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Calendar No. 699
115th Congress } { Report
SENATE
2d Session } { 115-399
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GILA RIVER INDIAN COMMUNITY FEDERAL RIGHTS-OF-WAY, EASEMENTS AND
BOUNDARY CLARIFICATION ACT
_______
November 29, 2018.--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany H.R. 4032]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill, H.R. 4032, to confirm undocumented Federal rights-of-way
or easements on the Gila River Indian Reservation, clarify the
northern boundary of the Gila River Indian Community's
Reservation, to take certain land located in Maricopa County
and Pinal County, Arizona, into trust for the benefit of the
Gila River Indian Community, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends the bill do pass.
PURPOSE
The purpose of H.R. 4032 is to confirm undocumented federal
rights-of-way or easements on the Gila River Indian
Reservation, clarify the reservation's northern boundary, and
take certain land located in Maricopa County and Pinal County,
Arizona into trust for the benefit of the Gila River Indian
Community (``Tribe'').
BACKGROUND
The Gila River Indian Reservation was established on
February 28, 1859, for the Pima and Maricopa Tribes which
confederated into what is known today as the Gila River Indian
Community.\1\ The reservation was later expanded by several
executive orders between 1876 and 1915 in Maricopa and Pinal
counties, Arizona. President Rutherford B. Hayes signed one of
these Executive Orders on June 14, 1879, which established the
northwesterly corner of the reservation, and expanded the
northern boundary of the Tribe's reservation to the middle of
the Salt River.\2\
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\1\See 11 Stat. 401, Chap. 66.
\2\See President R. B. Hayes. Executive Order, 1 Kapp. 806, 807
(June 14, 1879).
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According to the Tribe, the new northwestern boundary was
not immediately surveyed after President Hayes' Executive Order
was issued. In 1895, the northern boundary of the reservation
was surveyed, but rejected by the U.S. General Land Office; the
northern boundary had been marked at the left bank of the Salt
River, rather than the ``middle of the . . . Salt River,'' as
called for in the Executive Order.\3\
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\3\See Letter 529901 ``E''. U.S. Surveyor General, General Land
Office, U.S. Department of the Interior. July 29, 1919.
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Between 1910 and 1920 there were attempts to properly
survey the boundary, but these efforts were complicated by the
disposal of land immediately adjacent to the reservation. In
its 1919 letter, the General Land Office explained that the
encroachment upon the Tribe's land resulted from the failure to
timely survey the reservation's boundaries in the wake of the
Executive Order.\4\
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\4\Id.
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The Tribe maintained that the final survey inaccurately
established the mid-point of the Salt River, but failed to
consider the northerly accretion of the River. The Tribe
further alleged that the City of Phoenix inaccurately relied on
an erroneous northern boundary to its reservation; by accepting
the erroneous and fixed boundary, and by issuing patents for
land based an inaccurate survey, the United States transferred
the Tribe's reservation lands to non-Indians, in violation of
the law, including, but not limited to, the Non-Intercourse
Act.\5\ Thus, the Tribe believed that, because of surveying
errors, and the further northward movement of the Salt River
since that time, the Tribe lost land on the northern portion of
its reservation which has since contributed to boundary
disputes.\6\
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\5\25 U.S.C. Sec. 177
\6\For example, surveying errors by the United States led to the
City of Phoenix's construction of a wastewater treatment plant which is
currently discharging effluent, and the materials contained within such
effluent, onto land rightfully granted to, and owned by, the Community.
Moreover, the City of Phoenix is causing twice-treated effluent to
enter the Reservation through recharge of the aquifer underlying the
Community's northern boundary.
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In 2006, the Tribe brought a complaint against the United
States seeking an accounting and reconciliation of its trust
fund accounts, and non-monetary trust assets or resources. The
Tribe asserted claims for monetary damages relating to the
United States' mismanagement of the Tribe's trust funds, and
non-monetary trust assets or resources. The claims included
breach of trust claims against the United States for failing to
document rights-of-way across the reservation, collect rent,
and account for the Tribe's and individual allottees' trust
assets. Additionally, the claims included a breach of the
United States' fiduciary duty for its failure to accurately
survey the reservation's northwesterly boundary, resulting in
illegal patenting of lands to non-Indians (i.e. the ``Tres Rios
boundary dispute'').
The United States entered into a settlement with the
Tribe.\7\ As part of the settlement negotiations, the Tribe
agreed to waive its claims related to the Tres Rios boundary
dispute. In exchange, the federal government agreed to pay
$12.5 million to the Tribe, and to transfer approximately 3,400
acres of land owned by the Bureau of Land Management to the
Tribe. The Tribe, and the United States, filed the fully
executed Joint Stipulation of Settlement with the U.S. District
Court for the District of Columbia on June 22, 2016. On March
20, 2017, the Tribe and the United States filed a joint
stipulation to dismiss the Gila River trust case with
prejudice.
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\7\See Gila River Indian Community v. Jewell, Civil Action No. 05-
02249 (D.C. Cir. 2006).
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SUMMARY
The bill, H.R. 4032, reflects the terms of the settlement.
The bill establishes the northwest boundary of the reservation,
and settles the Tres Rios boundary dispute. The legislation
includes a mandatory trust acquisition of 3,400 acres of
federal land for the Tribe as part of the boundary dispute
settlement. Lastly, the bill provides for surveys and the
creation of a map of the federal rights-of-way on the
Reservation.
LEGISLATIVE HISTORY
The bill, H.R. 4032, was introduced on October 12, 2017, by
Congressman O'Halleran and referred to the Committee on Natural
Resources of the House of Representatives, Subcommittee on
Indian, Insular, and Alaska Native Affairs. On February 6,
2018, the Subcommittee on Indian, Insular, and Alaska Native
Affairs held a legislative hearing on the bill. At that time,
the Gila River Indian Community Governor Stephen Lewis
testified in support of the bill. On May 8, 2018, H.R. 4032 was
considered by the Committee on Natural Resources of the House
of Representatives. At that time, Congressman Grijalva
introduced Amendment No. 086, which made technical changes to
the legislation, and was adopted by unanimous consent. On July
17, 2018, H.R. 4032 passed the House of Representatives under
suspension of the rules, and on July 18, 2018, H.R. 4032 was
received in the Senate and referred to the Committee on Indian
Affairs.
The Committee held a legislative hearing on November 14,
2018 at which it received testimony on H.R. 4032. Gila River
Indian Community Councilman Barney B. Enos, Jr. testified in
support of H.R. 4032, noting that the bill was critical ``to
enable the Community to obtain the full benefits of the
settlement the Community reached with the United States
resolving federal litigation that originated in 2006.'' The
Committee also received testimony from Darryl LaCounte, Acting
Director for the Bureau of Indian Affairs, in support of the
bill. On November 28, 2018 the Committee held a business
meeting, and reported H.R. 4032 favorably without amendment.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
This Act may be cited as the Gila River Indian Community
Federal-Rights-of-Way, Easements and Boundary Clarification
Act.
Section 2. Purposes
Section 2 declares the intent of the Act is to codify the
negotiated trust accounting and mismanagement settlement.
Section 3. Definitions
This section defines terms used in the Act.
Section 4. Land into trust for benefit of the community
Subsection (a) provides that, after a request by the Tribe,
the Secretary of the Interior will take the Lower Sonoran Lands
into trust for the benefit of the Tribe.
Subsection (b) provides that the map of the lands taken
into trust must be on file and made publicly available no later
than 180 days after enactment of the Act.
Subsection (c) provides that the Lower Sonoran Lands are to
be part of the reservation once they are taken into trust.
Subsection (d) states that Class II and III gaming under
the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) shall
not be allowed at any time on the land taken into trust for the
Community under subsection (a)..
Subsection (e) requires the Secretary of the Interior to
publish the full metes-and-bounds description of the Lower
Sonoran Lands no later than 180 days after the enactment of
this Act.
Section 5. Establishment of fixed northern boundary
Subsection (a) provides that the northern boundary of the
Gila River Indian Community Reservation, created by the 1879
Executive Order, is modified to be fixed, permanent, and not
ambulatory.
Subsection (b) provides that the portion of the reservation
boundary created by the Executive Order (along the middle of
the Salt River) is modified to be a fixed and permanent
boundary.
Subsection (c) provides that, subject to available
appropriations, the Secretary of the Interior will ensure that
the new reservation boundary, as described in subsection (b),
is surveyed and clearly marked.
Subsection (d) provides that the Reservation boundary,
resurveyed pursuant to the Act, shall become the northern
boundary of the Reservation, and no other portion of the
reservation boundary will be affected by this Act except as
specifically set forth in the Act.
Subsection (e) provides that the Secretary shall publish in
the Federal Register the modification and the resurvey of the
reservation boundary as set forth in subsections (b) and (c),
which shall constitute the fixed northern boundary of the
Reservation.
Section 6. Satisfaction and substitution of claims
This section provides that the negotiated settlement and
the benefits received by the Tribe, pursuant to this Act, shall
be in complete replacement of, substitution for, and full
satisfaction of, all claims that the Tribe, its members, and
allottees may have had against the United States.
The bill becomes effective on the later of the date on
which the Secretary publishes the Federal Register notice
required under section 4(e), publishes in the Federal Register
the notice required under section 5(e), and completes the
surveys for the Federal rights-of-way required by the language
of the bill.
Section 7. Federal rights-of-way
Subsection (a) provides that all the rights-of-way depicted
in the ROW, Easements, and Federal and Tribal Facilities Map
accompanying this Act are established, ratified, and confirmed.
Subsection (b) provides for the location of recordation of
all rights-of-way established, ratified, and confirmed in
Subsection (a).
Subsection (c) provides that the Federal Government shall
be considered the grantee or applicant for any and all rights-
of-way established pursuant to this Act.
Subsection (d) provides that either at the request of the
tribe, or pursuant to 25 C.F.R. Sec. 404-409, any rights-of-
way established by this Act may be cancelled. Requests for
cancellation shall be documented by a tribal resolution.
Subsection (e) provides that the granting of any rights-of-
way or easement, other than those depicted in the ROW,
Easements, and Federal and Tribal Facilities Map accompanying
this Act, may only be done in accordance with all applicable
laws and regulations.
Section 8. Survey
Subsection (a) provides that the Bureau of Indian Affairs
(BIA) shall undertake and complete a survey of each of the
federal rights-of-way established under this Act no later than
six years after enactment.
Subsection (b) provides that the BIA is authorized, subject
to available appropriations, to contract for the survey of all
federal rights-of-way established pursuant to this Act to the
Tribe or a third party.
Subsection (c) provides that upon completion of all surveys
authorized and undertaken, the Tribe and the Bureau of Indian
Affairs can determine if any anomalies exist with respect to
certain federal rights-of-way, and can choose to remove that
anomaly from the ROW, Easements, and Federal Tribal Facilities
Map.
Section 9. Hunt highway
This section clarifies that nothing in this Act shall
impact any right-of-way or easement associated with Hunt
Highway in Pinal County, Arizona, including the portion that
traverses the reservation.
COST AND BUDGETARY CONSIDERATIONS
On June 22, 2018, the Congressional Budget Office (CBO)
prepared a cost estimate for H.R. 4032, as considered by the
Committee on Natural Resources of the House of Representatives.
The bill was not amended during consideration by the Senate
Committee on Indian Affairs, so that there should be no changes
to affect the cost estimate. The subsequent cost estimate can
be published in the Congressional Record. The Chairman of the
Committee on Natural Resources of the House of Representatives
received the following letter, and cost estimate, for H.R. 4032
from the Director of the CBO.
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 22, 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 revised cost estimate for H.R. 4032, the
Gila River Indian Community Federal Rights-of-Way, Easements
and Boundary Clarification 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. 4032--Gila River Indian Community Federal Rights-of-Way, Easements
and Boundary Clarification Act
H.R. 4032 would direct the Department of the Interior (DOI)
to take about 3,400 acres of land into trust for the benefit of
the Gila River Indian Community. The bill also would establish
a permanent northern boundary for the tribe's reservation and
would establish and ratify three rights-of-way and one grazing
permit on that land. DOI would be required to survey the new
tribal boundary and the rights-of-way and publish those
surveys. Using information from DOI, CBO estimates that the
administrative expenses associated with those activities would
not be significant.
The land that could be taken into trust under the bill is
currently managed by DOI and yields no financial benefits to
the federal government. DOI is in the process of transferring
that land to the Gila River Indian Community through a
noncompetitive, direct land sale. H.R. 4032 specifies that once
the sale of the land is finalized DOI shall, at the request of
the tribe, take the land into trust for the benefit of the
tribe.
Enacting H.R. 4032 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 4032 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
H.R. 4032 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
This cost estimate for the Gila River Indian Community
Federal Rights-of-Way, Easements and Boundary Clarification Act
supersedes the estimate transmitted on June 12, 2018, for the
same bill. CBO's earlier estimate was based incorrect
information indicating that the sale would not proceed under
the bill and title to the land would be transferred to the
tribe for no consideration. This revised cost estimate corrects
that error.
The CBO staff contact for this estimate is Robert Reese.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that H.R. 4032
will have minimal impact on regulatory or paperwork
requirements.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding H.R. 4032.
CHANGES IN EXISTING LAW
In accordance with Committee rules, subsection 12 of rule
XXVI of the Standing Rules of the Senate is waived. In the
opinion of the Committee, it is necessary to dispense with
subsection 12 of rule XXVI of the Standing Rules of the Senate
to expedite the business of the Senate.
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