[House Report 106-207]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 106-207
======================================================================
A BILL TO RATIFY CERTAIN TRANSFERS OF LAND FROM, BY, OR ON BEHALF OF
THE DELAWARE NATION OF INDIANS
_______
June 29, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 562]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 562) to approve and ratify certain transfers of land and
natural resources by or on behalf of the Delaware Nation of
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 out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. RATIFICATION OF TRANSFERS; EXTINGUISHMENT OF TITLE AND
CLAIMS.
(a) Approval and Ratification of Prior Transfers.--Any transfer of
land or natural resources located within what is now the boundaries of
the State of New Jersey or any transfer of hunting or fishing rights
related thereto, from, by, or on behalf of the Delaware Nation of
Indians, which occurred prior to 1833, including any transfer pursuant
to any treaty, compact, deed, Act, or statute of the State of New
Jersey, shall be deemed to have been made in accordance with the
Constitution and all laws of the United States that are specifically
applicable to transfers of land or natural resources from, by, or on
behalf of any tribe, nation, pueblo, or band of Indians, or any member
thereof (including without limitation, the Trade and Intercourse Act of
1790 (ch. 33, sec. 4; 1 Stat. 137, 138)), and Congress does approve and
ratify any such transfer effective as of the date of the transfer.
(b) Aboriginal Title Extinguished.--To the extent that any transfer
described in subsection (a) involves land, natural resources, or
hunting or fishing rights to which the Delaware Nation of Indians had
aboriginal title, subsection (a) shall be regarded as an extinguishment
of such aboriginal title.
(c) Claims Extinguished.--All claims against the United States, the
State of New Jersey or subdivision thereof, or any other person or
entity, by the Delaware Nation of Indians arising before December 31,
1832, and based on any interest in or right to land or natural
resources within the boundaries of the State of New Jersey, (including
without limitation, claims for trespass damages, claims for use and
occupancy, or claims involving hunting or fishing rights) shall be
deemed to have been extinguished as of December 31, 1832.
(d) Definition.--For the purposes of this section, the term
``Delaware Nation of Indians'' means the Delaware Nation of Indians,
the Delaware Tribe of Indians, the Delaware Tribe of Western Oklahoma,
any member of those tribes, and any descendant, predecessor, or
successor in interest of those tribes and any member thereof.
PURPOSE OF THE BILL
The purpose of H.R. 562 is to approve and ratify certain
transfers of land and natural resources by or on behalf of the
Delaware Nation of Indians.
BACKGROUND AND NEED FOR LEGISLATION
In 1756, a reservation ( the ``Brotherton Tract'') was
created for the Lenape Indians in Burlington County, New
Jersey. By 1800, most of the Lenapes had left the reservation.
In 1801, at the request of the Lenapes, the State of New Jersey
appointed commissioners to sell the reservation, and to place
the proceeds in trust for the Tribe to finance their
relocation.
In 1832, a Lenape representative appeared before the New
Jersey State Legislature and claimed that the 1802 sale did not
terminate the Tribe's hunting and fishing rights. The
Legislature authorized payment to the Lenapes in exchange for
the extinguishment of all the Lenape's rights to the property
in New Jersey.
The 1802 sale of the Brotherton Tract and the subsequent
1832 financial agreement between the State of New Jersey and
the Lenape Indians were never ratified by the United States
Congress pursuant to an act to regulate trade and intercourse
with the Indian tribes (Act of July 22, 1790, ch. 33, 1 Stat.
137, codified as amended at 25 U.S.C. 177), in which the United
States Government assumed all responsibility over Indian land
transactions. Enactment of H.R. 562 would recognize and ratify
the 1802 sale of the Brotherton Tract, an action in which the
federal government would meet its trust obligation under the
1790 Act.
COMMITTEE ACTION
H.R. 562 was introduced on February 3, 1999, by Congressman
Jim Saxton (R-NJ), and was referred to the Committee on
Resources. On April 28, 1999, the Full Resources Committee met
to consider H.R. 562. At that time, Mr. Saxton offered an
amendment in the nature of a substitute making technical
corrections to the bill, and adding a definition for ``Delaware
Nation of Tribes.'' The amendment was adopted by voice vote.
The bill, as amended, was then ordered favorably reported to
the House of Representatives by a roll call vote of 21-16, as
follows:
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 Resources' oversight findings and recommendations
are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation.--Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that Rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act.--As required by clause 3(c)(2)
of Rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. Government Reform Oversight Findings.--Under clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives, the Committee has received no report of
oversight findings and recommendations from the Committee on
Government Reform on this bill.
4. Congressional Budget Office Cost Estimate.--Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 22, 1999.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 562, a bill to
provide and ratify certain transfers of land and natural
resources by or on behalf of the Delaware Nation of Indians,
and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Megan
Carroll (for federal costs) and Marjorie Miller (for the impact
on state, local, and tribal governments).
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
congressional budget office cost estimate
H.R. 562--A bill to approve and ratify certain transfers of land and
natural resources by or on behalf of the Delaware Nation of
Indians, and for other purposes
H.R. 562 would approve and ratify any transfer of land or
natural resources by or on behalf of the Delaware Nation of
Indians that occurred prior to 1833 within the present
boundaries of the state of New Jersey. The bill also would
extinguish any title to the transferred lands and resources all
claims against the United States and the state of New Jersey
made by the Delaware Nation of Indians that are based on an
interest in land or resources transferred prior to 1833.
CBO estimates that enacting H.R. 562 would have no
significant impact on the federal budget. H.R. 562 contains an
intergovernmental mandate as defined in the Unfunded Mandates
Reform Act (UMRA). CBO estimates that this mandate would not
impose costs above the threshold established by the act ($50
million in 1996, adjusted annually for inflation) in any of the
five years following its enactment. The bill contains no new
private-sector mandates as defined in UMRA.
In the early 1800s, the Lenape Indians--a band recognized
as part of the Delaware Nation of Tribes--left their
reservation in New Jersey. At the tribe's request, the state of
New Jersey sold their land and placed the proceeds in trust for
the tribe. In 1832, the state made an additional payment to the
tribe to settle the tribe's claim to hunting and fishing rights
on that land. These transactions were never ratified by the
Congress, as required by the Trade and Intercourse Act of 1970,
and so the land could be subject to claims on behalf of tribes
claiming to be descendants of the Lenape. This bill would
extinguish all such claims as of December 31, 1832, thus
cutting off the primary legal avenue currently available to
these tribes to pursue land claims in New Jersey. CBO has
determined that this action would constitute a mandate as
defined in UMRA because it would prohibit the tribes from
exercising a legal right that they currently possess.
The cost of this mandate would depend on the outcome of any
future land claims that might be brought under current law and
would equal whatever compensation a tribe might realize from
such a claim. No such claims have been brought, but the
Department of the Interior is investingating whether members of
the Delaware Tribe of Western Oklahoma are descended from the
Lenape and could pursue a claim for that land on behalf of the
tribe. That claim would be forestalled by this legislation.
CBO has no basis for predicting the outcome of this
potential claim or any others that might be affected by this
bill. We find it highly unlikely, however, that tribes would
realize a monetary gain of more than $50 million in any year
within the five-year time frame established by UMRA, in part
because any such claims are not likely to be settled within
that period. Further, the initial monetary benefits, if any,
probably would be less than $50 million. Based on information
provided by New Jersey state officials, CBO estimates that the
value of the land that might be claimed by the Delaware Tribe
of Western Oklahoma probably would initially be less than that
amount. Consequently, CBO estimates that the mandate would not
impose costs to tribes above the UMRA threshold in any of the
next five years.
Enactment of this bill could impose substantially greater
costs on Indian tribes beyond the five-year period. Considering
only the possible claim of the Delaware Tribe of Western
Oklahoma, the value of a settlement could be much greater
several years from now, should the tribe prevail and establish
profitable businesses on the land. Any other claims that might
be brought by this or other tribes under current law also would
be precluded. CBO cannot predict whether such claims would be
brought or would be successful.
In contrast, the state of New Jersey and local governments
in the state would benefit from enactment of this legislation
to the extent that it would preclude any land claims that might
otherwise impose costs on those entities.
The CBO staff contacts are Megan Carroll (for federal
costs) and Majorie Miller (for the impact on state, local, and
tribal governments). This estimate was approved by Robert A.
Sunshine, Deputy Assistant Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act, but the costs imposed are
below the threshold established by that Act.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State or local
law. If the Delaware Nation of Tribes is found to have a claim
against the United States regarding the Brotherton Tract, this
bill would extinguish those claims in accordance with the Trade
and Intercourse Act (25 U.S.C. 177).
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
DISSENTING VIEWS
We strongly oppose passage of this legislation which
terminates the legal claims of the Delaware Tribe of Western
Oklahoma without a public hearing. Over the years, this
Committee has made strides in addressing past injustices to
Indian tribes, but this bill represents a serious step
backward, not only to the Delaware Tribe, but to all those who
care about protecting the interests of American Indians and
believe in due process
background
At the time of European contact, the Lenni Lenape, now
commonly known as the Delaware tribe, originally inhabited
lands along the river now bearing their name in the present
state of New York, Pennsylvania, New Jersey and Delaware.
Initial contact with Europeans is believed to have taken place
about 1620; by 1682, due in most part to pressure from non-
Indian settlement, the main body of the tribe was located in
eastern Pennsylvania, where they signed the famous treaty with
William Penn. Some tribal members remained in New Jersey,
however, where in 1758 the colonial government created the
Brotherton Reservation, containing approximately 3,000 acres of
land in the present Evesbam Township, Burlington County, New
Jersey.
As with nearly every American Indian tribe in the East, the
Delawares soon faced tremendous pressure to relocate away from
the tide of non-Indian settlement or suffer the consequences.
Individual tribal members forced to migrate during this period
typically did not travel as part of a cohesive unit. Typically,
some tribal members left early on, while others resisted
removal as long as possible. The net result was that migrations
usually became protracted, constantly shifting struggles
against non-Indian encroachment. Many tribal members simply
perished or dropped out of the group along the way. Among the
Delaware, this meant the tribe was soon scattered along a
migratory trail from New Jersey all the way to the Mississippi
River. During the American Revolution, the main body of the
Tribe was living in Ohio and Indiana. Some Delawares, not happy
with the results of the War, traveled as far West as the
Spanish territory of Missouri soon thereafter. Those Delaware
tribal members still living on the lands set aside for them as
the Brotherton Reservation in New Jersey faced tremendous
pressure to sell their lands during this period.
In 1778, the Delawares were the first Indian tribe to
negotiate a peace treaty with the new United States (7 Stat.
13). In 1788, the Constitution of the United States, including
the ``Indian Commerce Clause,'' became the law of the land. In
1790, Congress passed the Trade and Intercourse Act (as amended
25 U.S.C. 177), placing the authority over Indian land sales
exclusively within federal jurisdiction. In 1801, the New
Jersey legislature enacted legislation (N.J. Session Laws 1801
Chap LXIII) authorizing the allotment and public sale of the
Brotherhood Reservation. The State also compensated a small
number of tribal members for lost hunting and fishing rights on
these small lands in 1832. These acts, the subject of the
present controversy, may have violated the Trade and
Intercourse Act.
The Delaware Tribe of Western Okalahoma and the Wichita
Delaware Tribe of Indians are both Federally recognized tribes,
and both are successors in interest to the Delaware/Lenape from
the Brotherton Reservation in New Jersey. Both groups have
received compensation from the Federal government in the past
for lands in Indiana and Ohio, based on their shared status as
successors to the ``Delaware Tribe.'' At present only the
Delaware Tribe of Western Oklahoma is pursuing any claims in
New Jersey.
status of land claim
The Delaware Tribe of Western Oklahoma began investigating
their claim to the Brotherton Reservation lands in 1996, by
correspondence with the Governor of New Jersey and the
Department of Interior, including the Assistant Secretary for
Indian Affairs. The Tribe was notified by letter on July 15,
1996 from the Office of the Solicitor, Department of Interior,
that the Department would assist them in pursuit of their
claim. Following this 1996 letter the tribe submitted
additional information to the Department, which prompted the
Solicitor to assure, in a March 29, 1999 correspondence, that
he anticipated a review of the Tribe's claim would be completed
by late summer of this year (1999). Passage of H.R. 562 would
prematurely halt the review process.
The Chairman of the House Resources Committee received a
letter from the Solicitor of the Department of Interior on
April 28, 1999, the day the bill was marked up and voted on,
strongly opposing passage of H.R. 562. (Attached). The
Solicitor's correspondence noted that if concern over Indian
gaming was a motivating factor behind the bill, such concern
was ``misplaced'' for two reasons. First, any agreement reached
over the land involving the Department of Interior would
constitute ``settlement of a land claim,'' which would require
Congressional ratification. This would give Congress a clear
opportunity at a later date to consider potential gaming
issues. Second, if the Tribe negotiated some sort of settlement
with the State of New Jersey, it would required gubernatorial
concurrence.
H.R. 562 was rammed through the Resources Committee and
marked up on a straight party line vote. All Democratic Members
present voted against the measure. We are not taking a position
on the merits of the Delaware Tribe of Western Oklahoma's legal
claims without even benefit of a public hearing.
George Miller.
Eni Faleomavaega.
Patrick J. Kennedy.
Dale E. Kildee.
Neil Abercrombie.
Donna MC Christensen.
Ron Kind.
Mark Udall.
Jay Inslee.
------
Department of the Interior,
Office of the Solicitor,
Washington, DC, April 28, 1999.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: We understand that H.R. 562, a bill ``to
approve and ratify certain transfers of land and natural
resources by or on behalf of the Delaware Nation of Indians,
and for other purposes'' will be the subject of a full
committee markup today. The Department strongly opposes passage
of H.R. 562.
Our understanding is that a primary motivation for the
proposed legislation is concern about the possibility that the
Delaware Tribe of Western Oklahoma may be interested in
establishing a gaming operation in the State of New Jersey,
without first complying with the gubernatorial concurrence
requirement for off-reservation gaming found in Section 20 of
the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. Sec. 2719.
The idea is that the Tribe would seek to settle its claim to
land in New Jersey (a claim based on an alleged violation of
the Non-Intercource Act, 25 U.S.C. Sec. 177) and seek to game
on the land without gubernatorial concurrence, arguing that it
is a ``settlement of a land claim'' exempt from the section.
Such a concern is misplaced. In our view, to be eligible
for the ``settlement of a land claim'' exemption from Section
20 and its gubernatorial concurrence requirement, the land at
issue must have been obtained pursuant to a settlement that has
been ratified by Congress. See the attached memorandum of
November 18, 1998, from the Associate Solicitor for Indian
Affairs.
This means that the Department would not accept into trust,
as lands obtained in ``settlement of a land claim'' under
section 20 of IGRA, any off-reservation lands obtained by the
Delaware Tribe of Western Oklahoma in the State of New Jersey,
unless Congress had ratified the settlement. The requirement of
congressional ratification would obviously give Congress a
clear opportunity to address potential gaming issues on such
lands.
Our application of IGRA Section 20 is consistent with the
Department's general policy on the settlement of Indian land
claims. Whenever a tribe has raised a land claim based on the
Non-Intercourse Act, we have made clear to all interests
involved in settlement negotiations that Congress must ratify
any settlement agreement. I am not aware of any land claim
settlements based on the Non-Intercourse Act that purport to be
valid absent such Congressional approval.
Not only is this bill unnecessary, but we strongly object
to its approach of outright extinguishment of a legal claim
without giving the adversely affected party the benefit of any
hearing on the merits. The federal courts are the usual and
proper forum for examining the merits of such claims, including
the factual history and applicable legal standards on which
such claims are based.
Finally, although we have not had an opportunity to consult
with the Department of Justice regarding this matter, the
Department of Interior is concerned that enactment of H.R. 562
might give rise to a claim for compensation by the Delaware
Tribe of Oklahoma against the United States.
Neither the Department of the Interior nor the Department
of Justice have had adequate opportunity to review the factual
or legal underpinnings of the Delaware Nation's claim.
Therefore we cannot comment on its merits or lack thereof. But
to extinguish such a claim outright in these circumstances,
without any investigation or consideration, raises serious
questions of fairness and due process. This is especially the
case when, as explained above, the apparent motivating concern
about Indian gaming cannot be squared with IGRA's requirement
that gubernatorial concurrence be obtained, or that any
settlement that might be exempt from section 20's requirement
be ratified by Congress.
For these reasons, the Department strongly opposes the
enactment of H.R. 562.
Sincerely,
John D. Leshy,
Solicitor.