Text: S.Hrg. 116-77 — S. 279, S. 790, AND S. 832
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[Senate Hearing 116-77]
[From the U.S. Government Publishing Office]
S. Hrg. 116-77
S. 279, S. 790, AND S. 832
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
MAY 1, 2019
Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
38-002 PDF WASHINGTON : 2019
COMMITTEE ON INDIAN AFFAIRS
JOHN HOEVEN, North Dakota, Chairman
TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska JON TESTER, Montana,
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana CATHERINE CORTEZ MASTO, Nevada
MARTHA McSALLY, Arizona TINA SMITH, Minnesota
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Jennifer Romero, Minority Staff Director and Chief Counsel
C O N T E N T S
Hearing held on May 1, 2019...................................... 1
Statement of Senator Cortez Masto................................ 35
Statement of Senator Graham...................................... 3
Statement of Senator Hoeven...................................... 1
Statement of Senator Merkley..................................... 5
Statement of Senator Udall....................................... 3
Fire Thunder, Cecelia, President, Oglala Lakota Nation Education
Prepared statement........................................... 27
Harris, Hon. William, Chief, Catawba Indian Nation............... 10
Prepared statement........................................... 12
Suppah, Hon. Ron, Council Member, Confederated Tribes of Warm
Prepared statement........................................... 23
Tahsuda, III, John, Principal Deputy Assistant Secretary, Indian
Affairs, U.S. Department of the Interior....................... 6
Prepared statement........................................... 8
Response to written questions submitted by Hon. Catherine Cortez
Masto to John Tahsuda III...................................... 54
Response to written questions submitted by Hon. Tom Udall to:
Hon. William Harris.......................................... 54
John Tahsuda III............................................. 55
Letters submitted for the record from:
Keith Miller, City Councilmember At-large City of Kings
William C. Miller, Jr., President/CEO, American Gaming
Rosenblum, Ellen F., Attorney General, Oregon Department of
Justice, prepared statement.................................... 45
S. 279, S. 790, AND S. 832
WEDNESDAY, MAY 1, 2019
Committee on Indian Affairs,
The Committee met, pursuant to notice, at 2:30 p.m. in room
628, Dirksen Senate Office Building, Hon. John Hoeven,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. We will call this hearing to order. Good
afternoon. Thanks to all of our witnesses for being here.
Today the Committee will receive testimony from our
witnesses on the following bills: S. 279, the Tribal School
Federal Insurance Parity Act; S. 790, a Bill to Clarify Certain
Provisions of Public Law 103-116, the Catawba Indian Tribe of
South Carolina Land Claims Settlement Act of 1993 and for other
purposes; and S. 832, a Bill to Nullify the Supplemental Treaty
Between the United States of America and the Confederated
Tribes and Bands of Indians of Indians of Middle Oregon,
Concluded on November 15th, 1865.
On January 30, 2019, Senators Thune and Rounds introduced
S. 279, the Tribal School Federal Insurance Parity Act.
Senators Udall, Heinrich, Barrasso, and Tester are co-sponsors.
S. 279 amends Section 498 of the Indian Health Care
Improvement Act and allows for tribal grant schools operating
grants under the Tribally Controlled Schools Act of 1988 to be
eligible for participation in a Federal employee health
benefits and Federal employees group life insurance programs.
According to the Office of Personnel Management, consultation
with the Departments of Interior and Health and Human Services,
tribal grant schools are ineligible to receive coverage from
the Federal employee health benefits and the Federal employee
group life insurance programs without a change to the Indian
Health Care Improvement Act that explicitly includes schools
operating grants under the Tribally Controlled Schools Act of
However, BIE-operated and BIE contract schools are eligible
to receive coverage from the Federal Employee Health Benefits
and the Federal Employees Group Life Insurance programs, thus
creating a disparity. Currently, there are 128 tribal grant
schools in 23 States across the Country. Staff from these
schools cannot receive benefits from the Federal employee
health benefits and the Federal employee group life insurance
By not being able to access these programs, tribal grant
schools are using education dollars to provide health insurance
coverage to its employees. Allowing participation in these
Federal insurance programs will allow tribal grant schools to
use education funds for recruiting and retaining educators and
providing supplies and other needed resources.
On March 13th, 2019, Senator Graham introduced S. 790.
Senators Burr and Tillis have joined as co-sponsors. Twenty-six
years ago, Congress passed the Catawba Indian Tribe of South
Carolina Land Claims Settlement Act of 1993. Under this law,
the Catawba Tribe, in exchange for reservation lands, Federal
and State money payments, and other Federal services, agreed to
drop a land claims suit it had filed in Federal court. This
settlement act provided that the tribe would be subject to the
laws of the State of South Carolina in regard to conducting
gaming within the State.
Through a series of court challenges, the State of South
Carolina successfully asserted its rights under the settlement
act to prohibit the tribe from conducting any gaming within its
borders. S. 790 will provide authority for the Secretary of the
Interior to take land into trust on behalf of the tribe for the
purpose of gaming in the bordering State of North Carolina. The
bill explicitly details the parcel of land where gaming will
take place and requires that the tribe conduct their gaming
activities within the Federal regulatory framework of the
Indian Gaming Regulatory Act.
Finally, the Committee will hear testimony on S. 832, a
Bill to Nullify the Supplemental Treaty Between the United
States of America and the Confederated Tribes and Bands of
Indians of Middle Oregon, Concluded on November 15th, 1865. On
March 14th, 2019, Senator Merkley introduced S. 832. Senator
Wyden joined as a co-sponsor.
In 1855, the Warm Springs Tribe entered into a treaty with
the Federal Government that ceded the tribe's territorial
interests in the State of Oregon in exchange for consideration.
It included a reservation and monetary compensation. In 1865,
the Superintendent of Indian Affairs for Oregon drafted a
supplemental treaty which provides the tribes rights under the
original 1855 treaty. The supplemental treaty prohibited the
rights of tribal members to hunt and fish on their own lands,
as well as required tribal members to seek permission from the
superintendent when they chose to leave the reservation.
S. 832 will nullify this supplemental 1865 treaty and leave
the 1855 as the only recognized and legal treaty between the
United States and the Confederated Tribes and Bands of Indians
of Middle Oregon.
With that, I will turn to Vice Chairman Udall for his
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you very much, Chairman Hoeven, for
calling today's legislative hearing.
The bills before us work to uphold the Federal Government's
trust and treaty responsibilities by providing tribal
communities with access to tools and resources they need to
thrive. S. 279, the Tribal School Federal Insurance Parity Act,
that I co-sponsored with Senator Thune, would ensure that all
three types of Bureau of Indian Education schools have equal
access to much-needed Federal tools and resources to recruit
and retain teachers.
Employees working at federally-operated BIE schools and BIE
schools operated by tribes through 638 contracts are already
eligible to pay into and use the Federal Employee Health
Benefits and Federal Employees Group Life Insurance programs.
But under current law, BIA 297 grant schools aren't eligible.
Access to these Federal programs allows direct service and 638
BIE schools to offer teachers low-cost, high value benefit
packages, a hiring incentive that can be a major factor in
convincing educators to choose BIE over other school systems.
This will make sure 297 grant schools have those same
incentives in their recruitment tool kits. S. 297 would also
free up funding at these grant schools for other critical
resource needs, like updated text books, healthier food
services and gifted and talented programs. All add value,
improve Native student outcomes and further increase the appeal
of working at BIE schools for new educators looking to start
careers and families. Recruitment and retention of qualified
teachers in schools serving Native communities is one of my top
Last month, Senator Tester and I reintroduced the Native
Educator Support and Training Act, or the NEST Act. This bill
would establish scholarships, loan forgiveness plans and
professional development programs for educators who commit to
teaching in Native communities. Both S. 279 and the NEST Act
represent important steps to improve Native educational
outcomes and address the teacher shortages impacting Native
communities across Indian Country. I hope we can move them
swiftly to markup.
Turning briefly to Senator Graham's bill, S. 790, and
Senator Merkley's bill, S. 832, both bills address issues
specific to their tribal constituents. Our hearing today will
allow the Committee to gather feedback on these bills. I look
forward to learning more about the issues they propose to
Thank you, again, Mr. Chairman, for calling this hearing.
The Chairman. Senator Graham, rumor has it you have
something else going on today. So I'm going to turn to you for
STATEMENT OF HON. LINDSEY GRAHAM,
U.S. SENATOR FROM SOUTH CAROLINA
Senator Graham. Well, compared to where I've been, this is
a real pleasure. We had a little contentious hearing in
Judiciary. I'm honored to be here and thank you both for
allowing me to make a brief introduction.
I want to introduce Chief Bill Harris from the Catawba
Indian Nation in Rock Hill, along the South Carolina and North
Carolina border. He was elected chief in 2011. He was involved
in tribal governance long before that, fighting for the
individual rights of the Catawba people in tribal government
for years. He serves on boards and commissions including the
Indian Health Services Direct Service Tribes Advisory
Committee, the United South and Eastern Tribes Board of
Directors, and the South Carolina Native American Advisory
He comes from a long tradition of service and is deeply
rooted in the Catawba culture. His grandfather was a Catawba
chief and his grandmother was a legendary Catawba potter who
taught Chief Harris the traditional Catawba art form which he
continues to practice to this day.
S. 790 is a bill I've introduced with Senators Tillis and
Burr from North Carolina. As I said, the Catawba Nation covers
both South Carolina and North Carolina. In 1993, Congress
passed the Catawba Indian Land Claims Settlement Act, to settle
the Catawba land claims for the restoration of their
recognition as a tribe, working out terms of the settlement
with South Carolina and different terms with North Carolina.
It authorized, on a mandatory basis, the establishment of a
reservation of up to 4,200 acres. Under that legislation, the
Federal Government's trust relationship with the tribe was
restored, but the effect of that legislation was to leave the
tribe impoverished, without claim to their Native land and
without a means to financially support themselves.
More than 25 years later, the tribe's reservation is only
1,000 acres, the tribe is locked in poverty and the tribe's
understanding that it had negotiated the right to acquire land
within its congressionally-established service area in North
Carolina has been disputed, largely due to poor drafting of the
act. I am from South Carolina. Nobody, nobody, objects to the
Catawbas having land in North Carolina and establishing a
gaming operation, as long as it consistent with the law.
All the key negotiators, including members of Congress, the
Interior Secretary, North Carolina tribal officials involved in
negotiating the Catawba Settlement Act, understand that the
tribe could make mandatory acquisitions in its North Carolina
service area, and have signed written statements to that
effect. That is what was intended.
However, the language of the Act has been deemed ambiguous
on the Tribe's right to make limited land acquisitions in that
State. Senators Bird, Tillis and myself have introduced
legislation to right that wrong. The bill specifically gives
the Secretary this authority to make that decision. In a sense,
this legislation is a technical correction to allow the tribe
to do what Congress envisioned, nothing more, nothing less.
This legislation alone will not correct the long history of the
Catawba Indians being taken for granted; however, it will be a
giant step forward to empower them.
Our government has promised a bright future for the Catawba
people, but they have been deprived of that future through a
tortured legal process that has left them with little to show
for giving up their land claims and treaty rights. And they
did, they gave it up. They did not get what was promised in
return. S. 790 will right that wrong.
So to both of you, I have never seen anything as difficult
as land issues involving Native Americans. This is really a
complex area of the law. I just appreciate both the Democrats
and Republicans on this Committee listening to Chief Harris
about trying to right a wrong that was created 25 years ago.
Thank you all very much.
The Chairman. Thank you, Senator Graham.
Senator Merkley, likewise I would offer you an opportunity
to give a statement concerning your bill today.
STATEMENT OF HON. JEFF MERKLEY,
U.S. SENATOR FROM OREGON
Senator Merkley. Thank you so much, Mr. Chairman and Vice
Chairman Udall. I am so pleased you have included this bill to
right a historic wrong regarding the fraudulent 1865 treaty.
Senator Wyden is a full partner in this, a co-sponsor, and
Congressman Greg Walden. The Warm Springs Reservation is within
his district in Oregon. He is introducing a companion bill on
the House side.
A big welcome to Council Member Ron Suppah of the
Confederated Tribes of the Warm Springs Reservation, who has
come here to testify in support of this bill. He has served
more than a decade on the council, he has served as the
chairman. He has worked to expand communications with the
neighboring tribes and with his membership. He is of the
Tyghpum band of the Itcheeskin speaking band that signed the
1855 treaty, the legitimate treaty. He also serves as a keeper
of longhouse songs. Welcome, great to have you here.
Over 150 years ago, the Tribes of Middle Oregon negotiated
and signed a treaty, the 1855 treaty, ratified in 1859, that
served as the bedrock of the trust relationship between the
Warm Springs Tribes and the U.S. Government. It established
what is today known as the Warm Springs Reservation and
required that the remaining lands held by the tribes be ceded
to the U.S.
As part of negotiations, the tribes insisted upon retaining
their off-reservation hunting, fishing and gathering rights,
which they have continued to exercise to this day. Ten years
after the initial treaty, J.W. Perit Huntington, an
unscrupulous superintendent of Indian Affairs for Oregon, drew
up a supplemental treaty that would have forced the tribes on
the Warm Springs Reservation to give up their off-reservation
rights and agree to a hall pass system to even leave the
reservation. This is now known as the 1865 treaty.
Huntington secured signatories to the treaty through fraud
and deception. Despite ample historical records that
conclusively show the 1865 treaty was a fraud, it still was on
Senator Hatfield, as his last piece of legislation, when he
was wrapping up his 30 years of Senate service, attempted to
disallow this treaty, to cancel this treaty. But that work now
falls to us today. So this bill, S. 832, will nullify the
fraudulent 1865 treaty and correct this historic wrong.
I would like to note that the Oregon Attorney General's
office has issued a legal opinion stating unequivocally that
the treaty is unenforceable. I have a letter to enter for the
record from her. I also have a statement from the Oregon
Governor that notes that it is the declared policy of the
Office of the Governor of the State of Oregon that the
fraudulent Huntington treaty is to be regarded as a nullity
with no effect whatsoever. It is past time to get this done.
The Chairman. Without objection.
Senator Merkley. There is bipartisan support from Oregon,
and I appreciate the Committee considering this legislation.
The Chairman. Thank you, Senator Merkley. Senator Cortez
Masto, any opening statements before we proceed to our
All right. With that, we will turn to our witnesses. First,
we will hear from Mr. John Tahsuda, who is Principal Deputy
Assistant Secretary for Indian Affairs, Department of Interior;
then from the Honorable William Harris, Chief of the Catawba
Indian Nation, Rock Hill, South Carolina; then the Honorable
Ron Suppah, Council Member, Confederated Tribes of Warm
Springs, Oregon, welcome. And then from Ms. Cecelia Fire
Thunder, President, Oglala Lakota Nation Education Coalition,
from Martin, South Dakota. Thank you for being here.
With that, we will turn to Assistant Secretary Tahsuda.
STATEMENT OF JOHN TAHSUDA, III, PRINCIPAL DEPUTY
ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S.
DEPARTMENT OF THE INTERIOR
Mr. Tahsuda. Good afternoon, Chairman Hoeven, Vice Chairman
Udall, members of the Committee. My name is John Tahsuda, I am
the Principal Deputy Assistant Secretary for Indian Affairs at
the Department of the Interior. Thank you for the opportunity
to present this statement on behalf of the Department regarding
the following bills: S. 279, the Tribal School Federal
Insurance Parity Act; S. 832, a bill to nullify the
Supplemental Treaty between the United States of America and
the Confederated Tribes and bands of Indians of Middle Oregon,
concluded on November 15, 1865, and S. 790 a bill to clarify
certain provisions of Public Law 103-116, the Catawba Indian
Tribe of South Carolina Land Claims Settlement Act of 1993.
First, I would like to address S. 279, the Tribal School
Federal Insurance Parity Act. This would amend the Indian
Health Care Improvement Act to allow tribal grant schools
operating under the Tribally Controlled Grant Schools Act, to
participate in the Federal Employees Health Benefits Program.
Presently, Public Law 100-297 prohibits the vast majority of
tribally controlled schools from participating in the FEHB
program which can create significant financial strains on
schools and disadvantaged school leaders in recruiting talented
Prior to 2010, tribal employers in general lacked access to
FEHB benefits for their employees. With the passage of 25
U.S.C. 1647(b), under the Indian Health Care Improvement Act,
tribal employers and urban Indian organizations carrying out
programs pursuant to Title V of the Indian Health Care
Improvement Act, or under the Indian Self-Determination and
Education Assistance Act, became eligible to participate in the
FEHB program. Participation in the FEHB program reduced costs
associated with providing employees benefits, as well as aided
these organizations in their recruitment and retention efforts.
Currently, all BIE-operated schools participate in the
FEHB. Additionally, four BIE-funded tribally-operated schools
also participate in the FEHB program, because these schools are
pursuant to the Indian Self-Determination and Education
Assistance Act. Under 25 U.S.C. 1647(b), tribal employers
operating under the Indian Self-Determination and Education
Assistance Act self-determination contracts and Title V
contracts are eligible to purchase FEHB coverage for their
employees. However, that does not extent eligibility to the
tribally controlled schools under the Tribally Controlled Grant
School Act. Therefore, 126 of the Bureau of Indian Education's
tribally controlled schools that operate under the Grant School
act may not purchase FEHB coverage under 25 U.S.C. 1647(b).
The Department understands and supports the efforts of its
tribal partners in seeking a legislative fix that will allow
parity for schools operating under the Tribally Controlled
Schools Act. The continued inability of these schools to access
FEHB creates unfair budgetary constraints and exacerbates an
already difficult task in recruiting highly-qualified teachers
in often geographically isolated schools.
As such, the Department supports S. 279, the Tribal School
Federal Insurance Parity Act, and looks forward to increasing
parity for tribally controlled grant schools. I would also like
to add personally a thank you to Cecelia Fire Thunder for her
tireless efforts in trying to resolve this problem on behalf of
Next, I would like to address S. 832, the Confederated
Tribes and Bands of Middle Oregon, today known as the
Confederated Tribes of the Warm Springs Reservation. They
signed a treaty on June 25th of 1855, ceding most of their
aboriginal territory to the United States. This area now makes
up most of what we know as Central Oregon. On November 15th,
1865, they were forced into signing a supplemental treaty which
purported to restrict them from leaving the reservation without
written permission from the agency superintendent. These
restrictions are unreasonable restrictions on the rights of the
Warm Springs people. We are aware of no other tribe that is
currently subject to such a restrictive treaty. As such, the
Department has no objection to S. 832.
Finally, S. 790, a bill to clarify certain provisions of
Public Law 103-116, the Catawba Indian Tribe of South Carolina
Land Claims Settlement Act of 1993. This provides congressional
authorization for the Secretary of the Interior to take certain
land into trust on behalf of the Catawba Indian Nation for the
purpose of conducting a gaming facility. Generally, the bill
authorizes the tribe to own and operate a gaming facility on
land identified in the bill and requires that gaming facility
to operate in accordance with the Indian Gaming Regulatory Act.
Currently, Section 14 of the Catawba Settlement Act states
that the Indian Gaming Regulatory Act shall not apply to the
Tribe, and with regard to gaming, gives the Tribe only those
rights and responsibilities set forth in the settlement
agreement with the State of South Carolina. The bill is
intended to make the IGRA applicable to the Tribe, including
the important protections and authorities that it provides for
tribes generally, such as the option of entering into a tribal-
State Class III gaming compact with the State, enactment of
tribal gaming ordinances and the use of net gaming revenues.
However, we have several technical suggestions to offer.
First, the language in Section 1(b) focuses on IGRA's
application to gaming facility, but does not address the
application of IGRA's provisions to the Tribe. As indicated
previously, the exclusion provision at Section 14 of the
underlying Settlement Act specifically applies to the Tribe. To
address this, the bill could be amended to clarify that IGRA is
applicable to the Tribe, that only land identified in S. 790
would be gaming-eligible for the tribe, and that the land
acquired under the bill's provisions would qualify as Indian
lands under IGRA.
In addition, the Settlement Act at Section 12(m) exempts
the Tribe from the provisions of 25 C.F.R. Part 151. This is
the Department's fee-to-trust regulation which we rely on for
making discretionary trust acquisitions. The language of
Section 1(c) of S. 790 implies that the acquisition of land for
trust purposes by the Secretary would be discretionary, rather
than a mandatory acquisition. The bill could be amended to
indicate whether, fi this is a discretionary acquisition, the
Secretary should apply 25 C.F.R. Part 151, including provisions
of the National Environmental Policy Act, or the bill could
clarify whether the land to be acquired will be designated as
on-reservation or off-reservation. On-reservation would be
processed under 25 C.F.R., Section 151.10, or if it is deemed
off-reservation, would be processed under 25 C.F.R. Section
151.11. This change would create more clarity regarding the
administrative process for placing the land into trust.
We are happy to work with the bill's sponsors and the
Committee on these changes. Thank you for the opportunity to
testify before the Committee. I look forward to answering any
questions you may have.
[The prepared statement of Mr. Tahsuda follows:]
Prepared Statement of John Tahsuda, III, Principal Deputy Assistant
Secretary, Indian Affairs, U.S. Department of the Interior
Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of
the Committee. My name is John Tahsuda and I am the Principal Deputy
Assistant Secretary for Indian Affairs at the Department of the
Thank you for the opportunity to present this statement on behalf
of the Department regarding the following bills: S. 279, the Tribal
School Federal Insurance Parity Act; S. 790, A bill to clarify certain
provisions of Public Law 103-116, the Catawba Indian Tribe of South
Carolina Land Claims Settlement Act of 1993; and S. 832, A bill to
nullify the Supplemental Treaty Between the United States of America
and the Confederated Tribes and Bands of Indians of Middle Oregon,
concluded on November 15, 1865. Each of these bills is discussed below.
S. 279, the Tribal School Federal Insurance Parity Act, would amend
the Indian Health Care Improvement Act (25 U.S.C. 1647b) to allow
tribal grant schools operating under the Tribally Controlled Grant
Schools Act (TCGSA) to participate in the Federal Employees Health
Benefits (FEHB) Program. Presently, Public Law 100-297 prohibits the
vast majority of tribally controlled grant schools from participating
in the FEHB Program, which can create significant financial strains on
schools and disadvantage school leaders in recruiting talented
educators. The Department supports S. 279.
The mission of the Bureau of Indian Education (BIE) is to provide
quality education opportunities from early childhood through life in
accordance with a tribe's needs for cultural and economic well-being,
in keeping with the wide diversity of Federally recognized Indian
tribes and Alaska Native villages as distinct cultural and governmental
entities. The BIE manages a school system with 169 elementary and
secondary schools and 14 dormitories providing educational services to
47,000 individual students, with an Average Daily Membership of 41,000
students in 23 States. The BIE also operates two post-secondary schools
and administers grants for 29 tribally controlled colleges and
universities and two tribal technical colleges.
Prior to 2010, tribal employers, in general, lacked access to FEHB
benefits for their employees. With the passage of 25 U.S.C. 1647b under
the Indian Healthcare Improvement Act (IHCIA), tribes, tribal
employers, and urban Indian organizations carrying out programs
pursuant to Title V of the IHCIA or under the Indian Self Determination
and Education Assistance Act became eligible to participate in the FEHB
Program. Participation in the FEHB Program reduced costs associated
with providing employee benefits as well as aided organizations in
their recruitment and retention efforts.
Currently, all BIE-operated schools participate in FEHB.
Additionally, four BIE-funded tribally operated schools also
participate in FEHB Program. These tribally controlled schools operate
pursuant to the ISDEAA. Under 25 U.S.C. 1647b, tribal employers
operating ISDEAA self-determination contracts and Title V contracts are
eligible to purchase FEHB coverage. However, 25 U.S.C. 1647b does not
extend eligibility to tribally-controlled schools under the TCGSA.
Therefore, 126 of BIE's tribally-controlled schools that operate
pursuant to the TCGSA may not purchase FEHB coverage under 25 U.S.C.
In April 2012, the U.S. Office of Personnel Management sent a
letter to the Department's Office of the Solicitor seeking the
Solicitor's opinion regarding OPM's legal conclusion regarding the
ineligibility of schools operating under TCGSA for FEHB as the TCGSA
schools are not within the scope of eligible tribal employers under 25
U.S.C. 1647b. In June 2012, the Solicitor issued an opinion confirming
OPM's conclusion that schools operating under TCGSA are ineligible for
FEHB. In October 2017, a tribal grant school representative requested
the Solicitor to reconsider their position. However, the Solicitor
stated its legal determination would stand.
The Department understands and supports the efforts of its tribal
partners in seeking a legislative fix that would allow parity for
schools operating under the TCGSA. The continued inability of these
schools to access FEHB creates unfair budgetary constraints and
exacerbates an already difficult task of recruiting highly-qualified
teachers in often geographically-isolated schools. As such, the
Department supports S. 279, the Tribal School Federal Insurance Parity
Act, and looks forward to increasing parity for tribally controlled
The Confederated Tribes and Bands of Middle Oregon, today known as
the Confederated Tribes of the Warm Springs Reservation, signed a
treaty on June 25, 1855 ceding most of their aboriginal territory to
the United States. That area makes up most of what we now know as north
On November 15, 1865, the Tribes were forced into signing a
``Supplemental'' treaty, which is the subject of this legislation and
further restricted the rights of tribal members to the extent that,
among other things, they could not leave the reservation without
written permission from the Agency Superintendent. These restrictions
are unreasonable restrictions on the rights of the Warm Springs people.
We are aware of no other tribe that is currently subject to such a
S. 832, ``A bill to nullify the Supplemental Treaty Between the
United States of America and the Confederated Tribes and Bands of
Middle Oregon, concluded on November 15, 1865,'' would provide that the
Supplemental Treaty shall have no force or effect. As such, the Bureau
of Indian Affairs has no objection to S. 832.
S. 790, ``A bill to clarify certain provisions of Public Law 103-
116, The Catawba Indian Tribe of South Carolina Land Claims Settlement
Act of 1993, and for other purposes,'' provides Congressional
authorization for the Secretary of the Interior to take certain land
into trust on behalf of the Catawba Indian Nation (Tribe) for the
purpose of conducting a gaming facility.
Generally, the bill authorizes the Tribe to own and operate a
gaming facility on land identified in the bill, and requires the gaming
facility to ``operate in accordance with the Indian Gaming Regulatory
Act'' (IGRA). Currently, section 14 of the Catawba Settlement Act
states ``[t]he Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.)
shall not apply to the Tribe'' (emphasis added) and, with regard to
gaming, gives the Tribe the rights and responsibilities set forth in
the settlement agreement and State (of South Carolina) law.
The bill is intended to make the IGRA applicable to the Tribe,
including the important protections and authorities that it provides
for tribes generally, such as the option of entering into a Tribal-
State class III gaming compact with a state, enactment of tribal gaming
ordinances, and the use and net gaming revenue.
We have several technical concerns with the language. First, the
language in Section 1(b) focuses on the IGRA's application to the
gaming facility, but does not address application of the IGRA's
provisions to the Tribe. As indicated previously, the exclusion
provision at section 14 of the underlying Settlement Act specifically
applies to the Tribe. To address this, the bill could be amended to
clarify that IGRA is applicable to the Tribe, that only land identified
in S. 790 would be gaming eligible for the Tribe; and that land
acquired under the bill's provisions qualifies as ``Indian lands''
under the IGRA. Indian lands under IGRA include all lands within the
limits of any Indian reservation; and any lands title to which is
either held in trust by the United States for the benefit of any Indian
tribe or individual or held by any Indian tribe or individual subject
to restriction by the United States against alienation and over which
an Indian tribe exercises governmental power.
In addition, the Settlement Act, at section 12(m), exempts the
Tribe from the provisions of 25 C.F.R. Part 151, the Department's Fee-
to-Trust regulations, which the Department relies on for making
discretionary trust acquisitions. The language at section 1(c) of S.
790 implies that the acquisition of land for trust purposes by the
Secretary would be a discretionary, rather than a mandatory
acquisition. The bill could be amended to indicate whether, if this is
a discretionary acquisition, the Secretary will apply 25 C.F.R. Part
151, including provisions of the National Environmental Policy Act
(NEPA), to this acquisition. Similarly, the Bill could clarify whether
the land to be acquired will be designated as an on-reservation
application, which would be processed under 25 C.F.R. 151.10, or as
an off-reservation application processed under 25 C.F.R. 151.11. This
change would create more clarity regarding the administrative process
for placing the land into trust.
The Department would be happy to work with the bill's sponsors and
the Committee on these technical changes.
Thank you for the opportunity to testify today before the
committee. I look forward to answering any questions the Committee may
The Chairman. Thank you, Secretary Tahsuda.
STATEMENT OF HON. WILLIAM HARRIS, CHIEF, CATAWBA INDIAN NATION
Mr. Harris. Thank you, Chairman Hoeven, thank you, members
of the Committee, for this opportunity to testify on S. 790,
legislation that would bring a measure of justice to the
Catawba people and lift a whole region of the Carolinas out of
an economic hardship by creating up to 4,000 jobs.
My name is William Harris. I serve as Chief of the Catawba
Indian Nation. When I was a child, only 60 years ago, the
Catawba Indian Nation was fully recognized by the Federal
Government and exercised the level of sovereignty held by
virtually every tribe in the United States. Since then, we have
traveled a difficult path that brings us to this moment.
In 1959, we became the only tribe in the eastern portion of
the United States to be terminated by act of Congress. In 1980,
we filed a lawsuit to regain our original reservations, whose
boundaries are approximately 20 miles from the land that is
subject to S. 790. This boundary also serves as the boundary
between North and South Carolina, the two States where the vast
bulk of our aboriginal lands lie.
In 1993, we reached a settlement agreement with the State
of South Carolina, which was implemented by act of Congress. In
South Carolina, as I will describe briefly below, we are
subject to many restrictions. However, in North Carolina, we
understood, as did North Carolina and Federal officials, that
we would have the status of a fully-restored tribe and be able
to take land into trust that would not be restricted by our
agreement with South Carolina. In South Carolina, we were
promised IGRA-like gaming opportunities, as well as mandatory
rights to reassemble our 4,000-acre reservation, and
affirmation of the rights of our children to go to public
So why do we not have gaming? Why are we only able to add
300 acres to our existing reservation? And why did we transfer
our last remaining commercial lands to the local public school
system, where our children have a 60 percent graduation rate?
In other words, why we were deprived of the most important
things we bargained for in return for giving up our lands?
In brief, South Carolina taxed our gaming out of existence
while recouping most of their contribution to our settlement.
South Carolina denied us the right to game on our reservation,
even though the State authorized casino cruises and our
settlement agreement said, if the State authorizes gaming, we
can do it as well.
We were limited to acquiring new lands in certain zones,
where it turned out that landowners would not sell, or they
drastically increased prices to unreasonable levels. And
finally, South Carolina charged us to send our kids to the
local public school, putting the Tribe millions of dollars into
debt, which we paid off last year, transferring our last
remaining commercial properties to the school district.
Obviously, we never would have agreed to this settlement
with South Carolina if we had understood that it meant
federally-enforced poverty for the Tribe. Our children at
inter-tribal events and ceremonies meet and befriend children
of other tribes, and the question is asked: Why can't we have
education scholarships? Why don't we have community facilities,
cultural programs and health care like they do? Why don't our
children have jobs like them? Why are we in poverty while they
S. 790 clarifies the original intent of the 1993 Act that
the tribe could take land into trust in North Carolina without
the restrictions of the Tribe's agreement with South Carolina.
It would also apply the strict regulations of IGRA to the North
Carolina facility, with one exception, Section 20. Even that
exception can be eliminated, so long as Congress is clear that
we can establish gaming operations on the proposed lands.
It is important to note that the proposed location is
within our aboriginal lands, our congressionally-established
service area, our historical treaty-based hunting grounds and
it is not off-reservation gaming, a term that is used to
describe tribes that seek to go hundreds of miles from their
aboriginal lands. We are staying within our heartland.
We are happy to work with this Committee and the Department
of Interior to address any technical concerns you may have.
What I have just described to you all happened within my
lifetime. This Committee has a chance to right a historical
wrong, and I urge your support for S. 790.
[The prepared statement of Mr. Harris follows:]
Prepared Statement of Hon. William Harris, Chief, Catawba Indian Nation
Chairman Hoeven, Vice Chairman Udall and Members of the Committee,
thank you for this opportunity to provide testimony regarding S. 790. I
am here to express the full support of the Catawba Indian Nation
(``Tribe'') for S. 790, which will clarify the rights restored to the
Tribe in the Catawba Land Claims Settlement Act of 1993 (``Catawba
Federal Settlement Act''), which itself reversed the 1959 termination
of the Tribe's status. \1\ In doing so, it will bring justice to the
Catawba and assure that Catawba gaming operations are subject to the
same strict regulation as other tribal gaming operations. As we note
below, S. 790 does not create any concerning precedent. Rather, it
restores the original intent of the Catawba Federal Settlement Act,
while limiting the Tribe's land acquisition to its congressionally
established service area, which was deemed in the Act to be the
equivalent of ``on or near reservation'' for certain purposes,
reflecting its historic significance to the Tribe. In this letter, I
would like to provide some additional background on the need for the
legislation and dispel some significant misstatements made by a project
opponent. As an attachment, I have included a Myth/Fact sheet which
directly addresses various questions that have been raised in our
discussions with Committee staff.
\1\ Catawba Tribe of South Carolina Division of Assets Act, Pub. L.
86-322, 73. Stat. 592 (Sept. 21, 1959) (formerly codified at 25 U.S.C.
Purpose of S. 790. By authorizing the acquisition of a 17-acre site
in Kings Mountain, Cleveland County, North Carolina, S. 790 will
fulfill the understanding of the Tribe, as well as Congressional and
North Carolina leaders, that the Tribe could have land taken into trust
in the Tribe's congressionally established service area in North
Carolina, where it would not be subject to the restrictions the Tribe
had negotiated in its settlement with South Carolina. Additionally, S.
790 will apply the strict requirements of the Indian Gaming Regulatory
Act (IGRA) to the Tribe's activities at the Kings Mountain site,
bringing Catawba gaming into the center of Federal Indian gaming policy
by addressing an ambiguity in the Catawba Federal Settlement Act, which
provides that the Tribe is not subject to IGRA.
Working with our North Carolina friends to create 4,000 jobs and
support economic development. Before advancing on this initiative to
take land into trust in Kings Mountain, Cleveland County, the Tribe
approached both the Kings Mountain and Cleveland County leadership, who
welcomed the Tribe's proposal with open arms. See Attachment 1, *
Letters from Local Officials. This project will spark extraordinary
economic development, providing critically needed employment in a hard
hit area of North Carolina and South Carolina (the project is only one
mile from the state border), in addition to allowing the Catawba to
become economically self-sufficient. It will immediately create
thousands of construction jobs, and up to 4,000 permanent jobs.
Notably, the Tribe and Cleveland County have reached a detailed inter-
governmental agreement to address public safety, taxation,
jurisdiction, and other issues associated with the establishment of a
casino/resort operation at the proposed location.
* The information referred to has been retained in the Committee
Confirming the understanding of all parties that the Tribe could
have land taken into trust in North Carolina. Regrettably, the Catawba
Federal Settlement Act, whereby the Catawba gave up claims in both
North and South Carolina, is widely regarded as one of the worst land
claim settlements for a Tribe in modern Federal Indian policy. Of
course, the Catawba negotiated its settlement agreement with South
Carolina at a time when the Tribe was at its weakest and therefore
least able to resist the demands of South Carolina. The Act, which
among other things implements the South Carolina agreement, was so
troubling that this very Committee, in the accompanying Senate Report,
Therefore, beyond furtherance of the general federal policies
of encouraging consensual settlements, fostering Indian self-
determination, and restoring terminated Indian tribes, the
Catawba Land Claim Settlement Act has no general Indian policy
implications. The Committee expressly intends that it not serve
as precedent or a model for any other settlement and that it
shall neither set forth nor impact in any way federal Indian
Senate Report 103-124 at 27 (August 5, 1993). Notwithstanding its
many flaws, the Tribe thought it had secured certain important rights
through its enactment. The central, but not exclusive, purpose of the
Catawba Federal Settlement Act was to settle the litigation brought by
the Tribe in South Carolina over the dispossession of its former 15-
mile square reservation (``Original Reservation'') established in
treaties with the British Crown. \2\ As a result, the majority of the
Catawba Federal Settlement Act's provisions address the Tribe's
relationship with South Carolina, which has received all the benefits
it secured under the Act, while the commitments made to the Tribe have
largely been thwarted. However, the Tribe also gave up its land claims
in North Carolina and understood, as did Congressional and North
Carolina leadership, that it had secured the right to take land into
trust in North Carolina within its congressionally established service
\2\ The Original Reservation was in the Province of Carolina. When
the Province of Carolina was divided into two states, the state
boundary line was set to trace the northern boundary of the Original
Reservation placing it entirely in South Carolina while making a
triangular indent into North Carolina. Of course, the Original
Reservation was only a small portion of the aboriginal territory of the
Catawba. As previously stated, the Kings Mountain site is less than 20
miles from the boundary of the Original Reservation.
In support of the Tribe's understanding, the following have
submitted signed statements: President Reagan's Secretary of the
Interior, Manuel Lujan (who approved the original settlement
agreement); former Congressman Bill Richardson, the chairman of the
House subcommittee with jurisdiction over the original legislation;
both House and Senate congressional staff (including Chairman Inouye's)
directly responsible for the legislation; the Chair of the North
Carolina Commission on Indian Affairs and the North Carolina Governor's
general counsel at the time of passage of the Act; and other relevant
Federal and Tribal officials. See Attachment 2, * Statements of Key
Leaders Regarding Tribal Rights in North Carolina and excerpts
* The information referred to has been retained in the Committee
Interior: Key Interior officials involved in the negotiation of the
Catawba Land Claim Settlement Act support the Catawba's understanding
regarding the application of the Act to the Tribe's Federal service
area in North Carolina, including Manual Lujan, who served as Secretary
of the Interior during the negotiation of the Act, and Bill Ott, who
was the Interior witness and representative at the Senate hearing on
the Act and also the Eastern Region Director for the Bureau of Indian
Affairs at that time.
Secretary Manuel Lujan:
``With the Eastern Cherokee within its borders, North Carolina
was familiar with federally recognized tribes and a tribe's
right to acquire land into trust. This was not a controversial
issue at the time. For that reason, whether the Tribe could
take land into trust in North Carolina did not require lengthy
discussion. It was already understood that a mandatory land
into trust acquisition by the Catawba would be an inevitable
outcome of the Act.''
``At the time, those of us reviewing the Act knew that the
creation of a service area in North Carolina meant that the
Tribe could fully exercise its sovereignty by acquiring land
into trust in North Carolina. It was our mutual understanding
that the Catawba could apply for mandatory trust status for its
North Carolina lands.''
``Your support for expeditious processing of the Catawba's
mandatory application would be greatly appreciated and would
bring a measure of justice to a Native people who have suffered
repeated wrongs .''
Bill Ott, Eastern Region Director:
``I was directed to represent Indian Affairs at a
Congressional Hearing regarding proposed language for the Act
which also incorporated Federal Recognition of the Catawba
Tribe and provided for a Service Area which included adjacent
counties in the State of North Carolina.. It was the
understanding of Indian Affairs that the delineation of the
Tribal Service Area outside of the State of South Carolina
relative to the Federal Recognition Process was not an issue
since the South Carolina Strictures would not apply there.
``[B]ased on my understanding of the Act, I suggested [to the
Tribe] that taking land into trust pursuant to the Act's land
acquisition provisions and establishing a gaming facility
within the Tribe's delineated Service Area outside of the State
of South Carolina (i.e., within one of the six counties in
North Carolina) would be more feasible and compatible with
their federal recognition status under the Act.''
Tribe. The two principal tribal officials responsible for
negotiating the terms of the Act were Chief Gilbert Blue and Executive
Director Wanda George Warren. Both have very strong recollections
regarding the negotiation of acquisition rights throughout the Tribe's
service area, including the North Carolina portion.
Gilbert Blue, Catawba Chief:
``It was our understanding that the Tribe would have full
tribal rights within the six counties of North Carolina that we
reserved under the Settlement Act. Rights that included taking
land into trust in North Carolina for economic development.''
``With economic development in mind we did extensive research
with Pat Clark into the fee-to-trust process and fully expected
that we could use lands in the North Carolina service area as
part of our mandatory takings ``as on or near the
reservation.'' To the best of my knowledge, the other parties
we negotiated with understood this as well.''
``Our willingness to sign the Settlement Act was premised on
inclusion of the six- county service area. That portion of the
Act was added at the insistence of the Tribe and we would not
have signed without it. We had hoped for similar rights in
South Carolina but agreed to the limitations in the Act
pertaining to South Carolina to address our neighbors concerns
about environmental issues.''
``I understood, as did the other Tribal leaders working on the
Act, that the Tribe would be able to take land into trust in
North Carolina pursuant to the mandatory provisions in the Act
that authorize the Secretary to take land into trust that is
not contiguous to the Tribe's current reservation and not
within the Act's expansion zones.''
Wanda George Warren, Catawba Executive Director:
``We knew that the creation of a service area in North
Carolina meant that the Tribe could fully exercise its
sovereignty by acquiring land into trust in North Carolina.''
``The State of North Carolina did not have the same concerns
regarding tribal sovereignty and jurisdiction because of its
experience with the Eastern Cherokee.''
``I understood, as did Pat [Patrick Clark, Chairperson, North
Carolina Commission of Indian Affairs] and those of us working
on the Act, that the Tribe would be able to take land into
trust in North Carolina pursuant to the Act, and therefore on a
mandatory basis, so long as the land was within the Tribe's
Congress. The Tribe has spoken with key Congressional staff
involved in the development of the Act, including Patricia Zell, Staff
Director of the Senate Committee on Indian Affairs under the
chairmanship of the late-Daniel Inouye (himself a great friend of the
Tribe) and Marie Howard Fabrizio, a senior staffer on the House Natural
Resources Committee. Both support the Tribe's right to acquire land in
the North Carolina service area under the Act.
Marie Howard Fabrizio and Patricia Zell:
``We are writing to provide a personal perspective on the
Catawba Indian Land Claims Settlement Act in support of the
Catawba Indian Nation's request to take land into trust on a
mandatory basis within the Tribe's Federal service area in
``The land-into-trust applications for the establishment of
this reservation were mandatory in nature, not discretionary.''
``Additionally, the Federal service area in North Carolina
would not be subject to those restrictions imposed by the
Catawba Settlement Act that only reference South Carolina.''
``The scope of the Tribe's rights in the Federal service area,
including the North Carolina counties, was elaborated upon in
the Senate report. .This language should be broadly read
consistent with the intent of Congress to aid the Catawbas and
consistent [with] the Indian canon of construction that
ambiguities are to be read in favor of Tribes.In the case of
the Catawba, the Tribe has mandatory acquisition rights.''
``We urge you to support the mandatory and expedited taking of
land into trust for the Tribe.''
North Carolina. The key participants involved in the negotiation of
the North Carolina service area, including the North Carolina
officials, confirm that the premise and promise of the Act included
that the Tribe would have the right to take land into trust in North
Carolina pursuant to the Act and that this was the official position of
the State of North Carolina and that the South Carolina restrictions
would not apply in North Carolina. Set forth below are excerpts from a
statement of the Chairperson of the North Carolina Commission of Indian
Affairs, as well as from a statement of the general counsel to then-
North Carolina Governor Martin confirming the Commission's authority to
represent North Carolina in the Catawba Settlement Act negotiations.
``I served as the Chairperson of the North Carolina Commission
of Indian Affairs ('Commission'), from 1990-1993 and in that
capacity was centrally involved in shaping North Carolina
policy relevant to the Catawba Indian Nation and negotiating
the Catawba Indian Land Claims Settlement Act of 1993
``I, and Chief Blue, agreed that inclusion of a service area
in North Carolina was essential to ensuring that Catawba tribal
members residing in North Carolina would retain benefits
similar to those preserved for Catawba in South Carolina,
including the benefit of pursuing economic development projects
to benefit the Catawba Indian Nation.''
``I understood, as did Chief Blue and Catawba representatives
working on the Act, that the Tribe would be able to take land
into trust in North Carolina pursuant to the Act, and therefore
on a mandatory basis, so long as the land was within the
Tribe's service area. This was a clear understanding during the
drafting and negotiating of the Act.''
``The state was aware that the Catawba could mandatorily
acquire land into trust under the Act's provisions.''
``It was always my understanding that the Catawba could apply
for mandatory trust status for its North Carolina lands.''
James R. Trotter, General Counsel, North Carolina Governor
``Based on both the law and my personal experience, the NCSCIA
is the lead agency representing the State in all matters
pertaining to Indian Affairs.''
``I have reviewed the affidavit provided by Patrick Clark, who
was the Chairperson of the NCSCIA during negotiation and
passage of the Catawba Indian Land Claims Settlement Act of
1993 and I have no objections to its content, nor any reason to
dispute her testimony.''
``Then-NCSCIA Chairperson Patrick Clark has affirmed that it
was the position of the State of North Carolina as represented
by the NCSCIA that the Catawba Indian Nation, pursuant to the
mandatory land acquisition provisions in its settlement act
would be able to take land into trust in North Carolina, but
limited to that portion of the Catawba's service area that
falls within North Carolina. As such, this represents the
official position of the State of North Carolina during those
negotiations.'' (Emphasis added.)
By expressly authorizing the acquisition of the Kings Mountain
site, the Congress would be fulfilling this original understanding of
the drafters of the Catawba Federal Settlement Act.
Staying inside the Catawba's congressionally established service
area and aboriginal lands. It was important to the Tribe to identify a
site within the Tribe's congressionally established federal service
area and aboriginal lands.
The Catawba Federal Settlement Act treats the Tribe's entire
federal service area, including the location that the Tribe now
proposes to have taken into trust, for certain purposes as ``on or near
the reservation'', specifically stating at 4(b) that ``[f]or the
purpose of eligibility for Federal services made available to members
of federally recognized Indian tribes because of their status as Indian
tribal members, Members of the Tribe in the Tribe's service area shall
be deemed to be residing on or near a reservation.'' In the exact same
paragraph, the Catawba Federal Settlement Act states that ``the Tribe
and the Members shall be eligible for all benefits and services [not
just health services as some allege] furnished to federally recognized
Indian tribes and their members because of their status as Indians.''
(emphasis added). This same paragraph in the Catawba Federal Settlement
Act reinforces that: ``the Tribe shall be eligible to the special
services performed by the United States for tribes because of their
status as Indian tribes.'' The taking of land into trust for tribes and
their members is one of the most important services offered by the
Department of the Interior (hence, the BIA Office of Trust Services,
which handles tribal trust land issues). As the letters of support
demonstrate (see Attachment 2), the Tribal leadership negotiated for
these rights in return for the major cessions made by the Tribe.
The Tribe's Use and Occupancy of the King's Mountain Area is well
established. The Catawba Federal Settlement Act was intended to settle
a land claim brought by the Nation for its previous 144,000 acre, 15-
mile square reservation (``Original Reservation''), which had been
established pursuant to two treaties with the British Crown. In the
Senate Report accompanying the Catawba Federal Settlement Act, this
The Catawba Indian Tribe signed two treaties with King George
III in 1760 and 1763. The Catawbas gained recognized title to
144,000 acres under the Treaty of Pine Tree Hill made in 1760,
which was confirmed with the Treaty of Augusta was made in 1763
with the King's Superintendent of Indian Affairs and the
Governors of the Southern Provinces [a term which encompassed
both present day North and South Carolina]. \3\ In those two
treaties the Tribe ceded its aboriginal territory and reserved
a 144,000-acre tract comprising much of the present states of
North and South Carolina.
\3\ The Southern Provinces within British America consisted of the
Province of Maryland, the Colony of Virginia, the Province of Carolina
(in 1712 split into North and South Carolina) and the Province of
Georgia. See Charter of Carolina (March 24, 1663), Lillian Goldman Law
Library, Yale Law School, available at http://avalon.law.yale.edu/
Senate Report 103-124 at 15-16. The border of the Original
Reservation, located in the heart of the Catawba's aboriginal lands,
and well within the Tribe's congressionally established service area,
is less than 20 miles from the site identified in S. 790. Indeed, as
the Tribe has often reminded the United States, Catawba scouts were
instrumental in the victory of the American revolutionaries at Kings
Mountain \4\ over British forces, setting the stage for victory in the
South. Further, the Kings Mountain area is identified as Catawba
hunting grounds in more than one document, including the Treaty of
Augusta (1763). For a more detailed description of the Catawba Nation's
ties to the Kings Mountain area, see Attachment 3, * Catawba Historical
Nexus to the Congressionally Established Service Area in North Carolina
and http://www.native-languages.org/ncarolina.htm, providing a
historical map of the aboriginal territory in the State, a copy of
which is attached. \5\
\4\ The Kings Mountain battlefield is just south of the state
border, but the movements of the forces were throughout both North and
South Carolina in that vicinity.
\5\ The Eastern Band in its letter of opposition cites the Treaty
of July 20, 1777 (also known as the Treaty of Long Island of Holston)
assert that they ceded this specific land away and so it must be
theirs. However, the Eastern Band does not reveal that this treaty was
not between the Cherokee Nation as a whole with the United States, but
rather was ``between the Commissioners from the State of North Carolina
in Behalf of the said State of the One Part and the Subscribing Chiefs
of That Part of the Cherokee Nation Called the Overhill Indians of the
Other Part.'' The ``Overhill Cherokee'' is the term for the Cherokee
people located in their historic settlements in what is now Tennessee
on the west side of the Appalachian Mountains. See https://
tennesseeoverhill.com/overhill-cherokee-heritage/. The ``treaty''
itself is not specific to Cleveland County, but is a broad disavowal of
any Overhill Cherokee claims to a broad swath of land stretching from
the northern border of North Carolina to its southern border. As
described in footnote 7 below, the U.S. Indian Claims Commission found
that treaties of land cession did not indicate aboriginal title.
* The information referred to has been retained in the Committee
There is no crossing of state lines, nor is an extraordinary
precedent being set by the Kings Mountain site. First, the Catawba are
just as much a North Carolina tribe as they are a South Carolina tribe.
This is evident from the historical record, as well as from the Catawba
Federal Settlement Act, which states that ``[i]n treaties with the
Crown in 1760 and 1763, the Tribe ceded vast portions of its aboriginal
territory in the present States of North and South Carolina in return
for guarantees of being quietly settled on a 144,000-acre
reservation.'' See 2(a)(4)(A). The Catawba Federal Settlement Act
also provided for the Tribe to give up all subsequent land claims in
North Carolina and established a service area that expressly included
the North Carolina counties adjacent to York County, the location of
the Tribe's current trust lands.
Although the Tribe is not crossing state lines that issue is
irrelevant in any case as the Department of the Interior has looked at
and rejected prohibitions on so-called off-reservation acquisitions of
``out of state'' lands where a tribe is near a border or where the land
is within a tribe's service area. \6\
\6\ During the same period that the Catawba Federal Settlement Act
was under consideration the Department of the Interior was considering
revisions to its own fee-to-trust regulations at 25 C.F.R. Part 151. On
July 15, 1991, the Department of the Interior proposed amendments to
its existing regulations governing the fee-to-trust process. See 56
Fed. Reg. 32278 (July 15, 1991). The Department's proposed amendments
to 25 C.F.R. Part 151 included a new section governing the acquisition
of lands ``located outside of and noncontiguous to an Indian
reservation,'' as well as a new section titled, ``Considerations in
evaluating requests when the land is located outside of and
noncontiguous to an Indian reservation and will be used for gaming
purposes.'' Id. As proposed, 25 C.F.R. 151.11(b) would have
established a general rule preventing tribes from acquiring trust lands
located in other states:----(b) The land to be acquired in trust
should, in general, be located within the state(s) in which the tribe's
reservation or trust lands are currently located. Exception to this
requirement may be made for tribes which have lands in one state but
are located near the border of another state, or tribes which have no
trust lands. In situations where the land to be acquired is in a state
in which the tribe is not located, the Secretary will give greater
weight to the considerations concerning the effect of the land
acquisitions on state and local governments. However, all other things
being equal, the greater the distance of the land proposed to be taken
in trust from the tribe's current or former reservation or trust land,
the greater the justification required to take the land in trust. As
warranted and relevant to the proposal under consideration, the
justification could address such factors as the cost and ability to
administer the land to be acquired in trust. In addition, applications
for trust land located within an urbanized and primarily non-Indian
community must demonstrate that trust status is essential for the
planned use of the property and the economic benefits to be realized
from said property.----Id. at 32279 (emphasis added). The Department
published the final rule amending 25 C.F.R. Part 151 on June 23, 1995,
after Congress had enacted the Catawba Federal Settlement Act. See 60
Fed. Reg. Vol. 32874-79 (June 23, 1995). Importantly, the final rule
did not include the general restriction against acquiring ``out of
state'' land in trust on behalf of a tribe.----The Department
ultimately rejected the proposal, stating, ``The provisions which
prohibit off-reservation acquisitions of 'out-of-state' lands have been
deleted.'' Id. at 32,876. In doing so, it cited tribal comments on its
proposed regulation:----Section 151.11(b) Geographic Limitations
Comment: Those provisions which prohibit off-reservation acquisitions
of ``out-of-state'' lands (i.e., lands in a state other than that in
which the acquiring tribe's ''reservation or trust lands'' are located)
were opposed on the grounds that out-of-state lands may be historically
significant, vital to tribal economic self-sufficiency, or within a
designated tribal consolidation area or tribal service area.----60 Fed.
Reg. 32875-76 (June 23, 1995)(emphasis added).
The Tribe welcomes the strict imposition of IGRA's regulatory
scheme on its gaming operations. The Catawba Federal Settlement Act set
forth the Tribe's gaming rights in South Carolina, but it also broadly
provides that IGRA does not apply to the Tribe. See Federal Settlement
Act at 14(a) (``The Indian Gaming Regulatory Act.shall not apply to
the Tribe.'') (internal citation omitted). This creates uncertainty
regarding the regulation of Catawba gaming operations in North
Carolina. For a host of reasons, including legal, financial, public
safety and more, the Tribe will operate gaming at the Kings Mountain
site in accordance with standards no less stringent than IGRA, whether
or not IGRA is applied to the Tribe. Nonetheless, the Tribe supports
Congress applying IGRA to the Tribe so that there are no lingering
questions about the strictness of the Tribe's regulatory scheme,
including the character of the Tribe's business partners.
The Tribe is working with industry leaders to provide
comprehensive, highly regulated casino/resort operations. Without
supporting evidence, the Eastern Band of Cherokee Indians has suggested
that the Nation is under the sway of unscrupulous developers and that
this legislation would lead to an undermining of the Indian gaming
regulatory framework nationwide. To the contrary, the Tribe has
partnered with Delaware North, a 103-year old global food service and
hospitality company, which operates in the lodging, sporting, airport,
gaming, and entertainment industries. Delaware North employs
approximately 60,000 people worldwide and has over $3.2 billion in
The Eastern Band's assertions are an irrational distraction from
the fundamental goal of this legislation--which is to bring justice to
the Catawba and to allow the Catawba to have the same gaming rights as
other Tribes, subject to the same strict regulation that other tribes
are subject to. No one will manage or be associated in any way with
Catawba gaming operations who cannot meet IGRA or higher standards. The
Tribe's support for the application of IGRA to the Tribe's gaming
operation in S. 790 is proof positive that the Tribe will not tolerate
suspect parties in the management of its gaming operations.
Our Eastern Band brothers and sisters. In historic times, the
Catawba and the Cherokee were bitter enemies. However, over the last
100 years we have been closely allied on many important issues of
tribal sovereignty and tribal rights. There has also been significant
inter-marriage between the two tribes and we consider the Cherokee to
be our relatives. We have nothing but admiration for their success, not
just in building a gaming empire consisting of two highly successful
casinos, but more crucially in succeeding at lifting their people out
of poverty. The Catawba aspire to a similar success for our own people.
Because the Eastern Band has the experience, funding, and proven record
of accomplishment in gaming, the Tribe has approached them on several
occasions about partnering on the Kings Mountain project, but the
Eastern Band leadership has not been interested. Nonetheless, as
described immediately below, the Tribe has sought to be respectful of
Eastern Band interests, without sacrificing Catawba rights.
Staying outside of the Eastern Band's agreed upon ``Exclusive
Gaming Zone.'' One very important consideration in identifying the
Kings Mountain site was to stay outside of the Eastern Band's exclusive
gaming zone. The Eastern Band, in its compact with the State of North
Carolina, secured the exclusive right to live table gaming in all lands
west of I-26 (``Eastern Band Exclusive Gaming Zone''), a line that
roughly follows the generally agreed upon eastern edge of Cherokee
lands. See Attachment 4, * Excerpt EBCI-NC Compact. The Kings Mountain
site is approximately 55 miles east of I-26. Notably, it is only about
20 miles from the boundary of the Original Catawba Reservation, which
was in the center of Catawba aboriginal lands and which was the basis
for the Catawba's land claim. The site is about 34 miles from the
Tribe's current reservation lands.
* The information referred to has been retained in the Committee
Staying outside of the Eastern Band's Judicially Established
Aboriginal Lands. The Cherokee Nation brought a successful claim for
compensation for loss of aboriginal lands before the Indian Claims
Commission. The Eastern Band joined into settlement of that claim.
Before those claims could go forward there was a rigorous judicial
process to determine the aboriginal lands of the Cherokee Nation.
Attached is the map,* published by the Indian Claims Commission as part
of its final report, showing not only the great size of the judicially
established Cherokee aboriginal lands, but also that the Cherokee
aboriginal lands do not include Cleveland County. \7\ See Attachment
5.* As the face of the map itself states, ``This map portrays the
results of cases before the U.S. Indian Claims Commission or U.S. Court
of Claims in which an American Indian tribe proved its original tribal
occupancy of a tract within the continental United States.'' The
Cherokee, for reasons well known to the Catawba, could not prove
aboriginal title to Cleveland County.
\7\ A digitized version of the Indian Claims Commission's final map
can be found here: https://www.loc.gov/item/80695449/. This definitive
map should be contrasted with that of Charles C. Royce, which shows the
territorial limits of the Cherokee and just reaches, at the boundary,
Cleveland County. Royce did important map work, but with significant
limitations. The Indian Claims Commission praises Royce's maps, but
found that his maps show ``cessions'' but that ``often the cession did
not match the true ownership of the land.'' United States Indian Claims
Commission, Final Report, September 30, 1978, p. 127, fn. 1. This is
because non-Indian negotiators were always asking Tribal leaders to
cede land far beyond the holdings of their own tribe. In contrast to
the Royce maps, the Indian Claims Commission goes on to state that
``This map [meaning the Indian Claims Commission's final map] is a
positive expression of land determined [in a rigorous process] to have
been owned, without special reference to the cession or extinguishment
On behalf of the Catawba people, I thank this Committee for its
consideration of this important legislation. With the passage of S.
790, the Committee will restore justice to the Catawba and enable us to
lift all of our people out of poverty while rejuvenating an entire
region of North and South Carolina.
Supplemental Written Testimony
Why Section 20 of the Indian Gaming Regulatory Act should not be
applied to the Tribe. The Section 20 exception in S. 790 was intended
to make clear that the prohibition in IGRA on taking land into trust
for gaming purposes after 1988 would not apply to this particular
acquisition in North Carolina. This was to prevent confusion and
conflict between the part of the bill where Congress authorizes gaming
at this location, with the part where Congress applies IGRA. At the May
1, 2019 hearing, one senator objected to this exception, principally
arguing (1) that it would circumvent IGRA's consultation requirements
with state and local officials and (2) that the Tribe should not be
granted a new exception to Section 20, but fit into an existing
exception, most notably the two-part determination.
With regard to consultation, there likely is no more open or
thorough process for consultation than the Congressional process
(introducing a bill, holding a hearing, taking testimony, having a
markup and doing this in both the Senate and the House), so official
consultation is not being shorted in any way. Of course, in addition to
the Congressional process, the Tribe has been in extensive consultation
in North Carolina, leading to the full support of the two U.S. Senators
from North Carolina, as well as strong local support. This is not a
situation where legislation is being passed through the Senate without
With regard to whether the Tribe should fit into an existing
Section 20 exception, from a policy perspective it is important to note
that there are a number of exceptions to the 1988 restriction, with the
one for land acquired through settlement of a land claim more relevant
on the facts than the two-part. S. 790 is expressly intended to be a
clarification of the Catawba Land Claims Settlement Act. As both Chief
Harris and Principal Deputy Assistant Secretary Tahsuda testified, the
Tribe did not receive the promised benefits of the original settlement;
S. 790 is effectively an amendment to that act and the land claim
settlement, cleared by the two NC Senators, to right an historic wrong.
If the Tribe was required to go through the two-part determination it
would have the effect of moving the decision to authorize the Secretary
to take the land into trust from Congress/Interior to the state
governor, essentially defeating the purpose of the bill which is for
Congress to review how the Catawba were shorted and to provide an
amendment that would restore the original intent of the land claim
Why the Catawba Site is Not ``Off-Reservation Gaming''. The term
``off-reservation gaming'' has been thrown around very loosely in the
discussions regarding S. 790. It is worth noting that the American
Gaming Association (AGA) supports tribal gaming in locations where a
tribe has historical connections and that is also in reasonable
proximity to a Tribe's existing land base and does not consider such
gaming to be ``off-reservation'':
AGA fully supports tribal gaming that is located on or near
tribal lands that are within the historical and current
territory of the tribe operating such gaming and is operated in
accordance with all applicable laws.
However, locating tribal gaming facilities ``off-reservation''
in areas where a tribe has limited, or no, historical
connections and is not in reasonable geographic proximity a
tribe's existing land or population base alters the
characteristics and intent of tribal government gaming.
Therefore, AGA supports the incorporation of more transparency
and additional bright-line standards into the U.S. Department
of Interior Bureau of Indian Affairs' approval processes. Such
standards should require a tribe to have both historical and
geographic connections to the land they are seeking to acquire
for off-reservation gaming.
gaming/ Of course, the point of the AGA standards is to ensure
that tribes do not go far afield from their current locations.
By staying within its congressional established service area,
near to their current lands and within 25 miles of their
reservation as of 1988, the Catawba site meets both the spirit
and the letter of the AGA's standards.
In a position paper titled ``AGA's Modernized Position On Off-
Reservation Tribal Gaming,'' the AGA provides definitions for both
``historic connection'' and ``geographic connection''. See Attachment
A. As described below, the Catawba site falls within both definitions.
The Catawba Site meets the AGA requirement of a ``historic
connection.'' With regard to a ``historic connection,'' the AGA states
that it ``must be demonstrated [that a site is]. . . Part of a tribe's
historic territory, in which there is historical documentation of a
tribe's villages and occupancy, subsistence use in vicinity and/or
exercised governance.'' The Catawba site easily meets this
qualification (more detailed historic documentation can be found at
Site area is within Tribe's Congressionally established
service area (which by statute is to be treated as ``on or near
reservation'' for the purposes of Federal services and
Site area is within the area covered by tribe's treaty with
Great Britain, to which the United States acceded (providing
for the preservation of hunting rights in this area);
Site area is identified as Catawba hunting grounds, not only
in the treaty, but in subsequent colonial records;
Site area is in Catawba River Valley, traditional waterway
of the Catawba (See Attachment C, Letter of Dr. David G. Moore,
``In other words, decades of archaeological research provide
evidence of a long history of Catawba Indian occupation in the
Catawba River valley region of North Carolina.''; See
Attachment D, Letter of Professor James H. Merrell, Vassar,
regarding Catawba in North Carolina, ``. . .the Catawbas have
long called the Piedmont region of what would become North and
South Carolina `home.'. . . After the English arrived, the
Catawbas continued to hunt and farm in the Piedmont over a wide
area that straddled the state line.'');
Site area has been identified by local historians as one of
active Catawba use and occupancy (See Attachment E, Letter of
Martin Mongiello, Executive Director, Presidential Service
Center, ``I have been studying and writing about the Catawba
Nation for a long time. . .It is a pleasure to certify that the
Catawba Indian Nation rightfully resided in . Cleveland County,
The Catawba Site meets the AGA requirement of a geographic
connection. The AGA emphasizes that any land developed should be in
geographic proximity to a tribe and expressly provides ``that in no
event shall the land exceed a 25-mile radius from the tribe's Indian
lands held as of the adoption date of IGRA. . ..'' See Attachment A. As
defined in IGRA, ``Indian lands'' refers to ``all lands within the
limits of any Indian reservation. . ..'' 25 USC 2704(4)(A).
Tribal reservations cannot be disestablished except by Act of
Congress. \1\ On the adoption date of IGRA, the Tribe was pressing a
land claim based on its original reservation. The Tribe's case was
stronger than that of other Eastern tribes, which pressed for recovery
of aboriginal lands, as the Catawba were seeking recovery of actual
reservation lands (known as recognized title), as acknowledged by
\1\ As the Senate Committee on Indian Affairs noted in its report
accompanying the Catawba Settlement Act, as far back as the 1940's,
Interior acknowledged that the land claim for the original reservation
was probably valid: ``The Solicitor acknowledged that the land claim
was probably valid and potentially worth more than $75,000; but for the
next 16 years, while the Catawbas were under federal supervision, the
U.S. Department of the Interior did nothing to help the Catawbas
develop the basis of their claim or prosecute the claim.'' Senate
Report 103-124, p. 18. That reservation was legally intact until the
Tribe ceded it away in the land claim settlement in 1993, five years
after adoption of the IGRA.
We conclude that the Tribe can establish a prima facie case
under the Non-Intercourse Act, that the 1840 Treaty was void,
and that the Tribe is therefore entitled to recovery of its
reservation. . When the United States succeeded to Great
Britain's sovereignty in 1783, our new government did not
abrogate the 1763 Catawba Treaty. Therefore, according to
settled rules of international law, which are acknowledged by
the U.S. Supreme Court, the Catawba retained a vested right in
their reservation as sacred as the fee simple of a non-Indian,
which the United States Government was bound to respect. See
Mitchel v. United States, 9 Pet. (34 U.S.) 711, 733 (1835).
Department of the Interior, Litigation Report Regarding the
Catawba Land Claim at 3 (1977).
As of 1988, the adoption date of IGRA and the date that the AGA
considers critical, Congress had not extinguished the Catawba
reservation; therefore, it was still in place. The boundary of this
reservation is approximately 22 miles from the proposed site, so within
the 25-mile limit in the AGA's definition of off-reservation gaming.
May 10, 2019
Chairman John Hoeven,
Vice Chairman Tom Udall,
Senate Committee on Indian Affairs,
Hart Senate Office Building,
Re: Catawba Indian Excavation Sites in Morganton, NC and
the Work of the Exploring Joara Foundation
Dear Chairman John Hoeven and Vice Chairman Tom Udall:
My name is David Moore. I have conducted archaeological research in
the Catawba River valley in North Carolina for more than 30 years. I
received my MA and PhD in Anthropology from the University of North
Carolina at Chapel Hill and I am a professor of Anthropology at Warren
Wilson College in Asheville, North Carolina. I also serve as the Senior
Archaeologist with the Exploring Joara Foundation in Morganton, North
Carolina. The Exploring Joara Foundation engages the public in
archaeology in the Carolinas with the discovery of the Native American
town of Joara and the Spanish Fort San Juan. In their educational
activities, the Foundation emphasizes the history of Catawba Indian
ancestors at Joara and in the upper Catawba River valley.
Since, 2001, I have been engaged with Dr. Robin Beck from the
University of Michigan, Dr. Christopher Rodning from Tulane University,
and Dr. Rachel Briggs from the University of North Carolina at Chapel
Hill in a major study of the 15th-16th century Native Americans of the
Catawba River valley. Our research has focused on the Berry site,
located just north of Morganton in Burke County, North Carolina. We
have determined that the Berry site is the location of the Native
American town of Joara visited by the Spanish Captain, Juan Pardo, with
an army of 125 men in December, 1566. Pardo subsequently built Fort San
Juan at Joara. This Spanish settlement lasted for 18 months until May,
1568, and constitutes the earliest European settlement in the interior
of the United States, predating Roanoke by nearly 20 years and
Jamestown by 40 years.
Based on our extensive research throughout the valley, we identify
the sixteenth-century Native people of Joara as ancestors of today's
Catawba and Cheraw Indians. Also in the sixteenth century, the Catawba
valley south of Joara was home to many other Native American
settlements and a relatively large population. This region suffered a
major depopulation in the seventeenth century most likely due to the
various disruptions brought by the Indian slave trade and the changing
economy and politics of the early Colonial frontier. It is clear that
one strategy Native peoples of this region employed was to reform their
villages in another area or take refuge with other groups.
Many Catawba valley townspeople retreated south from these
destabilizing forces and were identified in the early eighteenth
century as towns of the Catawba Nation. In other words, decades of
archaeological research provide evidence of a long history of Catawba
Indian occupation in the Catawba River valley region of North Carolina.
I have attached a selected bibliography of works related to the
archaeological research described above.
David G. Moore, PhD.
Department of Sociology and Anthropology, Warren Wilson College
Publications related to the sixteenth-century archaeology of the
Catawba River valley.
Beck, Robin A., Jr--2013 Chiefdoms, Collapse, and Coalescence in
the Early American South. Cambridge University Press, New York.
Beck, Robin A., Jr., David G. Moore, Christopher B. Rodning,
Timothy Horsley, and Sarah C. Sherwood--2018 A Road to Zacatecas: Fort
San Juan and the Defenses of Spanish La Florida. American Antiquity.
Vol. 83, No. 4 (577-597).
Beck, Robin A., Lee A. Newsom, Christopher B. Rodning, and David G.
Moore--2017 Spaces of Entanglement: Labor and Construction Practice at
Fort San Juan de Joara. Historical Archaeology 51(2):167-193.
Beck, Robin A.Jr., Christopher B. Rodning, and David G. Moore.--
2016The Limits of Empire: Colonialism and Household Practice at the
Berry Site, 1566-1568. The University Press of Florida, Gainesville.
Beck, Robin A., Jr., David G. Moore, and Christopher B. Rodning--
2011 Limiting Resistance: Juan Pardo and the Shrinking of Spanish La
Florida, 1566-1568. In Enduring Conquests: Rethinking the Archaeology
of Resistance to Spanish Colonialism in the Americas, edited by Matthew
Liebmann and Melissa S. Murphy, pp. 19-39. School for Advanced Research
Press, Sante Fe, NM.
Beck, Robin A. Jr., Christopher B. Rodning, and David G. Moore--
2010Limiting Resistance: Juan Pardo and the Shrinking of La Florida ,
1566-1568. In Enduring Conquests: Rethinking the Archaeology of
Resistance to Spanish Colonialism in the Americas, edited by Matthew
Liebman and Melissa S. Murphy, pp. 19-39. School for Advanced Research
Press, Santa Fe, New Mexico.
Beck, Robin A., Jr., David G. Moore and Christopher Rodning--2006
Identifying Fort San Juan: a Sixteenth-Century Spanish Occupation at
the Berry Site, North Carolina. Southeastern Archaeology 25(1):65-77.
Beck, Robin A., Jr. and David G. Moore--2002The Burke Phase: A
Mississippian Frontier in the North Carolina Foothills. Southeastern
Levy, Janet, Alan May and David Moore--1990 From Ysa to Joara:
Cultural Diversity in the 15th and 16th Century Catawba Valley. In
Columbian Consequences, Vol. 2, ed. David Hurst Thomas, Smithsonian
Moore, David G.--2006 Catawba Indians; De Soto Expedition; Estatoe
Path; Pardo Expeditions; in The Encyclopedia of North Carolina, edited
by William S. Powell, University of North Carolina Press, Chapel Hill
2002 Catawba Valley Mississippian: Ceramics, Chronology, and
Catawba Indians. The University of Alabama Press, Tuscaloosa.
Moore, David G., Christopher B. Rodning, and Robin A. Beck--2017
Joara, Cuenca, and Fort San Juan: The Construction of Colonial
Identities at the Berry Site. In Forging Southeastern Identities:
Social Archaeology, Ethnohistory, and Folklore of the Mississippian to
Early Historic South, edited by Gregory A. Waselkov and Marvin T.
Smith, pp. 99-116. University of Alabama Press, Tuscaloosa.
Moore, David G., Robin A. Beck, Jr., and Christopher B. Rodning.--
2005 Afterward: Pardo, Joara, and Fort San Juan Revisited. In reissue
of The Juan Pardo Expeditions: Exploration of the Carolinas and
Tennessee, 1566-1568, by Charles M. Hudson. University of Alabama
2004 Joara and Fort San Juan: Culture Contact at the Edge of the
World. Antiquity Vol. 78, No. 299: March 2004 Project Gallery (on-line
Project Gallery: to view go to http://antiquity.ac.uk/ProjGall/moore/).
Oberg, Michael Leroy and David Moore--2017 Europeans in the
Indians' Old World. In New Voyages to Carolina: Reinterpreting North
Carolina History, edited by Larry Tice and Jeffrey Crow, pp. 41-59. The
University of North Carolina Press, Chapel Hill.
Rodning, Christopher B., Robin A. Beck, Jr., and David G. Moore--
2013 Conflict, Violence, and Warfare in La Florida. In Native and
Spanish New Worlds: Sixteenth-Century Entradas in the American
Southwest and Southeast, edited by Clay Mathers, Jeffrey M. Mitchem,
and Charles M. Haecker. University of Arizona Press, Tucson.
Rodning. Christopher B. and David G. Moore--2010 South Appalachian
Mississippian and Protohistoric Mortuary Practices in Southwestern
North Carolina. In Papers in Honor of Bennie C. Keel, edited by Edmond
A. Boudreaux, III, Christopher B. Rodning, and Jane Eastman.
Southeastern Archaeology 29(1):80-100.
*The remaining attachments have been retained in the Committee
The Chairman. Thank you, Chief.
STATEMENT OF HON. RON SUPPAH, COUNCIL MEMBER, CONFEDERATED
TRIBES OF WARM SPRINGS
Mr. Suppah. Good afternoon, Chairman Hoeven and other
Committee members. I am Ron Suppah, Tribal Council Member for
the Confederated Tribes of Warm Springs.
Today, the Committee is making history. This is the first
hearing that legislation to nullify a fraudulent treaty that
sought to deprive my Tribe of rights reserved in its original
treaty with the United States. I am personally honored to be
here, asking you to correct a historic wrong perpetuated
against the Warm Springs people.
In 1855, a treaty was negotiated and signed between my
ancestors and the Federal Government. Under the original
treaty, the Warm Springs and Wasco Tribes relinquished
approximately 10 million acres but reserved the Warm Springs
Reservation for their exclusive use. In the treaty, the Tribes
retained their rights to harvest fish, game and other foods off
the reservation at all places they had gone to since time
After 1855, the Tribes maintained their traditional
practice of traveling regularly to the Columbia River to
harvest salmon. The continued Indian presence at their usual
and accustomed fishing sites, however, irritated the non-Indian
settlers. This prompted then-Superintendent of Indian Affairs
for Oregon, J.S. Perit Huntington, to keep the Tribes away from
the settlers. In 1865, Huntington drew up a supplemental treaty
and convinced a handful of tribal members to sign it.
Accordingly to its terms, the treaty prohibits the Indians from
leaving the Warm Springs Reservation without the written
permission of the Government. The 1865 treaty also relinquished
all of the off-reservation rights so carefully negotiated by
the tribes 10 years earlier.
Yet, the historical records prove that the Indians of the
Warm Springs Reservation did not comply with the 1865 treaty
and did not understand its provisions. In fact, Government
records from the era show that Warm Springs people understood
that latter treaty as merely providing a pass system for
Indians, distinguishing them from hostile Indians, for their
own protection. The next Indian agent for the government wrote
to D.C. and reported that the 1865 treaty was not properly
interpreted to the Indians, and that they were led to believe
that their right to take fish hunt off-reservation was
protected in this second treaty supplement.
In 1884, the Warm Springs agent wrote that the supplement
treaty was ``beyond a doubt a forgery'' and that the Warm
Springs people were ``willfully and wickedly deceived by the
government.'' In 1886, another Federal Warm Springs agent
described the treaty this way: ``If ever a fraud was
villainously perpetuated on any set of people, red or white
this was one of the most glaring.''
In 1887, the Commissioner of Indian Affairs reported to the
Secretary of the Interior that the Warm Springs people were
cheated and swindled out of their right to fish by a cunning
and unprincipled U.S. official. These are the words of
representatives of American government assessing the fraud
perpetuated upon the Warm Springs Indians. My Tribe has never
recognized it, and the Federal Government never sought to
enforce it. Yet, as I testify here today, the 1865 treaty
remains on the books.
I believe that Senator Merkley had outlined a lot of some
of the other comments that I wished to make. But I think we've
been witnessing and watching this thing for 154 years. And all
that time, we have never relinquished our off-reservation
reserve rights. Today, I ask that the Committee support S. 832,
because I think it would right a wrong perpetuated by the
United States Government and it would be good for the Warm
Springs people to live under the correct treaty.
Thank you for the time, and I offer that if you guys have
any questions, I would answer those. Thank you.
[The prepared statement of Mr. Suppah follows:]
Prepared Statement of Hon. Ron Suppah, Council Member, Confederated
Tribes of Warm Springs
Mr. Chairman and members of the Committee, thank you for holding
today's hearing and inviting me to testify. Today the Committee is
making history--this is the first hearing on legislation to nullify a
fraudulent treaty that sought to deprive my tribe of rights it reserved
in its original treaty with the United States. I want to thank Senators
Merkley and Wyden, and Congressman Greg Walden for introducing this
legislation. I also recognize the late Senator Mark Hatfield and his
staff for their efforts to pass identical legislation in 1996.
I am personally honored to be here asking you to correct a historic
wrong perpetrated against the Warm Springs people.
On June 25, 1855 a treaty was negotiated and signed between my
tribe's Warm Springs and Wasco ancestors and the federal government,
who sought to clear the land of Indians for settlement. Under the
treaty, the Warm Springs and Wasco tribes relinquished approximately
ten million acres of land, but reserved the Warm Springs Reservation
for their exclusive use. Our land cession was one-sixth the current
size of the State of Oregon. In the treaty the tribes retained their
rights to harvest fish, game and other foods off the reservation in
their usual and accustomed places.
The 1855 treaty was ratified by the U.S. Senate on March 8, 1859--
just three weeks after Oregon entered the Union. Since that time the
1855 treaty has served as the primary agreement between the Warm
Springs Tribes and the U.S. government.
After the treaty signing, the tribes maintained their accustomed
practice of traveling regularly to the Columbia River to harvest
salmon. The continued presence of Indian people fishing along the
Columbia at their usual and accustomed fishing sites, however,
irritated the non-Indian settlers and prompted the then-Superintendent
of Indian Affairs for Oregon, J.W. Perit Huntington, to pursue efforts
to keep the Tribes away from the settlers.
To that end, Superintendent Huntington drew up a supplemental
treaty and, on November 15, 1865, convinced the tribes of the Warm
Springs Reservation to sign it. This treaty, called the Treaty with the
Middle Oregon Tribes of November 15, 1865, was ratified by the U.S.
Senate on March 2, 1867. According to its terms, the treaty prohibits
the Indians from leaving the Warm Springs Reservation without the
written permission of the Government and relinquishes all of the off-
reservation rights so carefully negotiated by the tribes as part of the
Yet, the historical record demonstrates that the Indians of the
Warm Springs Reservation neither complied with the 1865 treaty nor
understood its provisions. In fact, U.S. Department of Justice
affidavits taken from Warm Springs Indians present at both the 1855 and
1865 treaty signings show they understood the later treaty simply to
provide a pass system for Indians leaving the reservation to exercise
their off-reservation rights. They thought this merely distinguished
them from hostile Indians that were raiding the area at the time.
Almost immediately following the signing of the 1865 treaty, the
Indians from the Warm Springs Reservation continued to travel to the
Columbia River to fish from their historic fishing sites. Warm Springs
Agency agent John Smith wrote in his June 26, 1867, report to
Superintendent Huntington that ``as early as the 16th of May, 1866, the
Indians began to visit the salmon fisheries in large numbers.'' Reports
by Agent Smith in subsequent years further document continued fishing
on a substantial scale, and in a July 1, 1869, letter from Agent Smith
to Superintendent A.B. Meacham--who replaced Huntington on May 15,
1869--Smith noted ``the Indians said they did not understand the terms
of the  treaty'', that ``they claim that it was not properly
interpreted to them'', and that ``they were led to believe the right of
taking fish, hunting game, etc., would still be given them because
salmon was such an essential part of their subsistence.'' That same
year, in a September 18, 1869 report regarding the Warm Springs
Reservation to Superintendent Meacham, U.S. Army Captain W.M. Mitchell
``I also have to report, for the consideration of the proper
authorities, that the Indians unanimously disclaim any
knowledge whatever of having sold their right to the fishery at
The Dalles of the Columbia, as stated in the amended treaty of
1865, and express a desire to have a small delegation of their
head men visit their Great White Father in Washington, and to
him present their cause of complaint.''
Official U.S. Government reports in subsequent years continue to
note the Warm Springs Reservation Indian's strong objection to the 1865
treaty, their continued and uninterrupted reliance on their fisheries
on the Columbia River, and the fraudulent nature of the 1865 treaty
signing. In the annual report, dated August 15, 1884, Warm Springs
Agent Alonzo Gesner finds:
``on record what purports to be a supplementary treaty.which
is beyond a doubt a forgery on the part of the Government in so
far as it relates to the Indians ever relinquishing their right
to the fisheries on the Columbia River; and as a matter of
justice to the Indians, as well as to the Government, the
matter should be made right and satisfactory to the Indians as
soon as possible. . . .All the Indians say emphatically that
when the treaty was read to them no mention was made of their
giving up the right to fish. All that was said was that they
were to agree not to leave the reservation without getting
passes. . .The fact is they were willfully and wickedly
In 1886, Warm Springs Agent Jason Wheeler reported to the
Commissioner of the Indian Affairs in Washington, DC, regarding the
1865 treaty that ``if ever a fraud was villainously perpetrated on any
set of people, red or white, this was, in my opinion, certainly one of
the most glaring.'' In 1887, Commissioner of Indian Affairs J.D.C.
Atkins, in his annual report to the Secretary of the Interior, cited a
recent War Department report by Gen. John Gibbons that:
``called attention to the oft-repeated, and I may say very
generally credited, story of fraud in the treaty of 1865,
whereby the Warm Springs Indians were, it is claimed, cheated
out of their fishery by the Huntington treaty. . .Salmon, is
material and of grave importance to them. It is their principal
source of subsistence, and they never intended to part with it,
but were cheated and swindled out of it by a cunning and
unprincipled U.S. official. I would recommend your early
attention to the matter upon the convening of Congress.''
These are the words of representatives of the American Government
assessing this kind of a fraud perpetrated upon the Warm Spring Indians
in the 1870's and 1880's. Yet as I testify here today, the 1865 treaty
remains on the books. My tribe has never recognized it and the federal
government has never sought to enforce it.
Executive Branch support for original 1855 treaty rights
The Federal Government has vigorously pursued federal court
litigation affirming and enforcing the Tribe's original 1855 off-
reservation treaty rights. In United States v. Oregon, for example, the
U.S. Department of Justice prevailed in restraining agents of the State
of Oregon from restricting Warm Spring's off-reservation fishing
In a May 17, 1989 letter to then Oregon Congressman, Bob Smith, the
Acting Deputy Assistant Secretary of Interior for Indian Affairs wrote
that ``In the view of the federal court decisions confirming the
validity of the Warm Springs Tribe's 1855 Treaty rights, the 1865
agreement must be regarded as an historic anomaly which has no
practical or legal effects on the nature and extent of the Tribe's 1855
In addition, a November 25, 1997, letter from the U.S. Forest
Service Regional Director to the Warm Springs Tribal Council, affirmed
that the agency it would deal with the Tribe only on the basis of the
1855 Treaty's off-reservation rights and not the 1865 treaty. The
Forest Service letter enclosed an analysis it had performed, stating in
part: ``As a matter of policy, the Forest Service recognizes only the
Treaty With The Tribes Of Middle Oregon, 1855.''
No Federal Government agency has ever asserted that the 1865 treaty
was enforceable or had any legal effect.
State of Oregon rejection of 1865 treaty
The State of Oregon, like the Federal Government, has never
attempted to enforce the 1865 agreement despite the State's adverse
position to the Tribe in off-reservation treaty fishing rights
litigation. See, United States v. Oregon, supra. . In 2019, Oregon's
Governor issued a policy statement disavowing the 1865 agreement and
affirming the 1855 Treaty's off-reservation rights, stating ``it is the
policy of the Office of the Governor of the State of Oregon that the
fraudulent Huntington Treaty of 1865 is to be regarded as a nullity
with no effect whatsoever.''
Oregon's Attorney General has also issued a formal legal opinion
\1\ concluding that the 1865 treaty is unenforceable as a matter of
\1\ February 20, 2019 Oregon Attorney General Opinion No. 8295.
Effect of Nullification of the 1865 Treaty
Because the 1865 treaty has never been enforced, its nullification
would have no impact on the State of Oregon's rights or that of its
citizens. Instead, the legislation before you would at long last
correct a historic travesty. It would allow the Warm Springs Tribes to
continue to exercise their 1855 off-reservation fishing, hunting,
gathering and grazing rights without future fear of litigation or
As the late Senator Mark Hatfield said on the Senate floor in 1996,
this legislation will ``help the honor of the United States and dignity
of a long-wronged people.''
Thank you for allowing me to testify before the Committee today and
for your support of this historic legislation.
The Chairman. Thank you, Councilman.
We will turn to President Fire Thunder, of the Oglala
Lakota Nation Education Coalition.
STATEMENT OF CECELIA FIRE THUNDER, PRESIDENT, OGLALA LAKOTA
NATION EDUCATION COALITION
Ms. Fire Thunder. Good afternoon, Chairman Hoeven, Vice
Chairman Udall and members of the Committee. My name is Cecelia
Fire Thunder. I am a member of the Oglala Lakota Nation and
President of the Oglala Lakota Nation Education Coalition,
which represents six tribally controlled grant schools on the
Pine Ridge Reservation in South Dakota.
I am here to speak on S. 279, the Tribal School Federal
Insurance Parity Act. I also serve as a board member for Little
Wound School in Kyle, South Dakota.
The Federal Employee Health Benefits program is an employer
health insurance program administered by the Office of
Personnel Management. Federal employees have had a high level
of choice in finding a plan that fits their needs and budgets.
Premiums vary by plan, with up to 75 percent of the cost
covered by the Federal Government, and the remainder by the
We fully support S. 279 for immediate benefits and savings
for our schools. S. 279 would amend the Indian Health Care
Improvement Act to authorize tribal entities operating under
the Tribally Controlled Schools Act of 1988 to access Federal
employee health benefits.
This simple and clean legislative fix would directly
benefit our schools by allowing them to access lower health
insurance cost options as significant overall savings, savings
already provided by all other BIE system schools.
Six of the 13 schools located on the Pine Ridge Indian
Reservation are tribally controlled grant schools. Since their
founding in the 1970s, our tribal grant schools have provided
health insurance to all of our employees. Many of our schools,
however, struggle to cover the cost of health care insurance
premiums and deductibles. We also have trouble recruiting
highly qualified staff due to the cost of their benefits, which
is a really important component as a school to bring in more
highly qualified teachers.
Schools make up for the funding shortfall through the
diversion of Indian School Equalization Program, known as ISEP.
We use ISEP to cover health insurance and other program costs.
We reduce the amount of money available for teachers in
classrooms. This in turn directly affects education services
our children receive.
In 2012, our six schools applied to participate in FEHB.
Title IV of the Indian Health Care Improvement Act authorizes
tribal entities operating under ISDEAA to access FEHB. We
understood that we were able to join based on this description
of the law. However, the Interior Solicitor recommended to
Office of Personnel Management that we were ineligible, because
we have the authority to administer ISDEAA contracts or
compacts. However, we operate under the Tribally Controlled
Schools Act of 1988.
I want to remind the Committee and people in the audience
that even though we have two BIA schools, the BIA, administered
by the government, has access to all these programs, and we
don't, because we are under 694-437. For example, Little Wound
School, and in our presentation, we gave you graphs of costs,
premiums and deductibles. So Little Wound School today pays
$954.58 for single coverage with a $5,000 deductible. Doing the
research, under FEHB, Little Wound School will pay $464 and
$500 deductible. In our analysis of savings, Little Wound
School would save over $1 million just in reduced costs under
In conclusion, I would like to also point out that it is a
really good local economy benefit to have health insurance. So
in the last 48 seconds, I just want to share with you, I am
deaf. I have cochlear implants. In 2005, I underwent bilateral
surgery at the University of Iowa. Only because I have private
health insurance was I able to get into a top-notch clinic in
the United States to get a top-notch surgeon to drill into my
head and put implants in my cochlea so I could hear. That is
the benefit of private health insurance.
Our employees are also seeing how important it is, even
though we live on an Indian reservation and we have Indian
Health Service, private health insurance can also benefit
families that do not have the services, that our IHS does not
have the services that it can provide.
We appreciate your support in this bill. Thank you so much.
[The prepared statement of Ms. Fire Thunder follows:]
Prepared Statement of Cecelia Fire Thunder, President, Oglala Lakota
Nation Education Coalition
Introduction. Chairman Hoeven, Vice Chairman Udall and honorable
Members of the Senate Committee on Indian Affairs. My name is Cecelia
Firethunder, a member of the Oglala Lakota Nation and President of the
Oglala Lakota Nation Education Coalition (OLNEC). Thank you for this
opportunity to provide testimony on behalf of OLNEC, which represents
the six tribally controlled grant schools of the Oglala Sioux Tribe
located on the Pine Ridge Indian Reservation in South Dakota. The
Oglala Sioux Tribe and United States entered in the 1868 Treaty of Fort
Laramie that established the Federal Government's responsibilities to
provide for the education of our tribal youth. Our six tribally
controlled grant schools operate pursuant to the Tribally Controlled
Schools Act of 1988, Pub. L. 100-297 (TCSA), and the Indian Self
Determination and Education Assistance Act of 1975 (ISDEAA), as
amended, and are funded by the Bureau of Indian Education (BIE). Our
Tribal Council has authorized us to be responsible for the
administration and operation of tribal school functions. Members of
individual school boards are elected from the communities they serve.
Background on the FEHB Program. Federal Employee Health Benefits
(FEHB) is an employersponsored group health insurance program
administered by the Office of Personnel Management. Due to the
competitive nature of the FEHB program structure, employees have a high
level of choice in finding the plan that is appropriate for their
needs. Available features under different plans include health savings
accounts, family coverage, and catastrophic risk protection, among
others. Premiums vary depending on the plan type, with up to 75 percent
of the costs covered by the Federal Government and the remainder by the
OLNEC Fully Supports S. 279 for Immediate Benefits and Cost-Savings
for Our Schools. S. 279 would amend one line of the Indian Health Care
Improvement Act to specifically authorize Indian tribes and tribal
organizations operating under the Tribally Controlled Schools Act of
1988 to access FEHB. This simple and clean legislative fix would
directly benefit our schools by allowing them to access lower cost
insurance options for their employees at significant overall savings--a
benefit that is already provided at all other BIE system schools. S.
279's simple change to the law would provide tribally controlled grant
schools with an equal opportunity to access this critical program.
Demonstrated Need for FEHB Access at Tribally Controlled Grant
Schools. Six of the thirteen schools located on the Pine Ridge Indian
Reservation are tribally controlled grant schools: American Horse
School, Wounded Knee District School, Loneman Day School, Porcupine Day
School, Little Wound School, and Crazy Horse School. All of our schools
strive to provide high quality educational and support services to our
students. That effort, however, is severely complicated by years of
underfunding and under-resourcing within the BIE system.
All of our schools have provided health insurance for our employees
since the schools were established in the 1970s. Many of our schools,
however, struggle to cover the costs of high health insurance premiums
and deductibles. We also have trouble recruiting highly qualified staff
due to the costs of their benefits. Some schools are not able to
shoulder the financial burden. Others try to find ways to make up for
the shortfall, including through the diversion of Indian School
Equalization Program (ISEP) dollars. ISEP formula funds support
instructional services at BIE-funded elementary and secondary schools,
including tribally controlled grant schools. When we use ISEP funds to
cover the costs of health insurance and other programs, we reduce the
amount of available funds for teachers and curriculum needs in the
classroom. This, in turn, directly and adversely affects the
consistency and quality of the educational services our students
In 2012, our six tribally controlled grant schools applied to
participate in the FEHB program. Pursuant to Title IV of the Indian
Health Care Improvement Act, Indian tribes and tribal organizations
operating under the ISDEAA are entitled to purchase health insurance
coverage for their employees through the FEHB program. 25 U.S.C.
1647b. We understood that we were able to join based on this provision.
The Interior Solicitor and Office of Personnel Management, however,
determined that we were ineligible because though we have the authority
to administer ISDEAA contracts or compacts, we operate under the
Tribally Controlled Schools Act of 1988. We responded to the decision
with countervailing arguments that the TCSA specifically incorporated
several ISDEAA provisions that had the effect of enabling tribally
controlled grant schools to access FEHB. See 25 U.S.C. 2508(a).
Nonetheless, our reapplication was once again denied based on
Interior's and OPM's aforementioned position. Legislative action is
urgently needed to remedy this situation.
BIE-operated schools do not shoulder the same financial burdens as
tribally operated grant schools. Rather, BIE-operated schools are able
to fully participate in the FEHB program, with expanded benefits
packages for their employees and lower overall costs and deductibles.
BIE-operated and tribally controlled grant schools share the mission of
providing quality education opportunities for Native students to assist
them on the path of life-long learning and personal achievement. Both
serve the same Native student populations, recruit qualified academic
and administrative staff, and advance the interests of tribal
sovereignty and self-determination in education--all pursuant to the
authorization and funding of the Federal Government. Yet, only BIE-
operated schools are able to access the FEHB program with its
multifaceted benefits for employees and the schools alike. The result
is a shocking divergence in the amount of money that these two school
systems must invest to provide health insurance coverage for their
employees, as the following example illustrates:
Example: For a single employee, Little Wound School, one of
our tribally controlled grant schools, is able to offer a
healthcare package through Blue Cross Blue Shield of South
Dakota for a monthly cost to the school of $954 with a $5,000
deductible (Little Wound currently pays 100 percent of the
total costs). For an employee at a BIE-operated school such as
Pine Ridge School, the monthly cost to the school through the
FEHB program would be $348 with a $500 deductible (the total
monthly cost is $464 but the school covers 75 percent of that
expense at $348 per month). Access to FEHB would result in
annual savings of over $1,000,000 for Little Wound School--
money that could be used for educational services for students.
As the charts attached demonstrate, all six of our tribally
controlled grant schools are currently burdened with high premium and
deductible obligations. The substantial savings highlighted in the
example above would be replicated to varying degrees at all of our
schools if they had access to the FEHB program. These savings represent
funding for additional teachers, instruction materials, and classroom
aids to enhance our students' learning environment and experiences.
Critically, they also translate into additional money being available
per student without the need to appropriate new federal funds. Access
to FEHB would, thus, enable tribally controlled grant schools to
alleviate pressure on ISEP funding and diversify their insurance
options without tying up federal funds--a win-win situation. S. 279
provides this crucial access to FEHB.
Community Support for S. 279 FEHB Expansion. S. 279 would have
benefits not just for our OLNEC members, but for the over 100 tribally
controlled grant schools that operate across the country. We have
received copies of letters and resolutions of support from numerous
intertribal organizations and individual entities, including the
National Congress of American Indians; National Indian Health Board;
Great Plains Tribal Chairmen's Health Board; United Tribes of North
Dakota; Saint Stephens Indian School Education Association, Inc.; and
the Standing Rock Sioux Tribe. Copies of these letters are attached for
Conclusion. The Oglala Lakota Nation Education Coalition greatly
appreciates this opportunity to provide testimony in support of S. 279.
This simple, no cost legislative fix would effectuate manifold employee
and budgetary benefits for tribally controlled grant schools
nationwide. We ask that you swiftly consider and enact this important
bill. Wopila tanka; thank you.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
National Congress of American Indians
April 29, 2019
Hon. John Hoeven,
Hon. Tom Udall,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Re: Support for S. 279, the Tribal School Federal Insurance
Parity Act of 2019
Dear Chairman Hoeven and Vice-Chairman Udall:
I write on behalf of the National Congress of American Indians
(NCAI), the oldest and largest organization serving the interests of
American Indian and Alaska Native tribal nations and citizens, to
express NCAI's support for the immediate consideration and passage of
S. 279, the Tribal School Federal Insurance Parity Act.
Access to healthcare is a concern for all Americans--especially
within tribal communities. In 2010, Congress intended to improve
healthcare access by authorizing tribal nations utilizing Indian Self-
Determination and Education Assistance Act (ISDEAA) programs to
participate in the Federal Employee Health Benefit (FEHB) program.
Unfortunately, after consideration by the Department of the Interior
and Office Personnel Management (OPM), it was determined that Tribal
Grant School employees (25 U.S.C. Ch. 27) are ineligible for FEHB, even
though Tribal Grant Schools operate under the ISDEAA model.
Tribal Grant School employees should have access to FEHB. We thank
Senator John Thune for introducing S. 279. This legislation will ensure
Tribal Grant School employees have access to this vital program,
thereby improving prospects for recruiting and retaining excellent
teachers at tribal schools and reducing the healthcare costs of tribal
schools so that school resources can be appropriately focused on
Tribal nations have greatly appreciated the work of Congress to
ensure that the benefits of the FEHB program reach Indian Country. NCAI
urges the prompt passage of this legislation that is vital for Tribal
Grant School employees. We look forward to working with you.
National Indian Health Board
April 12, 2019
Hon. John Thune,
United States Senate,
Re: Support for the Tribal School Federal Insurance Parity
Dear Senator Thune,
I write today to express my support for S. 279, the Tribal School
Federal Insurance Parity Act. As you know, American Indians and Alaska
Natives (AI/ANs) face significant challenges in healthcare access and
coverage, and this legislation will make positive improvements towards
reducing the costs of health coverage for Tribal Schools while freeing
up funds for recruitment and retention of education-specific needs.
In recent years, the cost of health care has skyrocketed, straining
the limited budgets of Tribal Schools who have been forced to spend a
larger percentage of their education dollars on health insurance
coverage for employees. In fact, Tribal Grant Schools have reported
experiencing a 50 percent increase in health insurance premium rates
over the last few years. Since the 1988 passage of the Tribally-
Controlled Schools Act (P.L. 100-297), Tribes have been able to expand
their self-governance authorities and control over education and
schooling programs. There are currently 128 Tribal Grant Schools
nationwide, and 3 Tribal schools operating under self-determination
contracts as established under P.L. 93-638. However, these schools have
been restricted from receiving Federal Employee Health Benefits (FEHB)
and Federal Employees Group Life Insurance (FEGLI) eligibility. As a
result, they are forced to utilize portions of their education budgets
to cover these expenses.
By permitting Tribal Grant Schools to access FEHB and FEGLI
benefits, it frees up more of Tribes' education funding to be spent on
much-needed education supplies, recruitment of new teachers, and other
resource needs. It also honors the federal trust responsibility for
health services and furthers the government-to-government relationship
between Tribal Nations and the federal government.
Thank you for taking on this important issue by re-introducing the
Tribal School Federal Insurance Parity Act. This effort is an important
first step towards reducing Tribal health expenditures and improving
educational outcomes in Indian Country. Please know that NIHB is here
to offer any support or assistance you may need in moving this
legislation through Congress.
Yours in Health,
Victoria Kitcheyan, Chairperson
RESOLUTION NO. 19-102 OF THE OGLALA SIOUX TRIBAL COUNCIL OF THE OGLALA
SIOUX TRIBE SUPPORTING THE PASSAGE OF S. 279, THE TRIBAL SCHOOL FEDERAL
SCHOOL INSURANCE PARITY ACT, AND AUTHORIZES THE SUBMISSION OF A LETTER
OF SUPPORT ON BEHALF OF THE
OGLALA SIOUX TRIBE.
WHEREAS, the Oglala Sioux Tribe adopted its Constitution and ByLaws
by referendum vote on December 14, 1935, in accordance with Section 16
of the Indian Reorganization Act of 1934 (25 U.S.C. 5123), and under
Article III of the Constitution, the Oglala Sioux Tribal Council is the
governing body of the Oglala Sioux Tribe, and
WHEREAS, pursuant to the Constitution and By-laws of the Oglala
Sioux Tribe, the Oglala Sioux Tribal Council exercises legislative
powers to enact and promulgate resolutions and ordinances, and
WHEREAS, Article IV, Sections 1(f), 1(k), 1(m), 1(w) empower the
Tribal Council to manage the economic affairs of the Tribe, protect and
preserve the property of the Tribe, adopt laws governing the conduct of
persons on the Pine Ridge Indian Reservation, and adopt laws protecting
and promoting the health and general welfare of the Oglala Sioux Tribe
and its membership, and
WHEREAS, Article IV, Section 1(a) authorizes the Tribal Council to
negotiate with Federal, State, and local governments, on behalf of the
Tribe, and to advise and consult on behalf of the Tribe, and WHEREAS,
Senator Thune (R-SD) introduced S. 279, the Tribal School Federal
Insurance Parity Act, on January 30, 2019, and co-sponsored by Senator
Rounds (R-SD), and
WHEREAS, S. 279 is a tribal initiative that would amend Section 409
of the Indian Health Care Improvement Act to allow tribal grant
schools, including the six tribally controlled grant schools on the
Pine Ridge Indian Reservation, to participate in the Federal Employee
Health Benefits program, and
WHEREAS, Federal Employee Health Benefits and Federal Employees
Group Life Insurance provide comprehensive health care coverage and
group term life insurance, and access to these programs would result in
our schools paying substantially lower rates and bring savings that
would greatly benefit our schools, and
WHEREAS, the Oglala Sioux Tribal Council has determined that is in
the best interest of the Oglala Sioux Tribe to support the passage of
S. 279 and the written testimony submitted by Ms. Cecelia Fire Thunder
from OLNEC; now
THEREFORE BE IT RESOLVED, that the Oglala Sioux Tribal Council
hereby supports the passage of S. 279, the Tribal School Federal
Insurance Parity Act, and
BE IT FURTHER RESOLVED, that the Oglala Sioux Tribal Council hereby
authorizes and supports the submission of the attached letter in
support of S. 279 as well the written testimony submitted by Ms.
Cecelia Fire Thunder from OLNEC and requests that the Oglala Sioux
Tribe's letter of support to be included in the hearing record for S.
BE IT FURTHER RESOLVED, that the President or in his absence, the
Vice-President, is authorized and directed to sign this letter of
I, as the undersigned Secretary of the Oglala Sioux Tribal Council,
of the Oglala Sioux Tribe hereby certify that this Resolution was
adopted by a vote of: 18 For; 0 Against; 0 Abstain; and 0 Not Voting;
during a REGULAR SESSION held on the 1st day of MAY, 2019
Julian Bear Runner, President, Oglala Sioux Tribe
Office of the President
April 30, 2019
Hon. John Hoeven,
Hon. Tom Udall,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Re: Support for S. 279, the Tribal School Federal Insurance
Dear Chairman Hoeven and Vice Chairman Udall:
I am writing on behalf of the Oglala Sioux Tribe to thank you for
holding the May 1, 2019 hearing on S. 279, the Tribal School Federal
Insurance Parity Act. We strongly support this important bill and have
actively promoted its concept for years. The bill is a tribal
initiative: one borne from our desire for our tribally controlled grant
schools, which operate under the Tribally Controlled Schools Act of
1988, Pub. L. 100-297 (TCSA), and the Indian Self Determination and
Education Assistance Act of 1975 (ISDEAA), to save money on healthcare
benefits for their employees. Our Tribe has worked with and supported
the Oglala Lakota Nation Education Coalition (OLNEC) in the long effort
to realize what this bill will accomplish.
S. 279 would allow our six tribally controlled grant schools on our
Pine Ridge Indian Reservation to access Federal Employee Health
Benefits (FEHB) and Federal Employees Group Life Insurance (FEGLI).
FEHB is an employer-sponsored group health insurance program
administered by the Office of Personnel Management that provides
comprehensive health care coverage for federal employees, annuitants,
and their families and FEGLI provides group term life insurance.
Access to these federal programs would result in our schools paying
substantially lower rates for employee healthcare in the same manner
that Bureau of Indian Education schools currently do. This will bring
about significant savings for our tribally controlled grant schools,
which currently struggle to make ends meet, to the point of being
forced to use Indian School Equalization Program (ISEP) dollars to
cover myriad funding shortfalls. Our tribally controlled grant schools
will be able to use the savings that will be achieved from S.279 for
instructional services, teacher salaries and classroom amenities, all
toward improving the quality of our students' educations and enhancing
their school experiences. Our tribally controlled grant schools would
no longer be encumbered with the heavy financial burden of high health
care premiums for their employees.
We support the written testimony provided by Ms. Cecelia Fire
Thunder from OLNEC, and we refer you to that testimony for our tribally
controlled grant schools' specific health care costs. We note that such
testimony sets out that access to FEHB would save our Little Wound
School over $1 million. Please consider the good those dollars could do
for our tribal members' education.
Thank you again for holding this important hearing. I ask that this
letter be included in the hearing record.
We also express heartfelt thanks to Senators Thune and Rounds for
introducing S.279. We also thank Vice-Chairman Udall for cosponsoring
the bill. We call upon this Committee to move the bill forward and work
toward its enactment. It is a good bill: one that aligns with our 1868
Treaty of Fort Laramie that established the United States' obligations
to provide for the education of our tribal youth.
Julian Bear Runner, President, Oglala Sioux Tribe
The Chairman. That is impressive. Your hearing now seems to
be quite good. Remarkable.
We will start with rounds of questioning. Secretary
Tahsuda, according to the resolution passed in our State, we
have nine schools in my home State that can't participate in
the Federal Employee Health Benefits program. I want to confirm
that S. 279 would bring parity across all BIE schools, so that
every school employee would be eligible to receive Federal
Mr. Tahsuda. Thank you, Chairman. Yes.
The Chairman. Okay. S. 790 would authorize the Department
of Interior to take land into trust for a tribe in another
State for the purpose of gaming. Does the Department of
Interior support S. 790?
Mr. Tahsuda. Thank you, Chairman. I appreciate the
question. In general, I would say that the Department supports
the equal application of laws to federally-recognized tribes,
such as the Catawba Indian Nation. It is clear that the
benefits Congress intended for the Tribe through the settlement
act have not been realized. This has resulted in disparate
treatment for this Tribe, when compared to other federally-
We have offered some language suggestions, and if those are
made, as we suggested, we believe that Congress will not only
provide parity to the Tribe, so that it can finally realize
some of the promises made through the settlement act, but that
Congress will provide the Department with good clarity so that
we can meet our statutory and trust responsibilities for the
The Chairman. Does the Department consider S. 790 to be
Mr. Tahsuda. Thank you, Chairman. If you are asking whether
we would process the land acquisition specified in S. 790, as
drafted, as an off-reservation acquisition under our
regulations, the answer would be yes.
The Chairman. Does the Department consider this to be a
mandatory or discretionary trust land acquisition?
Mr. Tahsuda. Again, Chairman, as drafted, the Department
would process the land acquisition as a discretionary
acquisition. Again, in my testimony we made several technical
suggestions to better effectuate the intent of the bill. I
would note, as an additional suggestion, that a mandatory
acquisition would provide a more direct avenue for the
Department to take the land into trust for the Tribe.
Congressional intent expressed through legislation provides
us the record needed to take the land into trust, including
obviating the need to distinguish between on-reservation and
off-reservation. Without clear language provided by mandatory
acquisition language, the Department must develop an expensive
administrative record that can be time-consuming and expensive
not just for us, but for the tribe, and still leave the tribe,
in our decision, open to technical challenges and potential
The Chairman. Service areas are used for determining
housing, health care and law enforcement. Does the Department
of Interior believe that service areas should also be used to
determine whether land should be taken into trust for the
purpose of gaming?
Mr. Tahsuda. Thank you, Chairman. Again, a good question.
At the risk of trying to define congressional intent, I would
say that in the Department, we often view service areas as an
indication of congressional recognition of a specific tribe's
connection to a particular geographic area. However, unless the
statute specifies otherwise, we would still consider the
application for fee to trust in a service area to be
discretionary, off-reservation acquisition under Part 151 of
The Chairman. Chief Harris, in your testimony you stated
land taken into trust in North Carolina through this bill
complies with the Catawba 1993 settlement. Why doesn't the
Tribe pursue land into trust for the purpose of gaming on the
Catawba Reservation in the State of South Carolina?
Mr. Harris. Due to the 1993 settlement agreement, and the
restrictions that were imposed on us by the State of South
Carolina, we have tried to move forward in South Carolina and
have been turned down twice by the Supreme Court of South
Carolina. So we turned our attentions to North Carolina, as --
The Chairman. I am sorry, say the last part again. I
Mr. Harris. Where did you actually lose me?
The Chairman. Why not in South Carolina?
Mr. Harris. Okay, why not in South Carolina? We have been
restricted by the settlement agreement itself. When we first
signed it in 1993, there was gaming within the State of South
Carolina. We were entitled to have that gaming.
When South Carolina withdrew and stopped gaming, we weren't
allowed to have gaming, but they moved forward with riverboat
gaming, which goes out three miles into Federal waters and
games, but it's taxed by the South Carolina Department of
Revenue. When we took that issue back to the State Supreme
Court, we ended up in the South Carolina Supreme Court. The
reason they ruled against us was that is water, not land.
Therefore, you cannot game on your reservation.
The Chairman. The Eastern Band of Cherokee is another
federally-recognized tribe located in North Carolina.
Mr. Harris. Correct.
The Chairman. They conduct gaming. What outreach have you
made to address their concerns of having another gaming
operation in North Carolina?
Mr. Harris. We have spoken to three of the tribal leaders
of the Eastern Band of Cherokee, trying to get them to see if
we can enter into a partnership of some kind allowing us to
game within our service area. Currently, they are restricted by
their exclusivity zone within the State of North Carolina. So
they cannot game in Cleveland County. They are locked out of
that by their agreement.
The Chairman. They are locked out of what?
Mr. Harris. They are locked out of Cleveland County.
The Chairman. Why?
Mr. Harris. Because of the exclusivity zone they have with
the State of North Carolina.
The Chairman. Okay.
Mr. Harris. Everything they have is in, their gaming is
west of I-26. This location is east of I-26.
The Chairman. You have had a dialogue with them?
Mr. Harris. Yes, I have spoken with all three of their
leaders, over a seven-year period.
The Chairman. And where are they in terms of your
application in this legislation?
Mr. Harris. They are resistant to our application.
Actually, I think they have been to many of your offices, and
they oppose 790.
The Chairman. I may ask you more about this, but right now,
Vice Chair, do you want to go next?
Senator Udall. I will yield to Senator Cortez Masto.
The Chairman. Okay. Senator Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you, I appreciate that. Thank
you, Mr. Chair and Ranking Member.
Let me follow up on the conversation on 790. Just for the
record, I do support Senate Bills 279 and 832. Thank you for
I do have questions about S. 790. Let me just start with
Mr. Tahsuda. I understand in your recent analysis of 790 you
mention your concerns with the bill, but you do not make
mention of the provision in the bill that exempts this project
from Section 20 of the Indian Gaming Regulatory Act. Does the
Department have any concerns that the act itself and the
consultation process with the local stakeholders is taken out?
Do you have concerns about that waiver?
Mr. Tahsuda. Thank you, Senator Cortez Masto. The Section
20 provision of IGRA historically reflects Congress' intent to
restrict the discretionary authority of the Secretary to take
land into trust for gaming purposes outside of existing
reservations in 1998 or land that the tribe had in 1998, and to
ensure that as an exception to that general restriction that
there would be involvement by the non-tribal officials around
them, government officials around them.
Senator Cortez Masto. Including the governor?
Mr. Tahsuda. Yes, including the governor. Very importantly.
So in a bill like this in which Congress is taking action,
waiving Section 20 would be appropriate, I think, because it is
requiring the action of the two Senators in North Carolina who
have signed onto the bill indicating that Congress' original
concern that the Administration would act without having other
political involvement, that is not the case in this situation.
Senator Cortez Masto. If Section 20 were, if we did not
waive Section 20, it stayed in, would the Catawba Tribe be able
to move forward with what they are trying to do today?
Mr. Tahsuda. So if the bill as drafted----
Senator Cortez Masto. If Section 20 were there, would they
still comply under your consultation process that you would
have to undergo for Section 20?
Mr. Tahsuda. I believe we would then have to engage in the
discussion with the governor. We would go through our process,
as we did. So it's a two-part determination.
Senator Cortez Masto. And that has not happened at all. In
other words, there's a consultation process for you to engage
in under Section 20.
Mr. Tahsuda. Correct.
Senator Cortez Masto. Have you done that with respect to
the Catawba Tribe?
Mr. Tahsuda. Consulting with the Catawba Tribe?
Senator Cortez Masto. Have you engaged in the consultation
process under Section 20 that you are required to engage in for
purposes of what the Catawba Tribe is trying to do?
Mr. Tahsuda. We have not, Senator.
Senator Cortez Masto. Because of it being waived, is that
Mr. Tahsuda. I am sorry, no, let me distinguish that. The
Tribe has provided an application for that property through our
regular administrative process. But that is in the early
stages. Our administrative process is quite lengthy, as most of
you know, it takes us a long time to act on these issues.
Senator Cortez Masto. So the consultation process that
would be engaged in under Section 20 that you would be
responsible for has not occurred?
Mr. Tahsuda. Exactly. We are not at that stage.
Senator Cortez Masto. So you do not know, under that
process, whether they would comply or not comply with the
exceptions? In other words, what they are trying to do is put
casino gaming in North Carolina.
Mr. Tahsuda. Yes.
Senator Cortez Masto. And you have to engage in Section 20
to determine whether they are okay to do that off-reservation
gaming and you have to talk with the stakeholders, you have to
talk with the governor, you have to do a consultation to see if
they comply with the provisions of Section 20 or the exceptions
to be able to do that, correct?
Mr. Tahsuda. Yes, if I understand you correctly, Senator, I
would say yes. As drafted, it seems that the intent would be
for it to be a discretionary --
Senator Cortez Masto. I guess my point is this. Let me just
refer this. Why are we waiving Section 20? Because this can't
be done without waiver of it? In other words, why don't we keep
Section 20 in and let you go through your process?
Mr. Tahsuda. In my opinion, it would just add an additional
administrative hurdle. So by the action ----
Senator Cortez Masto. Every other tribe has to go through
that hurdle. So why would we waive that for them? That is what
I am trying to understand. What is the distinction here? Why
don't we allow them to go through that process like everyone
else? Because we're setting a bad precedent. How many other
tribes have we waived Section 20 for?
Mr. Tahsuda. Let me take a step back and maybe this will be
a better explanation. In the general course of considering an
off-reservation Section 20 two-part determination, that means
that the land is either not on the current reservation or it is
post-1988 land. The tribe then is not, is asking for land
outside of its sort of jurisdiction.
Senator Cortez Masto. Right.
Mr. Tahsuda. So we would go through an off-reservation
acquisition process, not related to the gaming, just in
general. Our fee-to-trust off-reservation acquisition process
requires an extensive discussion with the local community. We
consider effects on property tax rolls, jurisdictional
conflicts. Those are all things that we consider anyway. So
that would be part of the off-reservation acquisition process.
Then in addition to that, once that is completed, we would
go through a gaming analysis to determine whether the land
would be appropriate for gaming and that would be the two-part
determination, that would be the Secretary's part. We would
make the determination if it is appropriate for gaming. Then we
would ask the State, usually through the governor, to concur in
that. That is the second part of the two-part determination.
Senator Cortez Masto. So why don't we just go through that
Mr. Tahsuda. In this case, Congress has already, again, at
the risk of divining Congress' intent, it would seem that
Congress in 1993 determined that the Tribe had a strong
historical connection to the area that is called the service
area. So in the normal context, the Tribe is going outside of
somewhere that they had a connection --
Senator Cortez Masto. I am running out of time. Thank you.
You don't need to explain Congress' intent. I am just trying to
understand why the Department would support this if we haven't
even gone through the process yet, and is it a bad precedent
that we are setting here, and are we making something, carving
out something unique for a tribe that we wouldn't do any other
way. So that is my concern.
Thank you for the indulgence.
Senator Udall. [Presiding] If you have additional
questions, and you wanted to finish, that is all right. I know
you are getting close on your vote.
Senator Cortez Masto. I am, thank you.
So I do, actually. Let me just follow up then, and maybe
Chief Harris of the Catawba Tribe, have you had conversations
with any of the State leaders in North Carolina, or the
Mr. Harris. Yes, of course. We have letters of support from
the area we are talking to.
Senator Cortez Masto. Do you have a letter of support from
the governor of North Carolina?
Mr. Harris. Not the governor of North Carolina, no.
Senator Cortez Masto. Okay, and the governmental is
instrumental to, at least under Section 20 of the provision, to
get that support, is that correct, Mr. Tahsuda?
Mr. Tahsuda. If Section 20 were not waived, yes. Again,
every State has slightly different legal requirements as to who
gets to determine on behalf of the State, but usually it is the
Senator Cortez Masto. Well, I can tell you what I am
looking at in the Indian Gaming Regulatory Act, it is very
specific under Section 20 that it has to be the governor of the
State. And that is the rule that you would have to follow,
Mr. Tahsuda. That is the language of the act. However, each
State determines for itself who directs the governor to take
the action. In some States the governor has complete discretion
to say yes or no. In a lot of States, the Stage legislature
actually can restrict the governor's discretion to say yes or
Senator Cortez Masto. So you are telling me the State
legislature can restrict the governor under Federal law from
weighing in on this?
Mr. Tahsuda. Yes. That has been sort of the direction that
court cases have gone over the years.
Senator Cortez Masto. Wow. That is a new one on me. That is
interesting. I will have to look into that. I have never heard
that the State has the ability to come in and waive Federal law
or change Federal law in any manner whatsoever.
So thank you. I appreciate the indulgence.
Senator Udall. Thank you. Ms. Fire Thunder, in February
this year, I received a letter from the Santa Fe Indian School
that linked improvement recruitment and retention at BIE 297
schools with access to the Federal Employee Health Benefits
program. The letter said, ``Access to these benefits will
support us in our efforts to attract and retain the best
Ms. Fire Thunder, can you briefly explain how the Tribal
School Federal Insurance Parity Act will give 297 schools more
tools to tackle teacher shortages?
Ms. Fire Thunder. When we go recruiting, and we go to the
university campuses around our region to recruit, inevitably we
need to be able to offer non-tribal members who have the
background to come teach in our schools, like in any part of
the United States, a package that is not only salary, but has a
good health insurance package. This will also, we hope that
that is going to allow those who are undecided to come to our
schools, that this health insurance package will be an
inducement for them to consider to come work at our schools.
Senator Udall. Thank you for that answer.
Teacher recruitment and retention in Indian Country has
long been a concern of this Committee. In fact, at our last
Government Accountability Office high-risk hearing in March,
Senator Tester asked BIE Director Dearman if he had any data on
teacher vacancies at the Bureau. He didn't at the time, but he
promised to get back to the Committee.
Mr. Tahsuda, since then, has the Department been able to
determine the number of BIE teacher vacancies at direct service
Mr. Tahsuda. Senator Udall, let me make sure. Are you
asking about teacher vacancies that are directly operated
Senator Udall. Yes, that is correct.
Mr. Tahsuda. At the risk of being inaccurate, I would like
to get back to you with some direct numbers. We have been
working on a workforce plan. There is also, as you would guess,
in schools there is some fluctuation from year to year, as you
have fluctuations in student populations at different age
groups and you need different teachers. So sometimes we have
short-term shortages. We would like to get back to you, though,
with sort of the overall plan and where we are with that.
Senator Udall. Okay, and you will get back to us for the
record on that.
Mr. Tahsuda. Yes.
Senator Udall. Okay, great. And has the Department been
able to reach out to tribally-operated BIE schools to estimate
their teacher vacancy levels?
Mr. Tahsuda. I understand that is a work in progress.
Again, if I could get back to you, and we could at least give
you a status report of where we are with that. As you might
guess, that is less under our control and we are more dependent
upon the time and the resources that the tribes and the schools
have available to give us information as we ask for it. But we
will provide that to you as well as we can.
Senator Udall. Okay. Whether it is teacher vacancies,
causes of student absenteeism, or student outcomes, this
Committee's oversight efforts have been hindered by the lack of
good data housekeeping at BIE. The department must do a better
job of tracking BIE data. I hope you will take that message
back to Assistant Secretary Sweeney. I would like you to follow
up with Senator Tester and me about teacher vacancy data.
Ms. Fire Thunder, are there high teacher vacancy rates on
Ms. Fire Thunder. At Little Wound School, 100 percent of
our administrators are tribal members, our superintendent, our
high school principal, our middle school principal and our
elementary principal are all tribal members. We have Oglala
College on our reservation, they have done a bang-up job and we
work very closely with them as we begin to recruit high school
students now to consider teaching as a career. So we are doing
all kinds of things collectively, talking to each other, to
induce more of our tribal citizens to become teachers and to be
present in the classroom.
Senator, my big push is to try and get more men in the
classroom. At Little Wound School, we have three men in our
classrooms. At Loneman School, there are seven men in the
classroom. So we are working very diligently, collectively,
helping each other to fulfill that need. We really are looking
forward to creating that stronger partnership to get more of
our own tribal citizens into the classroom. I think we are
doing a pretty good job. Thank you.
Senator Udall. Would you agree that teacher shortages are a
problem facing all three types of BIE schools?
Ms. Fire Thunder. I agree teacher shortage is a problem not
only on Indian reservations, but across the United States. It
seems to be a conversation in the State of South Dakota as
well, of off-reservation schools that are not Indian schools.
The teacher shortage is a big challenge not only for us, but
Senator Udall. We have heard today that S. 279 will help
BIE 297 schools offer more competitive recruitment packages. As
I mentioned in my opening, I was glad to join Senator Tester
last month to reintroduce the Native Educator Support and
Training Act, another bill that would give Native schools more
teacher resources. I hope we can work together, the Chairman
and myself, to get both bills across the finish line soon.
Now, moving on to New Mexico, tribal issues in the Acoma
BIE 297 experience, Mr. Tahsuda, last year, Acoma Pueblo took
over operation of the Sky City Community School from the
Federal Government via a 297 BIE grant. But I understand that
the Pueblo's department of education experienced a number of
obstacles post-takeover, obstacles such as BIE did not leave
the tribe usable copies of student records of special education
files, BIE did not inform the tribe that 297 schools might be
ineligible to continue renting school buses from the GSA, and
the Pueblo found a number of student health and safety issues
related to the school facilities after it took charge of the
I want to make sure Acoma is getting proper and prompt
assistance from BIE on these issues. But I also want to make
sure communities that don't take over BIE direct service
schools via 297 grants don't encounter the same issues. It
seems to me that the BIE should have encountered and solved
these same problems before. This was by no means the first 297
Will you commit the Department to working with Acoma and my
staff to resolve the remaining issues with the 297 transition,
especially on the GSA buses problem?
Mr. Tahsuda. Thank you, Vice Chairman. Short answer yes,
obviously we will work with you as closely as we can. We can
look immediately into the question about the records. I would
be ashamed if that is what happened, but we will certainly look
The school bus rental issue was not one of our own making,
unfortunately, it was a GSA issue they raised with us. But I
believe we have, I think we have resolved that with them and
that it should not be a problem going forward. We will confirm
that for you, though.
So the question of facilities, this is a question that we
have across the board, obviously. Frankly, we probably, if we
had historically been able to keep up better with the
maintenance, et cetera, on our school facilities, we might have
more tribes that would be taking them over. But I do know that
we try to do our best to have the facility in the best
condition we can, given the budgets that we have, before we
turn them over to a tribe and they take it over.
I do know that it is actually a pretty in-depth discussion
and review that happens between the BIE staff, both locally at
the school and all the way up to the director's office, with
the tribe, the local community, et cetera. I know they work
with them often to make sure that they are going to have a very
involved parent committee, et cetera. We usually have ones with
our directly-operated schools. Sometimes when a tribe takes it
over there is a perception that we don't need that. But we work
hard with them.
So things like that, I know they work closely with them.
For Acoma in particular, again, if you could bear with me, we
will try to get more information and get back to you on that.
Senator Udall. Okay, thank you for that commitment.
Does the Department have a checklist or technical
assistance protocol for communities that want to take over BIE
direct service schools via 297 grants?
Mr. Tahsuda. Thank you, Senator. We do, we can provide that
to you. In fact, at your convenience, I will come with Director
Dearman and we can quickly go through the checklist and tell
you what the process is.
Senator Udall. Does that protocol or guidance anticipate
issues like those flagged by Acoma? And if not, why not?
Mr. Tahsuda. I would say that it should. Again, if we get a
chance to sit down with you, perhaps Director Dearman, who has
been involved with it, I have not personally been involved in a
transfer over, but he has. Maybe he can give a better
explanation in person.
Senator Udall. I look forward to that.
Chief Harris, the Committee just held a hearing on
community development in Indian Country. We examined the
different programs offered by the Federal Government to provide
access to capital to Indian Country. Can you tell the Committee
about the Tribe's economic development ventures and any
obstacles that you have faced in jump-starting your tribal
Mr. Harris. I think, if we start from the beginning, it was
the land mass itself. It is kind of hard to build an economic
development program on 1,000 acres when you are also housing
your own citizens on that acreage.
We currently have one employee who is not under a Federal
grant. It is a pumper truck business. So we have been greatly
restricted by the agreement, and hard to actually work with the
Federal Government on trying to get economic development for
the Catawba people.
Let me go back and address one things that Senator Cortez
Masto said, and that was the Section 20 provision. There is one
part of that provision that says that no lands taken after 1998
can be gamed on. So if you keep the provision in, then we are
asking 790 to take land into trust for the purpose of gaming.
So just remove it, and that way you won't have to deal with
Senator Udall. Yes. And John, you were answering questions
on that, too. Does that spark additional comment by you?
Mr. Tahsuda. Yes, Senator. To clarify, Senator, the bill is
intended to clarify and correct some provisions of the
settlement act that did not operate the way they were intended.
If you are going to do that, if Congress is going to act, it
would seem like you would want to do it in the most direct
manner possible, so that we have clear direction, we can take
action on behalf of the tribe, as seems to be the intend of the
bill, in the most direct way possible.
Senator Udall. Okay. Let's see here. Chief Harris, does the
Tribe own the land that is described in the bill?
Mr. Harris. We do not own the land. We have a power of
attorney over it, basically, where it is holding as we work our
way through this. If we end up with a piece of property, that
would be great.
Senator Udall. Who owns the land right now?
Mr. Harris. Right now it is shared, I guess, is the best
way to put it, between the owner and the nation.
Senator Udall. Who is the actual owner of the property
Mr. Harris. His name is Tester. John Tester, if you want
his name. Not that one there.
Senator Udall. Not that one.
Mr. Harris. It would be wonderful if it was, but it is not.
Senator Udall. You know, Tester has always wanted to be
rich. I know he hung out at the lunch with Senator Rockefeller.
People always asked him why he did, and he said he wanted him
to adopt him.
Mr. Harris. Maybe we can work something out on this end.
Senator Udall. Can you tell us on this John Tester, is he a
businessman and where does he reside?
Mr. Harris. He is a businessman, and he does reside in
Senator Udall. Okay, in North Carolina, which city?
Mr. Harris. Outside of Charlotte.
Senator Udall. Okay. Great. And if we need further
information on him?
Mr. Harris. I will be more than happy to provide any
Senator Udall. Great.
Mr. Tahsuda, since the tribe does not currently own the
land, how does this impact the Department's process for placing
the land into trust?
Senator Udall. Thank you, Senator. I guess in short it
doesn't affect the process much. We oftentimes, particularly in
economic development ventures, we get asked by the tribe to
consider taking the land into trust. It may be owned by a
business partner or somebody else. The actual process would be
rather than from the tribal ownership to Federal, in benefit
for tribal ownership, it would be from the other party to the
Untied States, but in benefit for the tribe. So it doesn't
really impact how we process it differently.
The only issues we have are to make sure that we have
access to follow through on our process, like NEPA, et cetera,
so that we can walk the property and do the physical things
that we have to do to process the application. That is the only
Senator Udall. To your knowledge, has the Department ever
taken land into trust for a parcel a tribe does not own?
Mr. Tahsuda. I believe we have done it many times. I don't
know if I can give you a number, but it is not unusual.
Senator Udall. Okay, and you could give us examples on
Mr. Tahsuda. Yes, sir.
Senator Udall. And Council Member Suppah, the supplemental
treaty has been in place since 1865. According to testimony
received by the Committee it appears both the governor of
Oregon and the Department have no objection to this treaty
being repealed. Since the 1865 supplemental treaty has been in
place, has your tribe been hindered by any of its requirements,
such as needing permission to leave the reservation from the
area superintendent of Indian Affairs, or if so, can you tell
the Committee some of those hindrances?
Mr. Suppah. Maybe the statement in the testimony, because
the 1865 treaty has never been enforced, its nullification will
have no impact on the State of Oregon's rights or that of its
citizens. The bill simply states that the 1865 treaty shall
have no force or effect. It would allow the Warm Springs Tribes
to continue to exercise their 1855 off-reservation rights
without future fear of litigation or extortion.
Senator Udall. Councilman, thank you very much for that
Mr. Harris, I noticed you were helped by your assistant
with something. Is there something you want to amend your
Mr. Harris. I will be honest with you, I am sitting here
and I have never done this before, so I am quite nervous.
Senator Udall. Well, we want you to be totally relaxed and
give us accurate answers. So you take your time.
Mr. Harris. Let me take a breath and go with this.
Senator Udall. Drink some water and just relax, take a
couple of breaths, that is fine. Don't worry.
Mr. Harris. Okay. So the word I was looking for was, the
tribe does have an option on the land, an agreement to sell.
That was the word I was looking for.
Senator Udall. So the tribe has an option.
Mr. Harris. Yes.
Senator Udall. But the tribe hasn't exercised its option,
so it has a legal option on the land owned by John Tester.
Mr. Harris. Correct.
Senator Udall. Not Senator Tester.
Mr. Harris. Not Senator Tester. Unless there is something I
Senator Udall. Yes. And he is a North Carolina citizen?
Mr. Harris. Yes, that is correct.
Senator Udall. Okay, well. Yes, please.
Ms. Fire Thunder. Thank you, Senator Udall. I just wanted
to introduce for the record a letter from my tribal president,
from the Oglala Sioux Tribe, supporting this legislation that
we were talking about. I am so excited and nervous, it has
taken us eight years to get here, Senator.
Senator Udall. Okay, we are allowing that into the record.
I don't like the idea of everybody being nervous here. I am
going to adjourn the hearing, but take a couple of breaths,
don't hurry. There are a lot of friendly people out behind you.
I am going to have to run for a vote. But I believe at this
point, from everyone that has come and gone, I am the only one
here, if there are no more questions for today, members may
also submit follow-up written questions for the record that may
go to all of you. The hearing record will be open for two weeks
to allow that.
I want to thank the witnesses for their time and testimony.
We really, really appreciate your testimony. Sorry to have to
run, but you don't have to run, you can take it slow, take a
breath. You will be fine. Cheers, take care.
The hearing is adjourned.
[Whereupon, at 3:45 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Ellen F. Rosenblum, Attorney General, Oregon
Department of Justice
This opinion responds to a question from Governor Kate Brown about
the off-reservation hunting rights of the Confederated Tribes of the
Warm Springs Reservation of Oregon (``the Tribe''). It focuses on
whether the Tribe's off-reservation hunting rights would be defined by
the Treaty with the Tribes of Middle Oregon of June 25, 1855 (``1855
Treaty'')-which reserved those rights-or by the Treaty with the Middle
Oregon Tribes of November 15, 1865 (``1865 Treaty'')-which on its face
Does the doctrine of issue preclusion bar the State from disputing
that the 1855 Treaty governs the Warm Springs Tribe's off-reservation
Yes. Issue preclusion would bar the State from litigating whether
the Tribe holds offreservation hunting rights based on the 1855 Treaty,
including from arguing that the 1865 Treaty relinquished those rights.
In U.S. v. Oregon, the State litigated, and lost, the issue of whether
the earlier 1855 Treaty governs the Tribe's off-reservation fishing
rights. The issue of whether the Tribe holds off-reservation hunting
rights based on the 1855 Treaty is substantially identical to the issue
earlier litigated. Therefore, the State would be precluded from
litigating that hunting-rights issue with the Tribe, and accordingly,
from arguing that the 1865 Treaty relinquished those rights.
Our analysis is specific to treaties, as opposed to generally
applicable laws. It is also specific to potential civil litigation
between the Tribe and the State construing the Tribe's offreservation
hunting rights. Issue preclusion is generally disfavored against the
government where the parties are not the same as in the earlier
litigation, or where preclusion would result in inequitable
administration of the law. Neither of those circumstances is present
here: the Tribe is the only entity whose off-reservation hunting and
fishing rights are addressed by the 1855 and 1865 treaties, and both
the Tribe and the State were parties to the earlier U.S. v. Oregon
As a practical matter, the Oregon Fish and Wildlife Commission
adopts the rules that are criminally enforced by law enforcement
officers in Oregon, and in turn by county District Attorneys. As a
state agency, the Commission is guided by this opinion. Accordingly,
any rules adopted by the Commission should be consistent with this
opinion. And, further, the criminal enforcement of the Commission's
rules should be consistent with this opinion.
This opinion does not address whether issue preclusion applies to
any other issue relevant to the Tribe's off-reservation hunting rights.
In 1855, the Tribe entered into a treaty with the federal
government that ceded the Tribe's territorial interests in exchange for
consideration that included a reservation and monetary compensation.
\1\ The Tribe also reserved certain off-reservation hunting and fishing
rights: the right to take fish ``at all other usual and accustomed
stations, in common with citizens of the United States,'' as well as
``the privilege of hunting* * *on unclaimed lands, in common with
citizens. `` \2\
\1\ Treaty with the Tribes of Middle Oregon, June 25, 1855, 12 Stat
\2\ Id. at 964.
However, the later 1865 Treaty ostensibly relinquished those same
off-reservation hunting and fishing rights. \3\ The 1865 Treaty
contained other unfavorable terms, such as restricting the Tribe to its
reservation absent written permission from the federal superintendent
of Indian affairs. \4\ Examining these terms and the historical record,
a United States Forest Service study later concluded that the tribal
leaders' signatures were obtained by fraudulent means. \5\ Despite
these circumstances, this opinion focuses only on whether the State
would be precluded from asserting the 1865 Treaty. It therefore does
not address the validity of the 1865 Treaty.
\3\ Treaty with the Middle Oregon Tribes, Nov 15, 1865, 14 Stat
751, 751 (1867) (``[I]t is hereby stipulated and agreed that * * *
the right to take fish [and] hunt game * * * upon lands without the
reservation* * * are hereby relinquished.'').
\4\ Id. at 751-52.
\5\ Les McConnell, USDA Forest Service-Pacific Northwest Region,
The Off-Reservation Treaty Reserved Rights of the Tribes of Middle
Oregon 2 (June 20, 1997).
In 1968, the Tribe and the State litigated the Tribe's off-
reservation fishing rights in U.S. v. Oregon in federal district court
in Oregon. \6\ The Tribe contended that the State could restrict the
Tribe's off-reservation fishing only in certain circumstances. \7\ The
State, on the other hand, argued that it could regulate the Tribe's
fishing to the same extent as it could regulate the fishing of other
persons. \8\ The primary issue in dispute was how to interpret the
wording of the 1855 Treaty that reserved to the Tribe rights ``in
common with citizens of the United States.'' \9\ However, the State
also attacked the relevance of the 1855 Treaty. The State argued that
the Tribe's off-reservation fishing rights had been modified by
Oregon's admission to the union and then by the 1918 Columbia River
\6\ See Sohappy v. Smith, 302 F Supp 899,903-04 (D Or 1969). The
United States government and several other tribes also were parties to
the litigation against the State; however, those parties are not
relevant to our discussion here.
\7\ Id. at 907.
\9\ See Id. at 904-05.
\10\ Id. at 912. The compact between Oregon and Washington governs
the regulation, preservation, and protection offish in the Columbia
River. ORS 507.010.
The court ruled for the Tribe, noting that the United States
Supreme Court had interpreted similar treaties to permit fishing
regulations only if they were necessary for the conservation of fish,
met appropriate standards, and did not discriminate against the Tribe.
\11\ The court rejected the State's arguments that the Tribe's off-
reservation fishing rights had been altered by Oregon's admission to
the Union or by congressional approval of the 1918 Columbia River
\11\ Sohappy, 302 F Supp at 906-07; Judgment at 2-3, United States
v. Oregon, No 68-513 (D Or Oct 10, 1969). After the district court
issued its judgment, it retained jurisdiction and ``became the forum
for allocating the harvest offish that enter the Columbia River
System.'' United States v. Oregon, 913 F2d 576, 579 (9th Cir 1990).
That substantial subsequent history does not affect our analysis here.
\12\ Sohappy, 302 F Supp at 912.
Although the court's judgment in U.S. v. Oregon construed the
Tribe's off-reservation fishing rights, it did not address the Tribe's
off-reservation hunting rights--rights that were reserved by the same
1855 Treaty. The governor has asked us whether any issue resolved by
that judgment would preclude the State from arguing in potential
litigation with the Tribe that the 1865 Treaty relinquished those off-
reservation hunting rights.
II. Issue Preclusion Standard
Issue preclusion ``bars the relitigation of issues actually
adjudicated in previous litigation between the same parties.'' \13\
This ``protect[ s] litigants from the burden of relitigating an
identical issue with the same party [and] pro mot[ es] judicial economy
by preventing needless litigation.'' \14\ Three elements must be
satisfied in order for issue preclusion to apply:
\13\ Clark v. Bear Stearns & Co., Inc., 966 F2d 1318, 1320 (9th Cir
1992). Because the preclusive issue involved here was resolved by a
federal district court in litigation based on a federal question, we
look to federal common law. See Taylor v. Sturgell, 553 US 880, 891,
128 S Ct 2161, 171 LEd 2d 155 (2008) (``The preclusive effect of a
federal-court judgment is determined by federal common law.'').
\14\ Parklane Hosiery Co., Inc. v. Shore, 439 US 322, 326, 99 S Ct
645, 58 LEd 2d 552 (1979).
(1) the issue at stake must be identical to the one alleged in
the prior litigation;
(2) the issue must have been actually litigated in the prior
litigation; and (3) the determination of the issue in the prior
litigation must have been a critical and necessary part of the
judgment in the earlier action. \15\
\15\ Clark, 966 F2d at 1320. Issue preclusion does not apply when
the party ``did not have a 'full and fair opportunity' to litigate''
the issue in the earlier litigation. Allen v. McCurry, 449 US 90, 95,
101 S Ct 411, 66 LEd 2d 308 (1980). Nothing in the record available to
us suggests that the State did not have that opportunity in U.S. v.
The relevant issue does not necessarily have to be expressly
mentioned in the prior litigation: ``[n]ecessary inferences from the
judgment, pleadings and evidence will be given preclusive effect.''
\16\ Davis & Cox v. Summa Corp., 751 F2d 1507, 1518 (9th Cir 1985).
The Ninth Circuit Court of Appeals has recognized that properly
defining the relevant issues can be a ``murky area.'' \17\ To resolve
close cases, that court looks to four factors from the Restatement
(Second) of Judgments:
\17\ Starker v. United States, 602 F2d 1341, 1344 (9th Cir 1979).
(1) is there a substantial overlap between the evidence or
argument to be advanced in the second proceeding and that
advanced in the first? (2) does the new evidence or argument
involve application of the same rule of law as that involved in
the prior proceeding? (3) could pretrial preparation and
discovery relating to the matter presented in the first action
reasonably be expected to have embraced the matter sought to be
presented in the second? (4) how closely related are the claims
involved in the two proceedings? \18\
\18\ See Kamilche Co. v. United States, 53 F3d 1059, 1062 (9th Cir
1995) (quoting Restatement (Second) of Judgments 27 cmt c (1982)),
amended by 75 F3d 1391 (9th Cir 1996).
These factors ``are not applied mechanistically.'' \19\ They seek
to balance ``a desire not to deprive a litigant of an adequate day in
court'' against ``a desire to prevent repetitious litigation of what is
essentially the same dispute. `` \20\
\19\ Howard v. City of Coos Bay, 871 F3d 1032, 1041 (9th Cir 2017)
\20\ Restatement 27 cmt c.
Although issue preclusion typically applies when both the parties
in the subsequent suit are identical, it can also apply where the party
asserting preclusion was not involved in the earlier suit. \21\
However, the United States Supreme Court has been skeptical of applying
this nonmutual issue preclusion when the party defending against
preclusion is the federal government. \22\ And federal appellate courts
have applied the same reasoning to state governments defending against
preclusion. \23\ Applying nonmutual issue preclusion against the
government in the criminal context is also disfavored. \24\
\21\ Parklane, 439 US at 331-32.
\22\ United States v. Mendoza, 464 US 154, 162-63, 104 S Ct 568, 78
LEd 2d 379 (1984) (distinguishing the conduct of government litigation
from the conduct of private civil litigation).
\23\ Idaho Potato Comm'n v. G & T Terminal Packaging, Inc., 425 F3d
708, 713-14 (9th Cir 2005) (applying Mendoza reasoning to protect state
agency from nonmutual issue preclusion); Hercules Carriers, Inc. v.
Claimant State of Fla., 768 F2d 1558, 1579 (11th Cir 1985) (recognizing
that Mendoza reasoning applies to state governments as well).
\24\ Standefer v. United States, 447 US 10,21-25, 100 S Ct 1999, 64
LEd 2d 689 (1980).
Similar concerns underlie the exception that issue preclusion will
not apply if it would result in the inequitable administration of the
law. \25\ This exception typically disfavors applying issue preclusion
against governments that are enforcing generally applicable laws, that
is, laws ``that affect members of the public generally.'' \26\
Allowing issue preclusion in such cases could ``give one person a
favored position in current administration of a law.'' \27\
\25\ Restatement 28(2).
\26\ Id. 28 cmt c.
III. Issue Preclusion Analysis
The court's judgment in U.S. v. Oregon construed the Tribe's off-
reservation fishing rights to allow State regulation only in certain
circumstances. \28\ The judgment and the court's opinion make clear
that to reach this result, the court necessarily determined that the
Tribe holds offreservation fishing rights based on the 1855 Treaty. For
example, the court repeatedly stated that its reasoning was based on
precedent concerning regulation of federal treaty rights. \29\ And the
only treaty before the court that could have been the source of the
Tribe's rights was the 1855 Treaty. \30\
\28\ Judgment at 2-3, U.S. v. Oregon, No 68-513.
\29\ Sohappy, 302 F Supp at 906 (relying on Supreme Court case that
``restated the nature of the non-exclusive off-reservation fishing
rights secured by these Indian treaties''); id. at 908 (``I believe
that these contentions of the plaintiffs and the tribes correctly state
the law applicable to state regulation of the Indians' federal treaty
right.''). The judgment repeatedly referred to treaties, treaty tribes,
treaty fishing, and treaty fisheries. Judgment at 2-3, U.S. v. Oregon,
\30\ See Sohappy, 302 F Supp at 904.
In addition, the parties actually litigated this fishing-rights
issue: the State argued that any 1855 Treaty off-reservation fishing
rights were altered both by Oregon's admission to the union and by
congressional approval of the 1918 Columbia River Compact. \31\
\31\ Id. at 912.
U.S. v. Oregon focused only on the Tribe's off-reservation fishing
rights, not on off-reservation hunting rights. However, the Ninth
Circuit has recognized that in narrow circumstances, issues pertaining
to different rights may be so similar as to allow issue preclusion. For
example, in Kamilche Co. v. United States, the court held that the
federal government was precluded from litigating the ownership of a
disputed parcel of land, even though the specific acres at issue had
not been at issue in the earlier suit. \32\ The court applied the
Restatement factors discussed above, emphasizing that the evidence and
arguments necessary to prove ownership of the earlier-litigated acres
were identical to the evidence and arguments necessary to prove
ownership of the subsequently litigated acres. \33\
\32\ 53 F3d at 1062-63.
\33\ Id. at 1062.
We see a similarly close connection here between the issues of
whether the Tribe holds off-reservation hunting rights based on the
1855 Treaty and whether the tribe holds offreservation fishing rights
based on that treaty. \34\ Both these rights were reserved by the Tribe
in the same clause in the 1855 Treaty. \35\ And the U.S. v. Oregon
court relied on evidence concerning both: For example, the court noted
that during negotiations over the 1855 Treaty, ``the tribal leaders
expressed great concern over their right to continue to resort to their
fishing places and hunting grounds.'' \36\ The court added that the
leaders ``were reluctant to sign the treaties until given assurances
that they could continue to go to such places and take fish and game
\34\ Our conclusion--that the issues surrounding whether the Tribe
holds off-reservation fishing and hunting treaty rights are identical--
does not mean that every issue concerning fishing rights is the same as
every issue concerning hunting rights. As an illustrative example, the
geographic scope of the tribe's off-reservation fishing rights is not
coterminous with the geographic scope of its off-reservation hunting
rights. See 1855 Treaty, 12 Stat at 964 (reserving the right to take
fish at ``usual and accustomed stations,'' while reserving the right to
hunt ``on unclaimed lands'').
\36\ Sohappy, 302 F Supp at 906 (emphasis added).
\37\ Id. (emphasis added).
Because of these similarities, the evidence and arguments necessary
to prove that the Tribe holds off-reservation hunting rights based on
the 1855 Treaty would substantially overlap with the evidence and
arguments in U.S. v. Oregon. For example, in the potential hunting-
rights litigation, the Tribe would likely point to the text of the 1855
Treaty as having reserved those rights, and to the historical
circumstances surrounding the negotiation of those rights. The Tribe
would also argue that Oregon's admission to the union did not modify
In addition, we see nothing to indicate that the legal analysis
relevant to determining whether the Tribe reserved off-reservation
hunting rights in the 1855 Treaty would differ from the analysis in
U.S. v. Oregon. Or that the legal analysis relevant to the effect of
Oregon's admission to the union on those hunting rights would differ
from the analysis in the earlier matter.
The above similarities also indicate that litigating whether the
Tribe holds off-reservation hunting rights based on the 1855 Treaty
would be essentially the same dispute as was resolved earlier in U.S.
v. Oregon. Applying issue preclusion would therefore serve the
underlying goals of increasing judicial economy and not unnecessarily
burdening prevailing parties.
Because the identical issue was actually litigated in U.S. v.
Oregon, and was critical and necessary to the court's judgment, the
State would therefore be precluded from litigating with the Tribe the
issue of whether the 1855 Treaty controls the Tribe's off-reservation
hunting rights. That conclusion would also preclude the State from
making any legal arguments inconsistent with the court's resolution of
the issue. \38\ Accordingly, the State would be precluded from arguing
that the 1865 Treaty relinquished the Tribe's off-reservation hunting
\38\ See Kamilche, 53 F3d at 1063 (``[O]nce an issue is raised and
determined, it is the entire issue that is precluded, not just the
particular arguments raised in support of it in the first case.''
(Italics in original; internal quotation marks omitted.)).
Essential to our reasoning is that there are no arguments unique to
off-reservation hunting rights--as distinct from off-reservation
fishing rights--that indicate those rights were relinquished or
modified. The existence of such arguments would likely mean that the
State did not have a full and fair opportunity to litigate the issue in
U.S. v. Oregon. \39\
\39\ See Maciel v. Comm'r, 489 F3d 1018, 1023 (9th Cir 2007) (issue
preclusion does not apply when a party ``had good reason not to contest
an issue vigorously during the first action''). The existence of unique
arguments might also suggest that the relevant issues are not
Furthermore, none of the concerns exist here with applying
preclusion against a government. First, we are dealing with mutual
issue preclusion because the State and the Tribe were both parties to
U.S. v. Oregon. This eliminates the concerns with applying nonmutual
issue preclusion. And second, preclusion will not result in the
inequitable administration of the law because the 1855 and 1865
treaties are not generally applicable laws: the Tribe is the only
entity whose off-reservation hunting and fishing rights are addressed
by these treaties.
Kate Brown, Governor, State of Utah
Chairman Austin Greene, Jr. and Members of the Tribal Council,
Confederated Tribes of Warm Springs,
Warm Springs, OR.
Re: Policy of my administration regarding the 1865
Dear Chairman Greene and Honorable Members of the Tribal Council of the
Confederated Tribes of Warm Springs:
I write to state my position, and the position of my
administration, on the document known as the Huntington Treaty of 1865.
The Oregon Department of Justice once described this document to
the Oregon Court of Appeals as a ``historical curiosity ... that has
never been enforced.'' I have concluded that it was induced through
fraudulent and dishonorable means and represents, as the late Senator
Mark O. Hatfield eloquently stated on the floor of the United States
Senate in 1996, a ``historical travesty.'' It is unimaginable that the
proud and independent Tribes of Middle Oregon who signed the Treaty of
June 25, 1855, and insisted on language in that Treaty reserving their
sovereign rights to fish, hunt, and gather traditional foods, would
have knowingly surrendered those rights for virtually nothing just ten
years later and agreed to the indignity of needing the Federal
Government's written consent to leave the reservation.
Accordingly, by this letter to you, the governing body of the
Confederated Tribes of the Warm Springs Reservation of Oregon, I
declare it the policy of the Office of the Governor of the State of
Oregon that the fraudulent Huntington Treaty of 1865 is to be regarded
as a nullity with no effect whosoever. It shall be the policy of the
Office of the Governor, so long as I am the Governor of Oregon, that no
state agency or official under my authority shall assert on behalf of
the State that the fraudulent Huntington Treaty of 1865 has now, or
ever has had, any legal effect whatsoever.
In pursuit of this policy, I further pledge that I will devote the
resources of my office, as Governor of Oregon, to work together with
you to secure appropriate congressional action that will unequivocally,
for once and for all time, rescind and nullify the historical injustice
of the--Huntington Treaty of 1865.
Thank you for your attention to this important matter.
Governor Kate Brown
American Gaming Association
May 1, 2019
Hon. John Hoeven,
Hon. Tom Udall,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the American Gaming Association (AGA), I appreciate
the opportunity to comment on S. 790, a bill to clarify certain
provisions of Public Law 103-116, the Catawba Indian Tribe of South
Carolina land Settlement Act of 1993, and for other purposes.
In recent years, AGA has expanded its membership to be more
reflective of the U.S. gaming industry, and now includes gaming
suppliers and tribal gaming operators. In line with AGA's membership
evolution, we have also modernized our position regarding off-
reservation tribal gaming. In the past, AGA opposed all efforts to open
off-reservation gaming facilities. After lengthy and open discussions
with our membership, we have modified this position and recognize the
Indian Gaming Regulatory Act (IGRA) specifically contains exceptions.
However, our membership continues to have significant concerns about
tribes attempting to locate new facilities far from their homelands
simply to increase their potential profit. Accordingly, AGA believes a
Tribe should be required to have both historic and geographic
connections to the land they are acquiring for off-reservation gaming.
While AGA is not in a position to serve as the arbiter of competing
assertions related to fact patterns surrounding tribal land claims, we
strongly recommend the Committee ensure both of these important
criteria are met as you consider S. 790.
AGA also supports policies that strengthen process transparency and
clear bright-line standards to ensure marketplace certainty. AGA,
therefore, has concerns that S. 790 would explicitly remove the
application of section 20 of IGRA to the land authorized to be taken
into trust under the bill. Circumventing the bright line standards
established by IGRA creates a precedent that runs counter to our
overarching goal of ensuring a consistent and transparent process
surrounding off-reservation gaming determinations. We respectfully urge
the Committee to strike this exception if the legislation is considered
William C. Miller, Jr.
Keith Miller, City Councilmember At-large City of Kings
May 3, 2019
Hon. John Hoeven,
Hon. Tom Udall,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Dear Chairman Hoeven and Vice Chairman Udall:
I am writing to you regarding the S. 790--A bill to clarify certain
provisions of Public Law 103.116, the Catawba Indian Tribe of South
Carolina Land Claims Settlement Act of 1993 (The '93 Act). Please
include this correspondence in the open record to the committee's
consideration of S. 790.
May it please be it made known to the honorable members of the
I am among the current majority of The City of Kings
Mountain City Council, 4 of 7 members, who are in opposition to
the approval of t he Catawba's application, has sent letters of
opposition and made in person visits to the Bureau of Indian
Affairs (BIA) and Department of Interiors (DOl) expressing
opposition to approval of the Tribe's application, and I oppose
the referral/recommendation of S. 790.
75 area pastors signed a letter opposing the proposed
102 of 111 Cleveland County, NC pastors surveyed indicated
``a gambling casino in Kings Mountain would be bad.''
Over 1,000 community residents have signed a petition
expressing opposition to the proposed casino.
May it also be made known to the honorable members of the committee
that The Catawba Indian Nation was to be paid $50 million under the '93
Act and agreed to the conditions listed below, which may not be
corrected or addressed by S. 790, and, moreover, S. 790 may be
1. The '93 Act may be amended for only four reasons and
casinos may not one of the four, US Code, Title 25, subchapter
43A 941 m (f); SC MOU 19.5. If S. 790 is in effect and
amendment of the '93 Act and not consistent with 25 USC 43A
941m(f) then there may be a basis for legal challenges to S.
2. The time limit to purchase land for reservation purposes
(casinos) may have expired in 2008, USC 25 43A 941j (k); SC
MOU 14.14. \1\
\1\ We visited with BIA staff challenging the veracity/accuracy of
certain claims made in the affidavit filed on behalf of Chief Harris
with respect to this point. At that time no verification by BIA/DOI of
the affidavit claims had been attempted.
3. BIA procedures and IGRA laws are non-applicable for Catawba
land acquisitions and reservation status, USC Title 25,
subchapter 43A 941 j (m), I (a); SC MOU 14.16.
4. The '93 Act extinguishes & bars future claims, USC 25,
subchapter 43A 941 d (c), (d), (e), SC 27-16-60; MOU 6
5. Land in NC is outside of the Primary and Secondary
Reservation areas, US Code, Title 25, subchapter 43A 941 j
(c) (1), (c) (2); SC 27-16-90 (E); SC MOU 14.3, 14.4, 14.5.
6. The SC Governor, SC general assembly and the county council
all need to approve expansions of noncontiguous reservation
area, which may make NC acquisitions constitutionally
impossible under the '93 Act, US Code, Title 25, 43A 941 j
(b); SC 27-16-90 (B) (1) (b), (b) (2), (b) (3), (E): SC MOU
14.2 and 14.5.
7. SC law governs all gambling on all property owned by the
Tribe, including land placed into Trust by BIA/DOI, and SC law
currently prohibits casinos and creates an unconstitutional
situation where SC law will govern activity in NC, US Code,
Title 25, subchapter 43A 9411 (b); SC 27-16-110; SC MOU
8. SC state and York County, SC codes & ordinances apply to all
future Catawba development making a NC casino regulated by SC
constitutionally impossible. SC 27-16-120 et al; SC MOU 17.
9. Use of eminent domain (mandatory takings) is expressly
prohibited, USC 25 43A 941j(e)(l); SC27-16-90 (H); MOU 14.8.
Note, the '93 Act incorporates the SC law and the MOU to
Federal status as part of the '93 Act.
Below I discuss some of my economic, political, spiritual, and
constitutional concerns with the proposed casino project. I also
suggest new regulations to protect vulnerable families from financial
harms created by over indulging in gambling.
Carcieri. The SCOTUS Carcieri decision limited Indian Gaming
Regulatory Act (IGRA) land into trust applications to only those Tribes
who were federally recognized before 1934. The Catawba Nation was not
federally recognized until1993. Are we ignoring Carcieri here? Do we
want to open a floodgate of new tribal recognitions and federal land
and jurisdiction grabs leading to a flood of new casinos nationwide?
Loss of manufacturing jobs. At a trade show I asked a national
economic development recruiter about his experience with manufacturers'
attitudes about sites near casinos. He told me about an executive that
wanted to visit the proposed industrial sites at night. Standing there
in the dark the recruiter asked the executive what he was looking to
see. The executive said, ``casino lights''. I think he may not have
wanted to locate a plant too close to a casino. The executive may have
thought casinos increased the risks of shrinkage (employee theft),
truancy, reduced productivity due to workers distracted by family
financial strains from gambling losses, and corporate theft or
espionage by executives who became indebted from gambling or
compromised in prostitution, who then steal corporate intellectual
property to pay debts or blackmailers. Our city has invested millions
of dollars in our utility infrastructure, branding, site readiness and
intragovernmental and community partnerships to enhance our capacity to
attract and retain manufacturing jobs. I am concerned the casino may
reverse our trend of expanding the number of manufacturing jobs. The
casino may produce thousands of service jobs but may do so at a cost of
hundreds of manufacturing jobs. Especially if the local government and
utility boards become corrupted by casino shills that impair utilities
to the point that manufacturers leave.
Demonic Footholds and strongholds. I am concerned that the regular
flow of men freely spending copious amounts of cash may attract a
larger underground market for drugs, prostitution and pedophilia. This,
in turn, may also attract more demons, wicked spirits and fallen
angels. I do not want these dark material and spiritual influences to
gain larger footholds or strongholds in our community. I encourage
continued discussion with casino supporters to plan for on-site
chaplaincy staff, trained in deliverance and spiritual warfare. I also
encourage discussion with architects to include design elements known
to be irritants to demons.
Stumbling blocks. There may be 12 Bible passages telling us not to
create stumbling blocks for our weaker brothers and sisters. Jesus
himself warned it would be better for us to be drowned in the sea with
a millstone tied around our necks than to cause one of the little ones
who believe in Jesus to stumble. This weighs heavily on me. While it
may only be about 1 in 300 people who go to a casino and become
compulsively addicted, ruining their lives and families financially and
socially, Jesus did not specify a minimum acceptable loss ratio. I
think Jesus counts every soul precious and I am concerned He would not
want us to facilitate laying this potential stumbling block in our
community. Perhaps I am being overly cautious, as many legal products
and activities may also represent stumbling blocks.
Regardless of the outcome of t he Catawba Nation's application,
Congress, DOl, BIA and the gaming industry should probably create
financial suitability laws for gambling. The SEC and FINRA laws and
regulations limit certain investments to investors with adequate
income, assets and knowledge; and require spousal consent for certain
actions. A similar regime of suitability and spousal protection laws
could be created to protect the vulnerable from self-inflicted
financial harm by overindulging in gambling. I would help draft such a
Culture shift. Christian parents without strong ties to the area
have told me that if the casino comes, they are moving because they
will not try to raise godly children in the shadow of a casino.
Currently, most people in our community hold traditional American and
Judea-Christian values. I expect the casino to change the in-migration
and out-migration patterns in a way that may dilute the predominant
culture of the area.
A Republic of Sovereign States. Indian Nation Reservations are not
treaties with sovereign nations with sovereign territory. They are
effectively a federal creation of a federal subdivisions supreme to
State sovereignty. I am not sure this is constitutional or wise.
Perhaps God will give us a chance to test this question.
Concentration risk. I am concerned that the proposed Catawba casino
may concentrate enormous political influence in one entity, the casino.
Casino profit margins may be substantially larger than other
industries. Before a recent borrowing, the casino in Cherokee, NC
generated over $200 million per year in distributable income on about
$600 million in revenue, more than a 30 percent operating margin. That
is a lot of money available to influence local elections. The Catawba
casino could generate similarly large annual profits. However, the
Catawba casino could be a multimillion dollar per year utility customer
of the city, buying electricity, natural gas, water, sewer and dark
fiber from the city. This may give the casino operators strong
financial incentive to seek to influence their utility rates by
influencing the city council who sets those rates. If the city council
becomes coopted by individuals who shill for the casino our city budget
and programs may coopted. Good employees will not to work for a city
with a reputation of corruption. The current productivity and virtue of
our city government could be eroded. The repercussions may similarly
affect the community at large. I am concerned that we may start out as
a small city on the interstate that gets a casino and turn into a
casino on the interstate that owns a small city.
I pray God makes His perfect will clear to all of us and helps us
each heed the individual calls and interpretations He places in and on
our souls. I will continue to ask Him to intervene in the affairs of
mankind and direct our paths for optimal outcomes. Please do not
hesitate to contact me if I can help in any way.
Dear Honorable Cleveland County Commissioners and City of Kings
As ministers of the gospel and citizens of Cleveland County,
We commend you for your diligent efforts in developing our
economy; and we further commend you for multiple successes
creating jobs for our citizens in difficult times;
We however believe a casino in Kings Mountain will be
economically and socially harmful for our community; for we
believe gambling is Biblically and morally wrong;
We therefore implore you to remove your names from your letter
supporting a casino, cease plans for a gambling casino, and
continue good economic development;
For we humbly realize you will stand to give account for your
governing--even as we ministers will stand to give account for
our ministering--before the One upon whose shoulders the
government will rest, before the Lord on Judgment Day
Respectfully and Prayerfully,
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
*A copy of an ad that ran in the Shelby Star newspaper on Sunday,
May 5th in Shelby, NC. where more than 1,200 area residents signed a
statement declaring their opposition to the proposed casino mentioned
in S. 790 has been retained in the Committee files.*
Response to Written Questions Submitted by Hon. Catherine Cortez Masto
to John Tahsuda III
Question 1. Section 20(b) ofthe Indian Gaming Regulatory Act (lORA)
provides the Secretary of the Interior with the discretion to allow
gaming on lands acquired in trust by the Secretary, subject to certain
requirements. Two of these key requirements are the Secretary must
conduct consultation, and the Secretary must obtain concurrence in his
decision to allow gaming from the Governor of the State in which the
gaming activity is to be conducted. Section 1 (b) of S. 790 would
eliminate these requirements for the Catawba Indian Nation tribe. Is it
the Department's position that a Congressional hearing may serve as an
adequate substitute for the consultation requirements in 20(b)(1)(A)
Answer. No, a congressional hearing is not a substitute for the
Department's statutory requirement to consult under Section 20(b) of
Question 2. The governor's concurrence provision of Section 20(b)
ofiGRA recognizes that, the proper spokesperson for the land in
question is the Governor of the state where the land is located. A
Governor is a state executive, operating under state law. Your
testimony states, ``waiving Section 20 would be appropriate, I think,
because it is requiring the action of the two Senators in North
Carolina who have signed onto the bill indicating that Congress'
original concern that the Administration would act without having other
political involvement, that is not the case in this situation.'' Is it
the Department's view that the ``action'' of the two Senators from
North Carolina co-sponsoring S. 790 is sufficient to adhere to the
governor's concurrence provision and override the Governor's authority
Answer. No, however, Congress has the authority to enact
legislation to alter the application of any federal statute.
Question 3. Please confinn that S. 790 would be the first land into
trust bill that would authorize a waiver of Section 20(b) ofiGRA, and
state the Department's view as to why a waiver is necessary in this
Answer. On several occasions Congress has waived or altered the
application of Section 20(b) to a particular piece of land. For
example, in the Virginia recognition statutes, Congress waived Section
20(b) by stating ``gaming is prohibited'' on such land.
Question 4. During your testimony, you stated, ``every state has
slightly different legal requirements as to who gets to determine on
behalf of the State, but usually it is the governor. . . . ``Please
provide the Committee with a list of states that have eliminated the
authority for the Governor to make a concurrence with the Secretary's
determination that gaming on proposed trust land ``would be in the best
interest of the Indian tribe'' and ``would not be detrimental to the
Answer. The authority of a state official, even the chief executive
of a state, is a matter of state law. The Department does not keep
track of state law authorities.
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. William Harris
Question 1. Please provide the Nation's application to the
Department of the Interior to talke land into trust relating to the
parcel in S. 790.
Answer. See Attachment, Land into Trust Application. *
* The document entitled APPLICATION OF THE CATAWBA INDIAN NATION TO
ACQUIRE 16.57 ACRES +/- OF OFF-RESERVATION TRUST LAND IN KINGS
MOUNTAIN, NORTH CAROLINA, PURSUANT TO 25 U.S.C. 5108 AND 25 C.F.R.
PART 151--SEPTEMBER 17, 2018 has been retained in the Committee files
Question 1a. Please also provide a list of all documents it has
provided the Secretary to assist him in making a determination under
IGRA Section 20(b).
Answer. Because the Nation is not subject to IGRA, the Nation is
not required, and has not provide any documents to the Secretary with
regard to Section 20(b). The reason the Nation is not subject to IGRA
is that the Catawba Indian Tribe of South Carolina Land Claims
Settlement Act of 1993, Pub. L. 103-116, formerly codified at 25 U.S.C.
941 et seq. (omitted from the editorial reclassification of Title 25)
(``Settlement Act'') states unambiguously: ``The Indian Gaming
Regulatory Act.shall not apply to the Tribe.'' Pub. L. 103-116 at
14(a) (internal citation omitted). The Settlement Act does not
condition IGRA's inapplicability to the Nation based on the geographic
location of its activities. IGRA simply does not apply to the Nation
regardless of where any gaming activities of the Nation are taking
Question 2. Please describe the ``option'' to buy the land between
the Nation and the current property owner referenced in your hearing
Answer. The option agreement is with Trent Testa, in his capacity
as the owner of Roadside Truck Plaza, Inc. The option was submitted to
the BIA as part of its review of the Nation's land into trust
application. As Principal Deputy Assistant Secretary John Tahsuda
testified at the hearing, the use of option agreements is common with
land into trust applications.
Question 2a. Has the ``option'' been executed?
Answer. Yes. The option agreement was originally executed with an
effective date of May 4, 2013. It was renewed several times, including
most recently on September 14, 2018. It is effective through January
Question 2b. What assurances does the Nation have that if S. 790 is
enacted, the property owner will not leverage the bill to insist on
selling the property at a drastically increased price, similar to what
the Nation experienced with other plots of land?
Answer. The option agreement contains a fixed price for the sale of
the property, which is below fair market value and which cannot be
changed without the consent of both parties.
Response to Written Questions Submitted by Hon. Tom Udall to
John Tahsuda III
BIE Teacher Recruitment and Retention
Question 1. At the March, 13,2019 Oversight Hearing, Senator Tester
asked BIE Director Dearman if he had any data on teacher vacancies at
the Bureau. \1\ Mr. Dearman responded that he did not, but he promised
to get back to the Committee. However, as far as I am aware, the
Committee has not received this follow-up information. For the past
five school years, please provide a national and regional summary of
all BIE teaching and administrative vacancies.
\1\ Where Are They Now: Indian Programs on the GAO High Risk List,
Hearing Before the S. Comm. on Indian Affairs, I 16th Cong. (20 19)
(statements of Sen. Jon Tester and Tony Dearman, Director, Bureau of
Answer. Prior to the 2016 BIE Reorganization contract education
vacancy data, including teaching and school administrative positions,
was not collected. Following the transfer of human resources functions
from BIA to BIE in February 2016, BIE began tracking such data for all
directly operated BIE schools, including BIE-operated schools on the
Navajo reservation. The total number of vacancies within BIE-operated
schools fluctuates year-to-year based upon a variety of factors,
including the number of enrolled students and whether there were any
school conversions. Most recently, the total number of teacher
positions within BIE-operated schools was 818.
Associate Deputy SY 2016-2017 SY 2017-2018 SY 2018-2019
Director (ADD) Offices Vacancies Vacancies Vacancies
Navajo Schools 20 111 138
BIE Operated Schools 4 82 88
TOTAL 24 193 226
Question 1a. For the past five school years, please provide an
annual estimate of the number of teacher vacancies nationally and
regionally at the midpoint of each school year.
School Year 2017-2018 Facility Rate at Midpoint
ADD Navajo Schools 11
ADD BIE Operated Schools 6
School Year 2018-2019 Facility Rate at Midpoint
ADD Navajo Schools 12
ADD BIE Operated Schools 9
Question 1b. Is the Bureau able to estimate the levels of teacher
vacancies at Tribally operated BIE schools?
Answer. No. Tribally operated schools maintain complete autonomy
and control over their human resources functions, including identifying
the number of teaching and administrative positions and hiring.
Additionally, tribally controlled schools are not required, and DIE has
no power to compel, the reporting of intemal human resources data.
Question 1c. Please provide a summary of faculty and administrative
vacancies at Haskell and Southwestern Indian Polytechnic University for
the 2018-2019 school year.
Institution Vacancy Type School Year
Haskell Indian Nations University Faculty 2
Haskell Indian Nations University Administrative 12
Southwestern Indian Polytechnic Faculty 8
Southwestern Indian Polytechnic Administrative 33
Question 1d. What recruitment and retention programs or strategies
is the Bureau currently utilizing to address the number of teaching
Answer. BIE has developed and is currently implementing milestones
within its five year Strategic Direction designed to address common
challenges, such as recruitment and retention. Additionally, the BIE
has identified and is actively implementing the following strategies in
order to address its current rate of critical skill vacancies:
BIE Talent Recruiters: The BIE recently hired two full-time
BIE Human Resources staff as full-time talent recruiters. These
recruiters maintain direct contact with the career services
offices of nine (9) tribal colleges and ten (1 0) universities
with high Indian populations, including New Mexico, Montana,
Oklahoma and South Dakota. Additionally, during 2018-2019
School Year the two BIE talent recruiters attended ten (10)
regional job fairs, expanded online job advertisements beyond
USA Jobs to include Handshake, which posts our announcement's
on over 350 universities nationwide, Jobvite, Indeed, Team ND,
which posts jobs on the career sites of six (6) North Dakota
universities, and Jobzone, which posts on the career sites of
nine (9) Nebraska universities.
Student Loan Repayment: The BIE recently began providing
student loan repayment recruitment incentives. In exchange for
the student loan repayment recruitment incentive, a newly hired
BIE employee must sign a written agreement to complete a
specified period of employment. During FY 2019, the BIE has
utilized its new student loan incentive to recruit five (5)
critical skill vacancies and plans to continue utilizing this
tool to fill additional vacancies.
Recruitment Incentive: The BIE also recently began providing
a cash recruitment incentive to recruit qualified candidates
for difficult to fill vacancies. As is the case with the
student loan incentive, in exchange for the cash recruitment
incentive a newly hired BIE employee must sign a written
agreement to complete a specified period of employment. During
FY 2019, the BIE has utilized its new cash recruitment
incentive to recruit one (1) critical skill vacancy and plans
to continue utilizing this tool to fill additional vacancies.
P.L. 100-297 Tribally Controlled School Grants
Question 1. On July 1, 2018, Acoma Pueblo's Department of Education
(ADoE) took over operation of Sky City Community School, a BIE-operated
school, via use of P.L. 100-297 grant and renamed the school Haak'u
Community Academy. As noted in my October 18, 2018 letter to BIE
Director Dearman, \2\ ADoE experienced a number of unanticipated
difficulties during and after the transition process from direct
service to 297 grant. For example, the week before this hearing, ADoE
informed my staff that BIE did not--
\2\ Letter from Sen. Tom Udall, vice chairman, S. Comm. of [ndian
Affairs, to Tony Dearman, Director, Bureau of Indian Affairs (Oct. 18,
2018) (on file with the S. Comm. oflndian Affairs).
Inform the Tribe that it would remove basic software from
the school's computers;
Leave copies of student records, including special education
files that are required for Individuals with Disabilities Act
(IDEA) compliance; and
Inform the Tribe that ''297'' Grant schools are ineligible
to continue using GSA school buses.
I am concerned that these miscommunications will impact the
educational opportunities for Acoma students. What's more, these
difficulties seem to indicate a broader problem related to the Bureau's
technical assistance for Tribes and Tribal organizations interested in
converting their direct-service BIE school to a P.L. 100-297 grant. Has
the Department worked with ADoE and GSA to ensure student
transportation is not disrupted at Haa'ku Academy?
Answer. The Department has worked cooperatively with both ADoE and
GSA regarding this matter, and we have been able to reach a short-term
accommodation with GSA. Representatives from the BIE, the Solicitor's
Office, and the Secretary's office have, and will, continue to actively
engage with the GSA in an effort to reach a final resolution that
minimizes disruption to the school.
Question 1a. Will the Department review its protocols for student
record transfers during the P.L. 100-297 conversion process to ensure
there are no lapses in federal education law compliance?
Answer. On July 2, 2018, BIE and Haak'u Community Academy personnel
jointly accessed the school's student record vault to review and
transfer said documents, including special education files. However, a
few weeks following this transfer, school administrators communicated
to BIE that some files appeared to be missing. BIE staff immediately
identified that the issue was caused due to some original files being
placed into archived status. BIE personnel then provided copies of the
original files to the school. BIE remains committed to improving its
services to Tribes and schools and regularly reviews its protocols.
Question 1b. What training and technical assistance does BIE offer
Tribal communities interested in taking over administration of a BIE
school via a P.L. 100-297 grant?
Answer. BIE's Associate Deputy Director offices and Education
Resource Centers are specifically designed to provide individualized
technical assistance to schools and tribes to support their educational
sovereignty, including training and assistance regarding P.L. 100-297
and 93-638 school conversions.
Question 1. Please provide a list of all documents the Secretary
requires to make a determination under lGRA Section 20(b).
Answer. Section 20 of IGRA generally prohibits gaming activities on
lands acquired in trust by the United States on behalf of a tribe after
October 17, 1988, 25 U.S.C. 2719. However, Congress expressly
provided several exceptions to the general prohibition. The
Department's regulations at 25 C.F.R. Part 292 set forth the procedures
for implementing Section 20 of IGRA.
An applicant tribe must submit a written request for a Secretarial
(Two-Part) Determination, 25 U.S.C. 2719(b)(l)(A) that contains:
Documentation that the proposed gaming establishment will be
in the best interest of the tribe and its members (25 C.F .R.
Documentation that the proposed gaming establishment will
not be detrimental to the surrounding community, including NEPA
compliance documentation (25 C.F.R. 292.18).
The governor of the state in which the gaming activity is to
be conducted must provide written concurrence in the
Secretarial Determination (25 C.F.R. 292.22).
An applicant tribe must submit a written request for a
determination of eligibility to conduct gaming pursuant to 25 U.S.C.
2719(b)(1)(B)(i-iii) that contains:
For settlement of a land claim, documentation that the land
was acquired pursuant to the settlement of a land claim (25
For an initial reservation of a tribe acknowledged pursuant
to the federal acknowledgment process, documentation that the
tribe has been federally recognized; and has a reservation
proclamation, or a significant historical connection and a
modem connection to the land (25 C.F.R. 292.6).
For the restoration of lands for a tribe that is restored to
federal recognition, documentation that the tribe was federally
recognized, terminated, and restored to federal recognition,
and the land qualifies as restored lands (25 C.F .R. 292.7-
Question 2. Please list each instance the Department has approved
gaming on lands acquired in trust by the Secretary for a tribe pursuant
to Section 20(b) of the Indian Gaming Regulatory Act, including the
name of the beneficiary Tribe, the date, and state in which the
property is located.
Answer. See Attachment I.
Question 3. The Catawba Indian Nation is not the current owner of
the property S. 790 would authorize the Secretary to place land into
trust for the purposes of gaming. Has the Department ever taken a
parcel in which a tribe did not have a recorded interest into trust
pursuant to 25 C.F.R. 151.1 et seq. for gaming purposes?
Question 3a. If yes, please provide a complete list, specifying the
beneficiary tribe, the date, and the state in which the land was taken
Answer. Tribes typically own the land in fee or exercise an option
to purchase the land in fee before the government acquires it in trust.
In some cases, tribes have agreements where the landowner, often the
developer, transfers the land directly to the government to be held in
trust for the tribe.
Question 3b. Does Interior's land into trust process for gaming
activities differ in the situation where a tribe actually owns a parcel
Question 4. If S. 790 is enacted, what assurances will the
Department, as trustee, provide the Nation to prevent or curb the
subject property owner from leveraging S. 790 in order to sell it at a
drastically increased price?
Answer. The Department understands that the Nation has a binding
option agreement to purchase the subject property at an already
Attachment I--Applications Approved Pursuant to Section 20(b) of the
Indian Gaming Regulatory Act Following Its Enactment on October 17,
1988 (25 U.S.C. 2719(b)).
office of indian gaming u.s. department of the interior september 11,
25 U.S.C. 2719 (b)(l)(A): Secretarial Determination (Two Part
Tribe City, County & State Approved
Forest County Potawatomi Milwaukee, Milwaukee County, 07/10/1990
Community (Governor Wisconsin
Confederated Tribes of Siletz Salem, Marion County, Oregon 11/06/1992
Indians (Governor non-
Sault Ste. Marie Tribe of Detroit, Wayne County, 08/18/1994
Chippewa Indians (Governor Michigan
Kalispel Indian Community Airway Heights, Spokane 08/19/1997
(Governor concurrence 6/26/ County, Washington
Saint Regis Mohawk Tribe Monticello, Sullivan 04/06/2000
(Governor concurrence York 2/ County, New York
18/2007)(land not acquired
Keweenaw Bay Indian Community Chocolay Township, 05/09/2000
(Governor's concurrence Marquette
County, Michigan 11/7/2000)
Lac Courte Oreilles Band, Red Hudson, St. Croix County, 02/20/2001
Cliff Band & Sokaogon Wisconsin
Chippewa Community (Governor
Jena Band of Choctaw Indians Logansport, DeSoto Parish, 12/24/2003
(Governor gave no written
non- Louisiana concurrence)
Fort Mojave Indian Tribe Needles, San Bernardino 02/29/2008
(Governor concurrence 11120/ County, California
Northern Cheyenne Tribe Big Horn County, Montana 10/28/2008
(Governor concurrence 7/30/
Enterprise Rancheria of Maidu Yuba County, California 09/01/2011
North Fork Rancheria of Mono Madera County, California 09/01/2011
Keweenaw Bay Indian Community Negaunee Township, 12/20/2011
(Governor non-concurrence 6/ Marquette County, Michigan
Kaw Nation (Governor Kay County, Oklahoma 05/17/2013
Menominee Indian Tribe Kenosha, Kenosha County, 08/23/2013
(Governor non-concurrence 1/ Wisconsin
Spokane Tribe of the Spokane Spokane County, Washington 06/15/2015
concurrence 6/8/20 16)
Shawnee Tribe (Governor Texas County, Oklahoma 01/19/2017
25 U.S.C. 2719 (b)(1)(B)(i): Settlement of a land claim
Tribe City, County & State Approved
Seneca Nation of Indians Niagara Falls, Niagara 11/29/2002
County, New York
Tohono O'odham Nation Glendale, Maricopa County, 07/23/2014
Arizona 07/23/2010 Remand:
25 U.S.C. 2719 (b)(1)(B)(ii): Initial reservation of an Indian tribe
acknowledged by the Secretary under the federal acknowledgment process
Tribe City, County & State Approved
Mohegan Indian Tribe New London, Montville 09/28/1995
Nottawaseppi Huron Band of Battle Creek, Calhoun 07/31/2002
Potawatomi 25 U.S.C. 2719 County, Michigan
Match-E-Be-N ash-She-Wish Wayland Township, Allegan 02/27/2004
Band (Gun Lake Tribe) of County, Michigan
Snoqualmie Tribe Snoqualmie, King County, 01/13/2006
Cowlitz Indian Tribe Clark County, Washington 12/17/2010
Mashpee Wampanoag Tribe Bristol and Barnstable 09/18/2015
25 U.S.C. 2719 (b)(1)(B)(iii): Restored lands for a tribe that is
restored to federal recognition
Tribe City, County & State Approved
Confederated Tribes of the Grand Ronde, Polk County, 03/05/1990
Grand Ronde Community Oregon
Coquille Indian Tribe North Bend, Coos County 06/22/1994
Confederated Tribes of Siletz Lincoln City, Lincoln 12/13/1994
Indians County, Oregon
Coquille Indian Tribe Coos Bay, Coos County, 02/01/1995
Confederated Tribes of Coos, ``Hatch Tract,'' Lane 01/28/1998
Lower Umpqua & Siuslaw County, Oregon
Little River Band of Ottawa Manistee County, Michigan 09/24/1998
Little Traverse Bay Bands of Petoskey, Emmett County, 08/27/1999
Odawa Indians Michigan
Paskenta Band of Nomlaki Corning, Tehema County, 11/30/2000
Lytton Rancheria San Pablo, Contra Costa 01/18/2001
Pokagon Band of Potawatomi New Buffalo, Berrien County, 01/19/2001
United Auburn Indian Placer County, California 02/05/2002
Ponca Tribe of Indians Crofton, Knox County, 12/20/2002
Little Traverse Bay Bands of Petoskey, Emmett County, 07/18/2003
Odawa Indians Michigan
Elk Valley Rancheria Del Norte County, California 01/04/2008
Mechoopda Indian Tribe of Butte County, California 03/ 01/24/2014
Chico Rancheria 14/2008 Remand:
Federated Indians of Graton Rohnert Park, Sonoma County, 04/18/2008
Habematolel Porno of Upper Upper Lake, Lake County, 09/08/2008
lone Band of Miwok Indians Amador County, California 05/24/2012
Cloverdale Rancheria of Pomo Sonoma County, California 04/29/2016
Indians of California
Pokagon Band of Potawatomi South Bend, St. Joseph 11/17/2016
Indians, Michigan and County, Indiana
Wilton Rancheria Sacramento County, 01/19/2017