Cleaning up obsolete laws, bringing land into trust, Utah Public Lands Initiative, federal tribal recognition, and Columbia River fishing rights.

Senate

Cleaning up Obsolete Laws

Senator Mike Rounds (SD) introduced the RESPECT Act (“Repealing Existing Substandard Provisions Encouraging Conciliation with Tribes” Act – S. 2796) in April this year. The Senate Committee on Indian Affairs approved the bill with one modifying amendment on September 14. The bill would repeal a long list of old laws that should be declared defunct. Some are clearly outdated, but others could still have some weight — such as the laws that threaten to take food assistance away if parents do not cooperate in sending their children to the Bureau of Indian Education (BIE) schools, or the laws that do not allow Native Americans to “capture” a white person. If the House accepts this bill, it could clean up some laws by the end of this year.

Buying Back Land – Bringing It into Trust

In March, Senator Tester (MT) introduced the Reservation Land Consolidation Act of 2016 (S. 2636). Generations ago, lands were “reserved” for Indian tribes, and were then cut up into individual allotments for Indian families. The “surplus” was sold to non-Indians, such as railroads, miners, and settlers.

Some tribes are now able to buy back some of their “checker-boarded” lands – buying up tracts that are completely surrounded by remaining reservation land. The bill would expedite procedures through which the Department of the Interior takes these lands into trust upon the application of the tribe whose reservation surrounds them. This bill will ease the application process by providing for automatic approval for bringing such lands into trust. 

The Senate Committee on Indian Affairs discussed the bill on September 14, and may take action on the bill yet this year. 

Columbia River Fishing Rights

Beginning in the 1930s, the federal government constructed 17 dams along the Columbia and Snake Rivers, ignoring the treaty rights protecting Native fishing, and dismissing the cultural and spiritual values that lived in the river for the Native peoples who had been there for millennia. As villages and fishing grounds were flooded by each successive dam, the tribes were promised other fishing grounds “in lieu” of all that had been taken. But through at least five decades, the federal government left that promise unfilled. The Army Corps of Engineers built 27 parks along the river, but was unable to find six promised sites for Native fishing villages.

In 1986, the Columbia River Gorge was declared a National Scenic Area, and Congress renewed the promise to the tribes. Finally in 1988, the Senate Committee on Indian Affairs called in witnesses to review the treaty rights. The committee heard from the federal agencies and also from the Yakama, Warm Springs, Umatilla, and Nez Perce. Yakama representative, Levi George, summed of the history of the Columbia River Gorge with succinct sadness:

“Under these lakes lies the heritage of the Yakama people. Gone are our traditional villages, camp sites, drying sheds, rapids and falls and usual and accustomed fishing places, covered by these lakes in the name of progress. Also gone are many promises made to us by the white man during the building of the dams, including promises that fish ladders at the dams would fully protect our salmon, that our fishers would not be lost through progress and that our fishing places, at least in part, would be replaced.”

This brief history and the quote from the 1988 hearing are from an August 2010 post

In the 1988 amendments to the Indian Reorganization Act, Congress authorized the Army Corps of Engineers to provide and improve facilities for Indian fishing camps “to the same standard as those provided in the National Park System.” The facilities were to include “all weather roads and boat ramps; docks; sanitation; fish cleaning, curing and ancillary fishing facilities; electrical and sewage facilities; and landscaping.”

Now, 28 years later, these camps need some upkeep. Senators Merkley (OR), Wyden (OR), Murray (WA), and Cantwell (WA) have introduced S. 3222 to authorize the Secretary of the Interior to assess the “sanitation and safety” of the fish camp facilities, and to spend money improving them. The bill specifically provides that the Department of the Interior, not the Army Corps of Engineers, is the only agency authorized to undertake the project, and that the Department is authorized to contract with an Indian tribe or organization to carry out the work. Representative Blumenauer (OR-3) has introduced identical legislation in the House as H.R. 5811. The Senate Committee on Indian Affairs held a hearing on this bill, but has not yet approved it.

House

Columbia River Fishing Rights

Meanwhile, the House Committee on Natural Resources approved another bill relating to the Columbia River. H.R. 564 would allow temporary permits for federal, state, and tribal governments to “take” sea lions that have become unnaturally successful predators against salmon in the Columbia River and its tributaries. The system of dams in the river tends to concentrate the flow of salmon in small areas, now easily accessible by sea lions. The bill waives some (but not all) of the requirements of the National Environmental Policy Act for a period of five years.

Federal Tribal Recognition

On September 8, the full House Natural Resources Committee considered and passed the “Tribal Recognition Act of 2016,” H.R. 3764, introduced by committee chair, Rob Bishop (UT-1). This legislation would replace the current process of tribal recognition, handled through the Department of the Interior, by requiring congressional approval for tribal recognition. The BIA is to publish guidelines, and to receive petitions for recognition from Indian groups that are not currently recognized and that have not been previously denied federal recognition. To be recognized, an Indian group would have to comprise a distinct community, and consist of individuals who descend from an historical Indian tribe. The group’s tribal identity would have to be established continuously since 1900. Being previously recognized and then being “terminated” would be considered evidence of the tribal character of a group.

The BIA is to receive the petition, assist the group in completing any missing parts, notify neighboring or related tribes or petitioning groups, and the public, of the receipt of the petition, and hold preliminary hearings before reporting on the petition to Congress. Then only Congress can decide.

Before presenting the bill in full committee, Rep. Bishop introduced an amendment in the nature of a substitute which added federal recognition of six state-recognized Virginia tribes, along with the Little Shell of Chippewa (Montana).

As the ranking minority member, Rep. Grijalva (AZ-3) offered two amendments. One removed all of the contents of the original bill, and kept only the provisions recognizing the Virginia tribes and the Little Shell Band of Chippewa. The other amendment was similar to that offered by Rep. Cole in the appropriations process – returning the law on taking lands into trust to the way it was before the decision in the Carcieri case. Both were defeated.

Amendments to the Alaska Native Claims Settlement Act

H.R. 2387, the Alaska Native Land Allotment Equity Act, would provide land allotments to Alaska Native Vietnam War Veterans who were not available to participate in the allotments of 160-acre parcels while they were away on active duty. The bill would allow for full allotments where only partial parcels had been available, would allow for land swaps among allotment holders, and would provide for consultation with Native Alaskan elected leaders. The Natural Resources Committee passed the bill on voice vote.

Utah Public Lands Initiative

The Natural Resources Committee debated and approved the Utah Public Lands Initiative (H.R. 5780) introduced by Rep. Bishop, chair of the committee, and Rep. Chaffetz, both representing Utah districts. The bill would provide permanent protections for 18 million acres in South Eastern Utah – an area larger than Massachusetts, New Jersey, Connecticut, Delaware and Rhode Island combined. The committee chair described the bill as the result of a massive three-year effort to balance the interests of all Utah users of these federal lands.

The 18 million acres include 1.9 million acres around Bears Ears, the ancestral home of at least 13 Native American tribes. The Bears Ears Inter-Tribal Coalition, consisting of five tribes, had proposed specific protections and a plan of co-management of the sensitive area, along with federal government.

Opponents of the measure pointed to several disturbing provisions:

• The bill leaves out 500,000 acres of land in traditional use by the tribes in the region. Consultation with local tribes was diminished in the bill to participation in a tribal commission, which would then send one representative to a ten-member advisory board. Rep. Grijalva offered an amendment that would remove the sections relating to Bears Ears and Indian Creek, to allow for further work to incorporate the proposal from the Intertribal Coalition. The amendment was defeated.
• The bill sets up new definitions for “National Conservation Area” and “Wilderness Area” which allow for multiple uses, including new roads, recreational uses, commercial development, and gas, oil and mineral extraction. The current legal definitions for these protected areas would not allow such development. The director of the Bureau of Land Management (BLM) had informed the Subcommittee on Federal Lands that the President would not sign the bill in its current form. An amendment to revert to the current law definition was defeated.
• The bill would transfer 100,000 acres that lie within the Ouray and Uinta reservations to the state of Utah, in exchange for other acreage that would be used for other purposes in the bill. An amendment to exempt “reservation” lands from the impacts of the bill was defeated, following a heated debate on the meaning of “ownership” with respect to reservation lands that had not been placed in trust or were not owned directly by the tribe. The lands were reserved for the tribe in 1882 by President Chester Arthur, but had not been placed in trust. The chair
• Other amendments to prohibit the building of new roads in wilderness study areas, and to preserve federal controls over oil and gas extraction permitting were also defeated before the bill was approved by the committee.