[House Report 115-513]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-513
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POARCH BAND OF CREEK INDIANS LAND REAFFIRMATION ACT
_______
January 11, 2018.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
[To accompany H.R. 1532]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1532) to reaffirm that certain land has been
taken into trust for the benefit of the Poarch Band of Creek
Indians, and for other purposes, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
PURPOSE OF THE BILL
The purpose of H.R. 1532 is to reaffirm that certain land
has been taken into trust for the benefit of the Poarch Band of
Creek Indians.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 1532 would ``reaffirm'' and ``ratify'' the trust
status of approximately 390 acres of land the Secretary of the
Interior acquired in trust for benefit of the Poarch Band of
Creek Indians of Alabama. The Tribe currently operates casinos
regulated pursuant to the Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.) on a portion of the lands under
consideration, along with a health clinic, an assisted living
facility and other facilities.
The Poarch Band of Creek Indians is located approximately
56 miles north of Mobile, Alabama. The Poarch Band is a segment
of the original Creek Nation which covered areas of Alabama and
Georgia. After the conclusion of the War of 1812, the Creeks
who supported the United States subsequently signed the Treaty
of Fort Jackson which resulted in the ceding of land in
Alabama. In 1836, many Creeks were removed from Alabama to the
Oklahoma territory. Some Creek Indians remained around the town
of Poarch, remaining a cohesive tribal group.
After fighting for decades to be recognized as a distinct
tribe, the Poarch Band was administratively recognized by the
Bureau of Indian Affairs on August 11, 1984. After obtaining
federal recognition, the Tribe acquired lands in both Alabama
and Florida, and these lands were then placed in trust by the
Secretary of the Interior under the authority of section 5 of
the Indian Reorganization Act (IRA, 25 U.S.C. 5108), which
gives the Secretary exceptionally broad power to acquire lands
in trust for Indians. Land held in trust for Indians is
generally immune from State and local jurisdiction and
taxation, and depending on the location of the land and the
date it was put in trust, a Tribe may be able to operate a
casino on it pursuant to the Indian Gaming Regulatory Act.
Accordingly, the Poarch Creeks own and operate two Indian
casinos and maintain several facilities for the use of its
members on its trust lands.
The need for H.R. 1532 arises because the lawfulness of
lands acquired in trust by the Secretary pursuant to the IRA
for the benefit of tribes recognized after 1934 (i.e., the date
of enactment of the IRA) is in question because of the U.S.
Supreme Court decision in Carcieri v. Salazar (555 U.S. 379
(2009)). The Poarch Band is one such tribe.
Until Carcieri, the Secretary used the IRA as the basis for
placing land in trust for tribes recognized at any time.
However, the Supreme Court determined that trust land
provisions of the IRA may be used only for the benefit of
tribes ``under federal jurisdiction'' as of the date of
enactment of the IRA. Since 2009, the Department of the
Interior (DOI) has failed to divulge to the Committee the names
of tribes that were or were not under federal jurisdiction in
1934 despite repeated requests for this information from
Republican leaders of the Committee. Moreover, a controversial
``M-Opinion'' interpreting the meaning of ``under federal
jurisdiction'' was issued by President Obama's DOI Solicitor to
provide legal backing to the continued acquisition of lands for
tribes recognized after 1934. Thus, rather than work with the
Committee to find a resolution to Carcieri, the Obama
Administration increased the potential for litigation over the
trust status of untold acres of lands owned by tribes.
The Committee has held several oversight and legislative
hearings to address Carcieri and to explore potential reforms
to improve the land-in-trust process administered by DOI. It is
important to note that the trust acquisition authority in
section 5 of the IRA has never been substantively amended since
the IRA was enacted in 1934.
One of the oversight hearings held on Carcieri and the IRA
includes a 2015 hearing in which the Poarch Band of Creek
Indians testified as to its situation.\1\ According to the
Tribe, many of its lands were placed in trust prior to 2009
pursuant to the IRA, and these trust lands have been developed
with the construction of buildings and businesses, including
casinos. If a court were to decide these lands are not lawfully
held in trust on the grounds the Poarch Band was recognized
after 1934, the lands could lose their trust status, exposing
the Tribe to State taxation and civil regulation, which in turn
could lead to the closure of tribal businesses and the
dismantling of facilities. In addition, the Tribe's casinos
would become subject to Alabama State law, which could lead to
the modification or closure of the gambling facilities, which
employ large numbers of people and generate revenues for the
Tribe's government.
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\1\Oversight Hearing House Subcommittee on Indian, Insular and
Alaska Native Affairs. Inadequate Standards for Trust Land Acquisition
in the Indian Reorganization Act of 1934. May 14, 2015.
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Like other post-1934 tribes, passing a ``clean Carcieri
fix'' (a reversal of the Supreme Court opinion) is a high
priority of the Poarch Creeks. On the other hand, there are
various governments, government organizations (including
certain tribes), private landowners, and citizen activists who
oppose a ``clean Carcieri fix'' unless limits are placed on the
power of the Secretary to acquire title to land, limits that
reflect a reasonable balancing of interests of all affected by
a trust acquisition. As explained by the chief legal officers
of several states:
Each exercise of the Secretary's authority to take
land into trust has substantial impact on state and
local communities. . . .
The Carcieri decision is only one highly visible
example of the larger frustration many states feel with
the existing regulatory process for taking land into
trust. The current process does not provide for
meaningful analysis or weighing of the input of states
and local units of government and is void of binding
limits on the discretion of the Secretary.\2\
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\2\Letter to the Chairmen and Vice Chairman and Ranking Member of
the Senate Committee on Indian Affairs and the House Natural Resources
Committee from the Attorneys General of Alaska, Colorado, Connecticut,
Florida, Hawaii, Iowa, Kansas, Massachusetts, Michigan, Mississippi,
Ohio, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, and
Utah, dated April 24, 2009.
Until a bill to resolve Carcieri is enacted, certain tribes
may seek to have the trust status of their existing lands
legislatively ratified, especially those lands acquired prior
to 2009. Accordingly, H.R. 1532 ratifies the trust status of
certain lands held by the United States for the Poarch Band.
The approximately 390 acres of land identified in H.R. 1532
were acquired in trust prior to the Carcieri decision in 2009,
and are located in Alabama, while a one-acre parcel is located
in Escambia County, Florida. The Committee has received no
correspondence from the Alabama or Florida Congressional
delegations or other elected officials from the affected areas
in Alabama and Florida in opposition to the ratification of
trust lands identified in H.R. 1532.
It is important to note that the State of Alabama was one
of 21 States to submit a friend-of-the-court brief to the
Supreme Court in support of the petition filed by Rhode Island
in the Carcieri lawsuit. These States generally argued that the
Secretary lacked power under the IRA to acquire land in trust
for tribes recognized after 1934. The position of these States,
including Alabama, does not necessarily indicate opposition to
or concern with H.R. 1532.
It is also important to note that the Muscogee (Creek)
Nation of Oklahoma has testified before the Natural Resources
Committee as to concerns with a parcel of land taken in trust
for the Poarch Band and subsequently developed by the Tribe for
a gambling facility.\3\ The Muscogee (Creek) Nation has argued
that such lands known as Hickory Ground are a sacred site
containing (or formerly containing until their removal) the
remains of Creek ancestors. Members of the Committee, however,
have not indicated an interest in using H.R. 1532 as a vehicle
to resolve this controversy between the two tribes.
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\3\https://naturalresources.house.gov/calendar/
eventsingle.aspx?EventID=398481
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SECTION-BY-SECTION ANALYSIS OF THE BILL
Section 1. Short title. This section provides the short
title of the bill, the Poarch Band of Creek Indians Land
Reaffirmation Act.
Section 2. Reaffirmation of Indian trust land. Subsection
(a) provides that lands described in subsection (b) are
confirmed to be held in trust and remain as Indian Country (the
term ``Indian Country'' denotes lands over which the federal
government or a tribe exercise certain federal civil and
criminal jurisdiction). Subsection (b) provides acreage and
legal descriptions for the lands to be reaffirmed as trust land
for the Poarch Band, totaling 390 acres. Subsection (c)
provides that this Act shall supersede any claims against the
trust status of the 390 acres of land described under
subsection (b).
COMMITTEE ACTION
H.R. 1532 was introduced on March 15, 2017, by Congressman
Bradley Byrne (R-AL). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Indian, Insular and Alaska Native Affairs. On November 7,
2017, the Natural Resources Committee met to consider the bill.
The Subcommittee was discharged by unanimous consent. No
amendments were offered and the bill was ordered favorably
reported to the House of Representatives by unanimous consent
on November 8, 2017.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, January 10, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1532, the Poarch
Band of Creek Indians Land Reaffirmation Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert Reese.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 1532--Poarch Band of Creek Indians Land Reaffirmation Act
H.R. 1532 would reaffirm the status of lands taken into
trust by the Department of the Interior for the benefit of the
Poarch Band of Creek Indians. The legislation also would
prohibit any lawsuits related to the trust land. CBO estimates
that implementing the legislation would have no significant
effect on the federal budget and would not significantly
increase the cost of managing tribal trust lands.
Enacting H.R. 1532 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 1532 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1532 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Robert Reese.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to reaffirm that certain land has
been taken into trust for the benefit of the Poarch band of
Creek Indians.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
COMPLIANCE WITH H. RES. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes to existing
law.