Attorney General well knows and this Committee well 

knows, the Supreme Court, as in the context of the sovereign 

states, announced as a fundamental principle over the years that 

the equal footing doctrine ensures that all the sovereign states 

stand on an equal footing regardless of the date of their admission 

into the Union. 

And essentially the bills, the bill that you have sponsored and 

the bill that Representative Cole has sponsored, essentially embody 

that same equal footing principle. And, yes, in response to your 

question, I believe they do so both retroactively and prospectively. 

Mr. KILDEE. I will say that the Attorney General and Secretary 

Salazar himself have gone over a letter to me supporting exactly 

this legislation—word for word—and feel that it is properly drafted. 

You are a litigator, and I want to ask you, do you want a long letter or a short letter from this Committee then since the Attorney 

General has indicated. 

This has been a very good hearing. This is a subject that is very 

dear to this Committee’s heart. We are in effect the ‘‘Indian Committee’’ in the Congress. We don’t have an Indian committee as 

such, nor even an Indian subcommittee, but the full Committee on 

Natural Resources is the Indian Committee. So we have part of 

that trust responsibility too. We want to be fair to everyone. We 

legislate for the citizens of the tribes, legislate for all citizens of the 

United States, and we want to be fair and abide by the Constitution, abide by the treaties. 

The Constitution also tells us this treaty or this Constitution and 

all treaties entered therein shall be the supreme law of the land. 

John Marshall indicated that includes Indian treaties. The Indian 

treaties are the supreme law of the land. Andrew Jackson did not 

quite believe that and pushed people to Oklahoma, many of them. 

But I do believe it, and as long as I am Chairman, I am going to 

make sure that we recognize that the treaties are the supreme law 

of the land. And those post actions recognized in sovereignty have 

also always been upheld by the Congress and by the courts. 

So I appreciate all of you. All of you have been very good. All of 

you have been straightforward with the Committee, and all of you 

have spoken from your heads and your hearts, and both are important. We want justice. All of us I think are seekers after justice, 

and we hope this Committee can move us toward that justice. 

And unless you have any further statements, we will stand 

adjourned. And there is another hearing in this room after we 

adjourn, so we will, as I say, send in questions in writing. We will 

stand adjourned. 

[Whereupon, at 1:15 p.m., the Committee was adjourned.] 

Æ