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[House Report 115-928]
[From the U.S. Government Publishing Office]

115th Congress    }                                     {      Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                     {     115-928

======================================================================

 
     LITTLE SHELL TRIBE OF CHIPPEWA INDIANS RESTORATION ACT OF 2018

                                _______
                                

 September 10, 2018.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Bishop of Utah, from the Committee on Natural Resources, submitted 
                             the following

                              R E P O R T

                        [To accompany H.R. 3764]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 3764) to extend the Federal recognition to the 
Little Shell Tribe of Chippewa Indians of Montana, and for 
other purposes, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Little Shell Tribe of Chippewa Indians 
Restoration Act of 2018''.

SEC. 2. DEFINITIONS.

  In this Act:
          (1) Member.--The term ``member'' means an individual who is 
        enrolled in the Tribe pursuant to section 6.
          (2) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.
          (3) Tribe.--The term ``Tribe'' means the Little Shell Tribe 
        of Chippewa Indians of Montana.

SEC. 3. FEDERAL RECOGNITION.

  (a) In General.--Federal recognition is extended to the Tribe.
  (b) Effect of Federal Laws.--Except as otherwise provided in this 
Act, all Federal laws (including regulations) of general application to 
Indians and Indian tribes, including the Act of June 18, 1934 (25 
U.S.C. 5101 et seq.) (commonly known as the ``Indian Reorganization 
Act''), shall apply to the Tribe and members.

SEC. 4. FEDERAL SERVICES AND BENEFITS.

  (a) In General.--Beginning on the date of enactment of this Act, the 
Tribe and each member shall be eligible for all services and benefits 
provided by the United States to Indians and federally recognized 
Indian tribes, without regard to--
          (1) the existence of a reservation for the Tribe; or
          (2) the location of the residence of any member on or near an 
        Indian reservation.
  (b) Service Area.--For purposes of the delivery of services and 
benefits to members, the service area of the Tribe shall be considered 
to be the area comprised of Blaine, Cascade, Glacier, and Hill Counties 
in the State of Montana.

SEC. 5. REAFFIRMATION OF RIGHTS.

  (a) In General.--Nothing in this Act diminishes any right or 
privilege of the Tribe or any member that existed before the date of 
enactment of this Act.
  (b) Claims of Tribe.--Except as otherwise provided in this Act, 
nothing in this Act alters or affects any legal or equitable claim of 
the Tribe to enforce any right or privilege reserved by, or granted to, 
the Tribe that was wrongfully denied to, or taken from, the Tribe 
before the date of enactment of this Act.

SEC. 6. MEMBERSHIP ROLL.

  (a) In General.--As a condition of receiving recognition, services, 
and benefits pursuant to this Act, the Tribe shall submit to the 
Secretary, by not later than 18 months after the date of enactment of 
this Act, a membership roll consisting of the name of each individual 
enrolled as a member of the Tribe.
  (b) Determination of Membership.--The qualifications for inclusion on 
the membership roll of the Tribe shall be determined in accordance with 
sections 1 through 3 of article 5 of the constitution of the Tribe 
dated September 10, 1977 (including amendments to the constitution).
  (c) Maintenance of Roll.--The Tribe shall maintain the membership 
roll under this section.

SEC. 7. ACQUISITION OF LAND.

  (a) Homeland.--The Secretary shall acquire, for the benefit of the 
Tribe, trust title to 200 acres of land within the service area of the 
Tribe to be used for a tribal land base.
  (b) Additional Land.--The Secretary may acquire additional land for 
the benefit of the Tribe pursuant to section 5 of the Act of June 18, 
1934 (25 U.S.C. 5108) (commonly known as the ``Indian Reorganization 
Act'').

                          PURPOSE OF THE BILL

    The purpose of H.R. 3764 is to extend federal recognition 
to the Little Shell Tribe of Chippewa Indians of Montana.

                  BACKGROUND AND NEED FOR LEGISLATION

    Under Article I, Section 3, Clause 3 of the Constitution, 
Congress has what the Supreme Court characterizes as plenary 
and exclusive authority over federal Indian affairs. 
Nonetheless, the Department of the Interior, without 
authorization from Congress, implemented its own rules for the 
recognition of tribes not previously recognized by Congress. 
These rules are codified in 25 C.F.R. Part 83 and administered 
by the Office of Federal Acknowledgment within the Department 
of the Interior.
    To reclaim Congress's tribal recognition power from the 
Executive Branch, Chairman Rob Bishop introduced H.R. 3744, the 
Tribal Recognition Act. This legislation would establish a 
statutory framework for the recognition of tribes in accordance 
with Congress's plenary power over Indian affairs. It was 
ordered favorably reported by the Natural Resources Committee 
on June 13, 2018. Under the process authorized by H.R. 3744, 
groups seeking federal recognition as Indian tribes would 
submit their petitions and all supporting documentary evidence 
to the Department of the Interior. The Department would then 
process and review the petitions under specific standards and 
criteria largely the same as those which the Office of 
Acknowledgment used before the standards and criteria were 
relaxed by the Obama Administration in 2015. The Department 
would submit its completed review to the Committees on Natural 
Resources of the House and Indian Affairs of the Senate, with 
Congress making any final decision.
    Consistent with Congress's prerogative to consider whether 
to recognize new tribes, H.R. 3764 would extend recognition to 
the Little Shell Tribe of Montana. According to the Little 
Shell, the Tribe originally petitioned the federal government 
for reorganization in the 1930s and 1940s under the Act of June 
18, 1934, commonly known as the Indian Reorganization Act.\1\ 
At the time, the federal government concluded that Little Shell 
tribal members were eligible for and should be provided with 
trust land, thereby making the Tribe eligible for 
reorganization under the Indian Reorganization Act. Due to a 
lack of federal appropriations during the Depression, the 
Bureau lacked adequate financial resources to purchase land for 
the Tribe, and the Little Shell people were thereby denied the 
opportunity to reorganize.\2\
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    \1\25 U.S.C. 5101 et seq.
    \2\U.S. Department of the Interior letter to U.S. Senator Burton K. 
Wheeler (D-MT). May 29, 1940.
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    The Tribe, together with the Turtle Mountain Band of 
Chippewa of North Dakota, and the Chippewa-Cree Tribe of the 
Rocky Boy's Reservation of Montana, filed claims under the 
Indian Claims Commission Act of 1946\3\ for additional 
compensation for lands ceded to the United States by an 1863 
treaty and the 1892 McCumber Agreement.\4\ These tribes 
received Indian Claims Commission (ICC) awards, which were 
distributed under 1971 and 1982 Acts of Congress.\5\ However, 
it should be noted that neither the ICC Act nor the Indian 
Reorganization Act provides a basis for the recognition of 
tribes. The ICC Act generally required the Commission to hear 
certain categories of claims from tribes and other identifiable 
groups of American Indians.\6\
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    \3\60 Stat. 1050.
    \4\TURTLE MOUNTAIN BAND OF CHIPPEWA INDIANS et al. v. The UNITED 
STATES. United States Court of Claims. January 23, 1974. 490 F.2d 
935,938.
    \5\See Public Law 92-59, 85 Stat. 158 (1971) and Public Law 97-403, 
96 Stat. 2022 (1982).
    \6\Act of Aug. 13, 1946, ch. 959, sec. 2, 60 Stat. 1050.
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    The Little Shell group has long pursued federal recognition 
through the Department of the Interior's administrative process 
beginning with the submission of an initial letter of intent to 
petition in 1978, the same year the Department established its 
administrative recognition rules. In 2009, the Department 
declined to recognize the Little Shell as a tribe.\7\ The 
Department explained that the petitioner failed to satisfy 
three of seven mandatory criteria necessary to be recognized 
under the Part 83 rules in effect at the time. The three 
criteria the group failed to satisfy are: has been identified 
as an Indian entity on a substantially continuous basis at 
least since 1900; comprised a distinct community since 
historical times and maintain significant social relationships 
and interaction as part of a distinct community; and has 
maintained political influence over a community of its members 
or over communities that combined into the petitioner.\8\
---------------------------------------------------------------------------
    \7\https://www.bia.gov/sites/bia.gov/files/assets/as-ia/ofa/
petition/031_litshl_MT/031_fd_fr.pdf
    \8\https://www.bia.gov/sites/bia.gov/files/assets/as-ia/ofa/
petition/031_litshl_MT/031_fd_pr.pdf
---------------------------------------------------------------------------
    The Clinton Administration's handling of the Little Shell 
recognition petition and that of five other groups were the 
subject of a formal investigation by the Department's Inspector 
General. The Inspector General issued a report revealing 
misconduct by several political appointees, who reversed the 
findings of career experts that these groups (including Little 
Shell) were not tribes under the Department's regulations.\9\ 
The Secretary of the Interior appointed by President George W. 
Bush reconsidered the Little Shell petition and in 2009, as has 
been noted, the Department issued its final determination 
reflecting the career staff's verdict that the group failed to 
meet necessary criteria to be accorded federal recognition as a 
tribe.
---------------------------------------------------------------------------
    \9\U.S. Department of the Interior Inspector General (2002), 
``Allegations Involving Irregularities in the Tribal Recognition 
Process and Concerns Related to Indian Gaming,'' Investigative Report 
No. 01-I-00329. https://www.gpo.gov/fdsys/pkg/GPO-DOI-IGREPORTS-01-i-
00329/pdf/GPO-DOI-IGREPORTS-01-i-00329.pdf
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    The Little Shell subsequently appealed the Department's 
final determination against recognizing the Tribe to the 
Interior Board of Indian Appeals (IBIA). In 2013, the IBIA 
affirmed the Department's final determination, but referred 
certain issues raised by the Tribe to the Secretary for further 
consideration.\10\
---------------------------------------------------------------------------
    \10\https://www.bia.gov/sites/bia.gov/files/assets/as-ia/ofa/
petition/031_litshl_MT/031_57ibia101.pdf
---------------------------------------------------------------------------
    In 2015, the Department made significant revisions to its 
recognition regulations, allowing the Tribe to re-petition for 
recognition under the revised standards and criteria.\11\ 
According to the BIA, the Tribe has not yet supplemented its 
documented petition under the 2015 regulations.\12\
---------------------------------------------------------------------------
    \11\https://www.bia.gov/sites/bia.gov/files/assets/as-ia/ofa/
petition/031_litshl_MT/031_letter_20160630.PDF
    \12\https://www.bia.gov/as-ia/ofa/031-ltlshl-mt
---------------------------------------------------------------------------
    At the same time the Little Shell Tribe continues to pursue 
recognition from the BIA, it is seeking legislative recognition 
from Congress.
    It is the Committee's view that Members of the House should 
have a reasonable basis for rendering a decision on extending 
federal recognition to the Little Shell Tribe, consistent with 
the principles and framework set forth in H.R. 3744, Chairman 
Bishop's tribal recognition reform legislation. The Little 
Shell Tribe's petition for recognition under the pre-2015 
recognition standards has undergone a substantially complete 
review by the Department. Details of the Little Shell's 
documented petition, with findings and conclusions made by 
Department staff, are publicly available for Members of 
Congress to review for them to make a decision, informed by 
expert analysis of documented evidence, on whether federal 
recognition of the Little Shell Tribe is warranted.\13\ 
Recognition is a political question, and thus Members are not 
formally bound by opinion of the Department, though Members are 
advised to weigh any recommendation of the Department 
carefully.
---------------------------------------------------------------------------
    \13\https://www.bia.gov/sites/bia.gov/files/assets/as-ia/ofa/
petition/031_litshl_MT/031_fd.pdf
---------------------------------------------------------------------------

Gaming

    H.R. 3764, as ordered reported, contains no provision 
relating to gaming. In general, Section 20 of the Indian Gaming 
Regulatory Act of 1988 (IGRA)\14\ prohibits gaming on lands 
acquired in trust for a tribe after 1988. Section 20 of IGRA, 
however, contains several exceptions to this prohibition. One 
of these exceptions is the so-called ``two-part determination'' 
requiring the concurrence of the governor of the State in which 
the tribe would run a casino. This two-part determination 
exception would be available for the Little Shell Tribe to 
operate a casino on lands placed in trust for its benefit. It 
is unclear if another exception in Section 20 of IGRA, such as 
the land claim exception\15\ might additionally apply to the 
Tribe and its lands.
---------------------------------------------------------------------------
    \14\25. U.S.C. 2719.
    \15\25 U.S.C. 2719(b)(1)(B)(i).
---------------------------------------------------------------------------

Previous Congressional action

    In the 114th Congress, the Committee held a hearing on a 
substantially similar bill, H.R. 286, on September 29, 
2015.\16\ On September 8, 2016, the Committee included the text 
of H.R. 286 in the amendment in the nature of a substitute to 
H.R. 3764, the Tribal Recognition Act of 2016. H.R. 3764, as 
amended, was favorably reported by a roll call vote of 23 yeas 
and 13 nays.\17\
---------------------------------------------------------------------------
    \16\http://www.lis.gov/cgi-lis/bdquery/D?d114:1:./temp/
bd9BgU:@@@X:dbs=n://www.lis.gov/billsumm/billsumm.php?id=2
    \17\H. Report 114-847.
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      SECTION-BY-SECTION ANALYSIS OF THE BILL AS ORDERED REPORTED

Section 1. Short title

    This Act may be cited as the Little Shell Tribe of Chippewa 
Indians Restoration Act of 2018.

Section 2. Definitions

    This section defines terms used in the Act.

Section 3. Federal recognition

    Federal recognition is extended to the Tribe and all 
federal laws (including regulations) of general application to 
Indians and Indian tribes, including the Indian Reorganization 
Act, shall apply to the Tribe and members.

Section 4. Federal services and benefits

    Beginning on the date of enactment of this Act, full 
eligibility for all services and benefits provided by the 
federal government shall be extended to the Tribe and members, 
without regard to (1) the existence of a reservation for the 
Tribe; or (2) the location of the residence of a member on or 
near an Indian reservation. The service area of the Tribe shall 
be the area comprised of Blaine, Cascade, Glacier, and Hill 
Countries in the State of Montana.

Section 5. Reaffirmation of rights

    This Act shall not diminish any right or privilege of the 
Tribe that existed before the date of enactment.

Section 6. Membership roll

    The Tribe shall submit a membership roll to the Secretary 
within 18 months of enactment. Determination of the roll shall 
be in accordance with the Tribal constitution dated September 
10, 1977 (including amendments).

Section 7. Acquisition of land

    The Secretary shall acquire trust title to 200 acres of 
land within the service area of the Tribe to be used for tribal 
land base. The Secretary may acquire additional land for the 
benefit of the Tribe pursuant to section 5 of the Indian 
Reorganization Act.

                            COMMITTEE ACTION

    H.R. 3764 was introduced on September 13, 2017, by 
Congressman Greg Gianforte (R-MT). The bill was referred to the 
Committee on Natural Resources and within the Committee to the 
Subcommittee on Indian, Insular, and Alaska Native Affairs. On 
July 11, 2018, the Committee on Natural Resources met to 
consider the bill. The Subcommittee was discharged by unanimous 
consent. Congressman Rob Bishop (R-UT) offered an amendment 
designated #1; it was adopted by unanimous consent. No further 
amendments were offered, and the bill, as amended, was ordered 
favorably reported to the House of Representatives by unanimous 
consent.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

      COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 3, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3764, the Little 
Shell Tribe of Chippewa Indians Restoration Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Robert 
Reese (for Bureau of Indian Affairs programs), and Robert 
Stewart (for Indian Health Service programs).
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 3764--Little Shell Tribe of Chippewa Indians Restoration Act of 
        2018

    Summary: H.R. 3764 would provide federal recognition to the 
Little Shell Tribe of Chippewa Indians of Montana. Federal 
recognition would make the tribe eligible to receive benefits 
from various federal programs.
    CBO estimates that implementing this legislation would cost 
$37 million over the 2019-2023 period, assuming appropriation 
of the necessary amounts. Enacting H.R. 3764 would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    CBO estimates that enacting H.R. 3764 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 3764 would impose an intergovernmental mandate as 
defined in the Unfunded Mandates Reform Act (UMRA) by exempting 
some lands from taxation by state and local governments, but 
CBO estimates the cost of the mandate would be small and well 
below the threshold established in that act ($80 million in 
2018, adjusted annually for inflation).
    H.R. 3764 contains no private-sector mandates as defined in 
UMRA.
    Estimated cost to the Federal Government: The estimated 
budgetary effect of H.R. 3764 is shown in the following table. 
The costs of the legislation fall within budget functions 450 
(community and regional development) and 550 (health).

----------------------------------------------------------------------------------------------------------------
                                                          By fiscal year, in millions of dollars--
                                          ----------------------------------------------------------------------
                                             2018      2019      2020      2021      2022      2023    2019-2023
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Department of the interior:
    Estimated Authorization Level........         0         3         3         3         4         4         17
    Estimated Outlays....................         0         2         3         3         4         4         16
Indian Health Service:
    Estimated Authorization Level........         0         4         4         4         4         5         22
    Estimated Outlays....................         0         4         4         4         4         5         21
    Total Changes:
        Estimated Authorization Level....         0         7         7         8         8         8         39
        Estimated Outlays................         0         6         7         7         8         9         37
----------------------------------------------------------------------------------------------------------------
Components may not sum to totals because of rounding.

    Basis of estimate: For this estimate, CBO assumes that H.R. 
3764 will be enacted near the end of 2018 and that the 
necessary amounts will be appropriated for each year beginning 
in 2019.
    Providing federal recognition to the Little Shell Tribe of 
Chippewa Indians of Montana would allow the tribe and about 
2,600 tribal members to receive benefits under various programs 
administered by the Department of the Interior (DOI) and the 
Indian Health Service (IHS). Based on the average per capita 
expenditures by those agencies for other Indian tribes, CBO 
estimates that implementing H.R. 3764 would cost $37 million 
over the 2019-2023 period.

Department of the Interior

    DOI, primarily through the Bureau of Indian Affairs, 
provides funding to federally recognized tribes for various 
purposes, including child welfare services, adult care, 
community development, and general assistance. Based on current 
per capita expenditures of around $1,200 for other federally 
recognized tribes in the central states and accounting for 
anticipated inflation, CBO estimates that providing those 
services would cost $16 million over the 2019-2023 period.

Indian Health Service

    H.R. 3764 also would make members of the tribe eligible for 
health benefits. Using information from the IHS, CBO estimates 
that about 55 percent of the tribe's members--or about 1,400 
people--would receive benefits each year. CBO expects that the 
per capita cost would be similar to the costs for current IHS 
beneficiaries--about $2,680 in 2017. Accounting for anticipated 
inflation, CBO estimates, providing those benefits would cost 
$21 million over the 2018-2022 period.

Other Federal agencies

    In addition to DOI and IHS funding, certain Indian tribes 
also receive support from other federal programs within the 
Departments of Agriculture, Education, Housing and Urban 
Development, and Labor. Because the tribe is currently 
recognized by the state of Montana, it already receives funding 
from those departments. Thus, CBO estimates that enacting H.R. 
3764 would not increase costs for that support.
    Pay-As-You-Go considerations: None.
    Increase in long-term direct spending and deficits: CBO 
estimates that enacting H.R. 3764 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2029.
    Mandates: H.R. 3764 contains an intergovernmental mandate 
as defined in UMRA because it would authorize the Secretary of 
Interior to acquire and take into trust 200 acres of land for 
the Little Shell Tribe. Because that land would be exempt from 
state and local taxes, the provision would impose an 
intergovernmental mandate. Given the small amount of land, CBO 
estimates that the forgone tax revenue to state and local 
governments would be small and well below the threshold 
established for intergovernmental mandates ($80 million in 
2018, adjusted annually for inflation).
    H.R. 3764 contains no private-sector mandates as defined in 
UMRA.
    Previous CBO estimate: On February 21, 2017, CBO 
transmitted an estimate for S. 39, the Little Shell Tribe of 
Chippewa Indians Restoration Act of 2017, as ordered reported 
by the Senate Committee on Indian Affairs on February 8, 2017. 
The two bills are similar and the differences in CBO's 
estimates of their costs stem from the different periods for 
which the costs were estimated.
    Estimate prepared by: Federal costs: Robert Reese (Bureau 
of Indian Affairs); Robert Stewart (Indian Health Service); 
Mandates: Rachel Austin.
    Estimate reviewed by: Kim P. Cawley, Chief, Natural and 
Physical Resources Cost Estimates Unit; Susan Willie, Chief, 
Mandates Unit; H. Samuel Papenfuss, Deputy Assistant Director 
for Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to extend federal recognition to the 
Little Shell Tribe of Chippewa Indians of Montana.

                           EARMARK STATEMENT

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                       COMPLIANCE WITH H. RES. 5

    Directed Rule Making. This bill does not contain any 
directed rule makings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes to existing 
law.

                                  [all]
```