[House Report 115-584]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-584
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EASTERN BAND OF CHEROKEE HISTORIC LANDS REACQUISITION ACT
_______
February 27, 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. 146]
[Including cost estimate of the Congressional Budget Office]
The Committee Natural Resources, to whom was referred the
bill (H.R. 146) to take certain Federal lands in Tennessee into
trust for the benefit of the Eastern Band of Cherokee Indians,
and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Eastern Band of Cherokee Historic
Lands Reacquisition Act''.
SEC. 2. LAND TAKEN INTO TRUST FOR THE EASTERN BAND OF CHEROKEE INDIANS.
(a) Lands Into Trust.--Subject to such rights of record as may be
vested in third parties to rights-of-way or other easements or rights-
of-record for roads, utilities, or other purposes, the following
Federal lands managed by the Tennessee Valley Authority and located on
or above the 820-foot (MSL) contour elevation in Monroe County,
Tennessee, on the shores of Tellico Reservoir, are declared to be held
in trust by the United States for the use and benefit of the Eastern
Band of Cherokee Indians:
(1) Sequoyah museum property.--Approximately 46.0 acres of
land generally depicted as ``Sequoyah Museum'', ``Parcel 1'',
and ``Parcel 2'' on the map titled ``Eastern Band of Cherokee
Historic Lands Reacquisition Map 1'' and dated April 30, 2015.
(2) Support property.--Approximately 11.9 acres of land
generally depicted as ``Support Parcel'' on the map titled
``Eastern Band of Cherokee Historic Lands Reacquisition Map 2''
and dated April 30, 2015.
(3) Chota memorial property and tanasi memorial property.--
Approximately 18.2 acres of land generally depicted as ``Chota
Memorial 1'' and ``Tanasi Memorial'' on the map titled
``Eastern Band of Cherokee Historic Lands Reacquisition Map 3''
and dated April 30, 2015, and including the Chota Memorial and
all land within a circle with a radius of 86 feet measured from
the center of the Chota Memorial without regard to the
elevation of the land within the circle.
(b) Property on Lands.--In addition to the land taken into trust by
subsection (a), the improvements on and appurtenances thereto,
including memorials, are and shall remain the property of the Eastern
Band of Cherokee Indians.
(c) Revised Maps.--Not later than one year after the date of a land
transaction made pursuant to this section, the Tennessee Valley
Authority, after consultation with the Eastern Band of Cherokee Indians
and the Secretary of the Interior, shall submit revised maps that
depict the land taken into trust under this section, including any
corrections made to the maps described in this section to the Committee
on Natural Resources of the House of Representatives and the Committee
on Indian Affairs of the Senate.
(d) Contour Elevation Clarification.--The contour elevations referred
to in this Act are based on MSL Datum as established by the NGS
Southeastern Supplementary Adjustment of 1936 (NGVD29).
(e) Conditions.--The lands taken into trust under this section shall
be subject to the conditions described in section 5.
SEC. 3. PERMANENT EASEMENTS TAKEN INTO TRUST FOR THE EASTERN BAND OF
CHEROKEE INDIANS.
(a) Permanent Easements.--The following permanent easements for land
below the 820-foot (MSL) contour elevation for the following Federal
lands in Monroe County, Tennessee, on the shores of Tellico Reservoir,
are declared to be held in trust by the United States for the benefit
of the Eastern Band of Cherokee Indians:
(1) Chota peninsula.--Approximately 8.5 acres of land
generally depicted as ``Chota Memorial 2'' on the map titled
``Eastern Band of Cherokee Historic Lands Reacquisition Map 3''
and dated April 30, 2015.
(2) Chota-tanasi trail.--Approximately 11.4 acres of land
generally depicted as ``Chota-Tanasi Trail'' on the map titled
``Eastern Band of Cherokee Historic Lands Reacquisition Map 3''
and dated April 30, 2015.
(b) Revised Maps.--Not later than one year after the date of a land
transaction made pursuant to this section, the Tennessee Valley
Authority, after consultation with the Eastern Band of Cherokee Indians
and the Secretary of the Interior, shall submit to the Committee on
Natural Resources of the House of Representatives and the Committee on
Indian Affairs of the Senate revised maps that depict the lands subject
to easements taken into trust under this section, including any
corrections necessary to the maps described in this section.
(c) Conditions.--The lands subject to easements taken into trust
under this section shall be subject to the use rights and conditions
described in section 5.
SEC. 4. TRUST ADMINISTRATION AND PURPOSES.
(a) Applicable Laws.--Except as described in section 5, the lands
subject to this Act shall be administered under the laws and
regulations generally applicable to lands and interests in lands held
in trust on behalf of Indian tribes.
(b) Use of Land.--Except the lands described in section 2(a)(2), the
lands subject to this Act shall be used principally for memorializing
and interpreting the history and culture of Indians and recreational
activities, including management, operation, and conduct of programs of
and for--
(1) the Sequoyah birthplace memorial and museum;
(2) the memorials to Chota and Tanasi as former capitals of
the Cherokees;
(3) the memorial and place of reinterment for remains of the
Eastern Band of Cherokee Indians and other Cherokee tribes,
including those transferred to the Eastern Band of Cherokee
Indians and other Cherokee tribes and those human remains and
cultural items transferred by the Tennessee Valley Authority to
those Cherokee tribes under the Native American Graves
Protection and Repatriation Act (25 U.S.C. 3001 et seq.); and
(4) interpreting the Trail of Tears National Historic Trail.
(c) Use of Support Property.--The land described in section 2(a)(2)
shall be used principally for the support of lands subject to this Act
and the programs offered by the Tribe relating to such lands and their
purposes including--
(1) classrooms and conference rooms;
(2) cultural interpretation and education programs;
(3) temporary housing of guests participating in such
programs or the management of the properties and programs; and
(4) headquarters offices and support space for the trust
properties and programs.
(d) Land Use.--The principal purposes of the use of the land
described in section 3(a)--
(1) paragraph (1), shall be for a recreational trail from the
general vicinity of the parking lot to the area of the Chota
Memorial and beyond to the southern portion of the peninsula,
including interpretive signs, benches, and other compatible
improvements; and
(2) paragraph (2), shall be for a recreational trail between
the Chota and Tanasi Memorials, including interpretive signs,
benches, and other compatible improvements.
SEC. 5. USE RIGHTS, CONDITIONS.
(a) Flooding of Land and Roads.--The Tennessee Valley Authority may
temporarily and intermittently flood the lands subject to this Act that
lie below the 824-foot (MSL) contour elevation and the road access to
such lands that lie below the 824-foot (MSL) contour elevation.
(b) Facilities and Structures.--The Eastern Band of Cherokee Indians
may construct, own, operate, and maintain--
(1) water use facilities and nonhabitable structures,
facilities, and improvements not subject to serious damage if
temporarily flooded on the land adjoining the Tellico Reservoir
side of the lands subject to this Act that lie between the 815-
foot and 820-foot (MSL) contour elevations, but only after
having received written consent from the Tennessee Valley
Authority and subject to the terms of such approval; and
(2) water use facilities between the 815-foot (MSL) contour
elevations on the Tellico Reservoir side of the lands subject
to this Act and the adjacent waters of Tellico Reservoir and in
and on such waters after having received written consent from
the Tennessee Valley Authority and subject to the terms of such
approval, but may not construct, own, operate, or maintain
other nonhabitable structures, facilities, and improvements on
such lands.
(c) Ingress and Egress.--The Eastern Band of Cherokee Indians may use
the lands subject to this Act and Tellico Reservoir for ingress and
egress to and from such land and the waters of the Tellico Reservoir
and to and from all structures, facilities, and improvements maintained
in, on, or over such land or waters.
(d) River Control and Development.--The use rights under this section
may not be exercised so as to interfere in any way with the Tennessee
Valley Authority's statutory program for river control and development.
(e) TVA Authorities.--Nothing in this Act shall be construed to
affect the right of the Tennessee Valley Authority to--
(1) draw down Tellico Reservoir;
(2) fluctuate the water level thereof as may be necessary for
its management of the Reservoir; or
(3) permanently flood lands adjacent to lands subject to this
Act that lie below the 815-foot (MSL) contour elevation.
(f) Right of Entry.--The lands subject to this Act shall be subject
to a reasonable right of entry by the personnel of the Tennessee Valley
Authority and agents of the Tennessee Valley Authority operating in
their official capacities as necessary for purposes of carrying out the
Tennessee Valley Authority's statutory program for river control and
development.
(g) Entry Onto Land.--To the extent that the Tennessee Valley
Authority's operations on the lands subject to this Act do not
unreasonably interfere with the Eastern Band of Cherokee Indians'
maintenance of an appropriate setting for the memorialization of
Cherokee history or culture on the lands and its operations on the
lands, the Eastern Band of Cherokee Indians shall allow the Tennessee
Valley Authority to enter the lands to clear, ditch, dredge, and drain
said lands and apply larvicides and chemicals thereon or to conduct
bank protection work and erect structures necessary in the promotion
and furtherance of public health, flood control, and navigation.
(h) Loss of Hydropower Capacity.--All future development of the lands
subject to this Act shall be subject to compensation to the Tennessee
Valley Authority for loss of hydropower capacity as provided in the
Tennessee Valley Authority Flood Control Storage Loss Guideline, unless
agreed to otherwise by the Tennessee Valley Authority.
(i) Protection From Liability.--The United States shall not be liable
for any loss or damage resulting from--
(1) the temporary and intermittent flooding of lands subject
to this Act;
(2) the permanent flooding of adjacent lands as provided in
this section;
(3) wave action in Tellico Reservoir; or
(4) fluctuation of water levels for purposes of managing
Tellico Reservoir.
(j) Continuing Responsibilities.--The Tennessee Valley Authority
shall--
(1) retain sole and exclusive Federal responsibility and
liability to fund and implement any environmental remediation
requirements that are required under applicable Federal or
State law for any land or interest in land to be taken into
trust under this Act, as well as the assessments under
paragraph (2) to identify the type and quantity of any
potential hazardous substances on the lands;
(2) prior to the acquisition in trust, carry out an
assessment and notify the Secretary of the Interior and the
Eastern Band of Cherokee Indians whether any hazardous
substances were stored on the lands and, if so, whether those
substances--
(A) were stored for 1 year or more on the lands;
(B) were known to have been released on the lands; or
(C) were known to have been disposed of on the lands;
and
(3) if the assessment under paragraph (2) shows that
hazardous substances were stored, released, or disposed of on
the lands, include in its notice under paragraph (2) to the
Secretary of the Interior and the Eastern Band of Cherokee
Indians--
(A) the type and quantity of such hazardous
substances;
(B) the time at which such storage, release, or
disposal took place on the lands; and
(C) a description of any remedial actions, if any,
taken on the lands.
SEC. 6. LANDS SUBJECT TO THE ACT.
For the purposes of this Act, the term ``lands subject to this Act''
means lands and interests in lands (including easements) taken into
trust for the benefit of the Eastern Band of Cherokee Indians pursuant
to or under this Act.
SEC. 7. GAMING PROHIBITION.
No class II or class III gaming, as defined in the Indian Gaming
Regulatory Act (25 U.S.C. 2701 et seq.), shall be conducted on lands
subject to this Act.
PURPOSE OF THE BILL
The purpose of H.R. 146 is to take certain Federal lands in
Tennessee into trust for the benefit of the Eastern Band of
Cherokee Indians, and for other purposes.
BACKGROUND AND NEED FOR LEGISLATION
The Eastern Band of Cherokee Indians is a relatively small
tribe located in the Great Smoky Mountains of westernmost North
Carolina. The Tribe's reservation, which covers over 51,000
acres, is known as the Qualla Boundary and is headquartered in
Cherokee, North Carolina.\1\
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\1\Veronica E. Valarde Tiller, Tiller's Guide to Indian Country,
third edition, at 587 (2015).
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After the 1979 completion of the Tellico Dam in Loudon
County, Tennessee, the Tribe continued in active communication
with the Tennessee Valley Authority (TVA) on any areas impacted
that the Tribe believed was of historical significance to the
Tribe. The Tribe currently manages most of these properties as
part of two permanent easements granted to the Tribe in 1984
and 1986. These easements were a result of informal agreements
with TVA to address the Tribe's objections to TVA's
construction of the Tellico Dam and Reservoir. Currently, the
Tribe operates the Sequoyah Museum on one easement with TVA.
The Tribe believes that the original intent of both the
Eastern Band leadership and TVA was to have the properties
permanently transferred into trust status for the Tribe.
H.R. 146 would place approximately 96 acres of TVA land in
Monroe County, Tennessee, on the shores of Little Tennessee
River/Tellico Reservoir into trust for the benefit of the
Eastern Band of Cherokee Indians. Additionally, the bill
provides that two permanent easements over TVA land be held in
trust. Gaming pursuant to the Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.) would be prohibited on the lands placed
into trust.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Provides that the Act may be cited as the Eastern Band of
Cherokee Historic Lands Reacquisition Act.
Sec. 2. Land taken into trust for the Eastern Band of Cherokee Indians
Subsection (a) provides that subject to pre-existing
rights-of-way or easements by third parties, three federal
properties as shown on referenced maps, totaling approximately
76.1 acres, shall be placed into trust for the Tribe.
Subsection (b) provides that any physical property,
including improvements to or on the land under section (a),
will be the property of the Tribe.
Subsection (c) provides that TVA, after consulting with the
Tribe and the Secretary of the Interior, shall submit any
revisions to any maps to the Congressional committees of
jurisdiction.
Subsection (d) indicates that the contour elevations
referred to in this Act are based on MSL Datum as established
by the NGS Southeastern Supplementary Adjustment of 1936
(NGVD29).
Subsection (e) provides that lands taken into trust under
this section are bound by conditions set forth in section 5 of
the bill.
Sec. 3. Permanent easements taken into trust for the Eastern Band of
Cherokee Indians
Subsection (a) provides that two easements held by the
Tribe and identified on ``Map 3'' shall be placed into trust
for the Tribe.
Subsection (b) provides that TVA, after consulting the
Tribe and the Secretary of the Interior, shall submit any
revisions to any maps regarding permanent easements to
Congressional committees of jurisdiction.
Subsection (c) provides that lands taken into trust under
this section are bound by conditions set forth in Section 5 of
the bill.
Sec. 4. Trust administration and purposes
Subsection (a) clarifies that except as provided by section
5, the laws and regulations generally applicable to lands held
in trust for tribes shall apply to the lands subject to the
Act.
Subsection (b) provides that all lands taken into trust,
except lands described in section 2(a)(2), shall be used
primarily for memorializing and interpreting history of the
Tribe.
Subsection (c) indicates that support property identified
under the bill shall be limited to uses such as classrooms and
conference rooms; cultural interpretation for education
programs; and temporary housing for guests.
Subsection (d) indicates that principal purposes of the use
of land described in section 3(a) shall be for recreational
trails.
Sec. 5. Use rights, conditions
Provides that the lands placed into trust under this Act
may not interfere with normal operations of the TVA and grants
TVA adequate access for carrying out TVA activities. Further,
this section provides that TVA shall not be liable for any loss
or damage resulting from normal activities. The section also
delineates activities that may be conducted by the Tribe and
grants the Tribe access to the lands taken into trust under
this Act.
Sec. 6. Lands subject to the Act
Clarifies that the term ``lands subject to this Act'' used
in the bill includes land and easements placed into trust for
the Tribe under this Act.
Sec. 7. Gaming prohibition
Provides that class II and III gaming as defined in the
Indian Gaming Regulatory Act would be prohibited on the lands
put into trust under the bill.
COMMITTEE ACTION
H.R. 146 was introduced on January 3, 2017, by Congressman
Charles J. ``Chuck'' Fleischmann (R-TN). 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 October 4, 2017, the Subcommittee held a hearing on
the bill. On January 17, 2018, the Natural Resources Committee
met to consider the bill. The Subcommittee was discharged by
unanimous consent. Congressman Rob Bishop (R-UT) offered an
amendment designated #1; it was adopted by unanimous consent.
No additional amendments were offered and the bill, as amended,
was ordered favorably reported to the House of Representatives
by unanimous consent.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 23, 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. 146, the Eastern
Band Cherokee Historic Lands Reacquisition 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. 146--Eastern Band Cherokee Historic Lands Reacquisition Act
H.R. 146 would take into trust, for the benefit of the
Eastern Band of Cherokee Indians, approximately 96 acres of
land located in Monroe County, Tennessee, that is currently
administered by the Tennessee Valley Authority (TVA). The bill
would require TVA to submit revised maps to the Congress of
those lands and would prohibit certain types of gaming on them.
Using information from TVA, CBO estimates that compiling
the information to revise the maps of the lands taken into
trust under the bill would cost about $30,000 in 2018. Under
current law, TVA sells electricity at prices sufficient to
recover any costs over the useful life of an investment,
program, or activity in lieu of receiving annual
appropriations. On that basis, CBO expects that any increase in
direct spending for mapping would be treated as an operating
expense and recovered quickly in TVA's rates. Thus, CBO
estimates that the net effect on direct spending would be
negligible.
Because enacting H.R. 146 would affect direct spending,
pay-as-you-go procedures apply. Enacting H.R. 146 would not
affect revenues.
CBO estimates that enacting H.R. 146 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 146 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 take certain Federal lands in
Tennessee into trust for the benefit of the Eastern Band of
Cherokee Indians, and for other purposes.
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.
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