The Restoration Act
THE RESTORATION ACT
AUGUST 18, 1994 – Ordered to be printed
Mr. INOUYE, fronm the committee on Indian Affairs, submitted the following REPORT (To accompany H.R. 4228).
The Committee on Indian Affairs, to which was referred the bill (H.R. 4228) having considered the same, reports favorably thereon with an amendment and recommends that the bill do pass.
PURPOSE
The purpose of H.R. 4228 is to restore Federal recognition to the United Auburn Indian Community of the Auburn Rancheria of California.
BACKGROUND
California Indians:
Prior to European contact, historians estimate that there may have been as many as 350,000 Indians indigenous to and living within the boundaries of what is now the State of California, with no fewer than 64, and perhaps as many as 80, separate languages spoken. California Indians were equally rich in diverse cultures and traditions. Spanish Rule:
As with other aboriginal peoples in the western hemisphere, California Indians underwent a catastrophic decline in population following European contact. Contact with Europeans began in the 16th century when the first Spanish expeditions explored areas of California. Twenty-One Spanish missions were established and the laws of Spain were enforced during the 18th century. Lands were held in trust for the crown and Indians residing on those lands were displaced, enslaved or killed. In addition, European diseases ravaged native communities. By 1845, the California Indian population had declined to approximately 150,000.
In 1848, the Treaty of Guadalupe Hidalgo ended the war with Mexico and ceded California and other territories to the jurisdiction of the United States. For California Indians, however, the jurisdiction of the United States did not end their exploration nor slow the rate of their population decline.
The Gold Rush:
In the late 1840’s the discovery of gold in California brought an onslaught of fortune-seekers with a rapacious appetite for gold, land, and other instant riches. During the ” Gold Rush ” period which ensued, California Indian tribes were viewed as obstacles to settlement. California Indians were enslaved, starved and targeted for elimination. They were the objects of Sunday hunting parties, stalked and killed as big game roaming the forests of northern California.
On April 22, 1850, the California legislature passed an act ” for the Government and Protection of Indians ” which provided for limited federal interference in state land issues. Further, this 1850 Act effectively allowed for the sale of Indians into slavery. Although this Act was repealed in 1863, its devastating effect on California Indian was irreversible.
In 1851, the California Land Claims Act was enacted by the California Legislature to create a commission to consider the claims of parties who held lands under Spanish Rule. As might have been expected, California Indians were not informed of this potential remedy, and the United States and California failed to bring claims on their behalf. A series of claims court decisions established the principle of law that the failure of California Indians to file claims in a timely manner barred subsequent actions. Accordingly, the Indian tribes’ land claims against the Spanish were nullified and their lands became part of the public domain.
The Barbour Treaties:
During 1851 and 1852, Indian Commissioners were assigned to provide for a ” just and equitable settlement with the Indians of California ” on behalf of the United States. Between March 19, 1851, and January 7, 1852, the Commissioners negotiated with California Indian tribal governments eighteen treaties and one supplemental agreement. These came to be known as the ” Barbour Treaties “.
Under the Barbour Treaties the United States recognized California Indian tribes as political entities with the sovereign power to enter into agreements in order to alienate their lands. Indeed, the tribes relinquished all rights and title to California land. In exchange, the tribes reserved over 8.5 million acres of aboriginal land and were to receive other goods, subsistence, supplies, livestock and clothing. Guarantees of teachers, doctors, farmers, carpenters and other workers were included in the treaties as well.
On July 8, 1852, the United States Senate, in executive session, refused to ratify the treaties, due to objections from California’s legislature and business interests. The treaty documents were then placed under an injunction of secrecy until January 18, 1905. Hence, California Indian tribes who had bargained in good faith and signed the treaties were never notified that the treaties were not ratified and further, that the U.S. Treaty Commissioners were not empowered to bind the United States.
California Indian tribes abided by the terms of the treaties and ceded the entire state of California and voluntarily relegated themselves to their reserved lands. In spite of the Senate’s failure to ratify the treaties, lands which had been occupied by tribes were surveyed as public lands and sold. After deducting offsets for all services and purchases provided, the United States paid for the taking of the lands and reservations and no other treaties were ever entered into.
Absent ratification of the treaties, settlers recognized no land rights in the tribes and continued their systematic eradication of California Indians. Indeed, by 1855 the population of California Indians had decreased to less than 50,000. Some survivors found refuge at seven military reservations crated to protect them between 1853 and 1862. In the 1870’s the United States began purchasing or reserving small tracts of land for landless Indians called ” rancherias ” or ” village homes. ” Many were granted small individual allotments.
The Smiley commission was appointed in 1890 and directed to conduct a survey of the conditions of southern California Indians. As a result, the mission Relief Act of 1891 was enacted and small parcels of land in Southern California were set aside for Indians. Yet by the end of the century, homelessness, hunger, disease and extermination had reduced the Indian population in California to approximately 15,000 which represented only about 4 percent of their numbers prior to European contact.
The Barbour Treaties, which many of the tribes still retained as part of their oral history, were ” discovered ” in 1905. This discovery led to a further extension of congressional programs to provide for land acquisition for homeless Indians, based on their tribal affiliation.
By 1915, the population rose to slightly over 19,000 and California Indians lived in 55 out of 60 counties, only 1,800 on reservations created by Executive Order or otherwise, 12,000 having individual allotments, leaving at least 4,500 Indians destitute and homeless. More rancherias were established for those who refused to abandon their traditional homelands and the remnants of their tribal existence.
In 1928, the U.S. Congress permitted the Indians of California to file suit against the United States for the compensation promised under the Barbour treaties. In 1944 the Court of Claims allowed relief -47 cents per acre as just compensation for the taking of Indian aboriginal lands comprising the State of California.
The Indian Reorganization Act (IRA) of 1934 provided a mechanism for organizing additional tribal governments and many of the rancherias voted on the application of the IRA to their communities. Hence, the management of internal affairs by California tribes became recognized by the Bureau of Indian Affairs.
The Termination Era:
In 1953, the U.S. Congress passed House Concurrent Resolution 108 which called for the assimilation of Indians and the termination of federal responsibilities towards tribes. A series of termination statutes followed, including Public Law 85-671, the ” Rancheria Act, in 1958. This Act provided for the termination of federal trust responsibilities to 41 rancherias located in California. Accordingly, distribution plans for trust assets were prepared and carried out through the mid-1960’s. tribes in the Coyote Valley of California were terminated under separate but similar legislation.
Although President Nixon declared the termination policy a failure in 1970, it was not until the 100th Congress, that the termination policy was expressly repudiated in the House and Senate. Most tribes terminated in the 1950’s and 1960’s have been restored to federally-recognized status by the Congress. Others, such as some of the rancherias, have had the federal relationship restored through the judicial process.
HISTORY OF THE UNITED AUBURN INDIAN COMMUNITY
The historic existence of the Auburn Indian Community is documented in Bureau of Indian Affairs’ correspondence dating back to the early 1900’s. In this correspondence, the Auburn Band was described as a small, cohesive band of Indians residing in a small village on the outskirts of the City of Auburn, about forty miles northeast of the City of Sacramento.
In one letter, dated August 15, 1916, from Special Indian Agent John J. Terrell to the commissioner of Indian Affairs, Terrell described the group as numbering 25, ” which were all full bloods, except George and Lillie Newewey, who are ¾ bloods. ” Terrell also described their ” little Village ” and referred to them, not as isolated Indian families, but as a ” small hard-working band of good Indians (who) should receive some of the benefits of the appropriation for the homeless Indians of California * * * “
A later letter, dated April 1, 1946, from BIA Superintendent John G. Rockwell to the Commissioner of Indian Affairs describes the serious water situation at the Auburn Rancheria. Rockwell speaks of the Rancheria in terms that indicate that the BIA viewed and dealt with the Auburn Indians as an identifiable Indian band: ” The Auburn colony is an old colony consisting of from ten to twelve families. ” Rockwell recommended that the BIA provide the Auburn Band a water system ” because I know they need it badly, and I feel very definitely that these people will always live there. “
In 1917, the government acquired 20 acres of land in trust for the Auburn Band; another 20 acres was added in 1953. These 40 acres became known as the Auburn Indian Rancheria.
In 1934, Congress passed the Indian Reorganization Act ( ” IRA ” ), 25 U.S.C. § 671 et seq., which marked a dramatic shift in Federal Indian policy away from the assimilation of Indian peoples to support for tribal self-government. As part of the IRA’s mandate, the Bureau of Indian Affairs (BIA) conducted elections among Indian tribes to allow each tribe to accept or reject the tribal reorganization provisions of the IRA. In 1935, by a vote of 16 ” for ” and 5 ” against “, with a voting population of 36 adult members, and Auburn Band rejected the IRA.
The BIA has asserted that the Auburn Band was never dealt with by the government as a Federally recognized tribe, but was simply an aggregation of Indians residing on a common land base. This position was recently rejected by the Interior Board of Indian Affairs (BIA) in United Auburn Indian Community v. Sacramento Area Director, BIA IBIA 92-186-A, 24 IBIA 33 (decided May 28, 1993). In its decision, the IBIA determined that the fact that the BIA had allowed the Indian community of the Auburn Rancheria to vote on whether to accept or reject the tribal reorganization provisions of the IRA was the most important fact confirming that the Rancheria was considered to be a Federally recognized tribe prior enactment of the Rancheria Act. Id., 24 IBIA 41-42.
The Auburn Rancheria was one of the forty-one California Indian rancherias targeted for termination under the Rancheria Act. The background of the termination of the Auburn Rancheria and its immediate effect on the members of the Auburn Indian Community were the subject of a master’s Thesis prepared by Harry J. Busselen, Jr., in 1962. Busselen’s study provides a valuable contemporaneous account of the problems of termination, focusing specifically on the Auburn Rancheria at a time subsequent to approval of the Distribution Plan for the Rancheria, but prior to the Rancheria’s eventual termination in 1967. Busselen concluded that “most of the Indians on the Auburn Rancheria are not at this time prepared for federal termination “; that BIA services to the Rancheria were woefully inadequate, and that ” the end result of most of them will be the loss of their property. “
Despite these problems, the BIA pressed for termination, presenting it as a best option for the Auburn Indians. On August 13, 1959, the Distribution Plan for the Auburn Rancheria was approved by the commissioner of Indian Affairs; however, termination of the Auburn Rancheria under the Rancheria Act was not completed until August 11, 1967.
Less than three years later, on April 7, 1970, a class action lawsuit, Taylor v. Morton. Civ. No. C-70-719 SAW (N.D. Cal.), was brought by members of the Auburn Indian Community seeking to compel the government to comply with provisions of the Act requiring installation of an adequate water system. The legal effect of this case is that only those persons named as distributees in the Auburn Rancheria Distribution Plan have been legally adjudicated as terminated Indians. The dependent members, who constitute the large majority of tribal members, were not terminated and today retain their status as Indians and have asserted their right to recognition as the descendants of the historic band of Auburn Indians for whom the Auburn Rancheria was originally acquired.
The residents of the Rancheria belong mainly to the Southern Maidu or Hill Nisenan and Miwok and Tehama tribes of California Indians. The Auburn area is at the southern reach of the aboriginal territory of the Maidu where it adjoined the aboriginal territory of the Miwok. This probably accounts for the fact that mostof the members of the Tribe are Maidu or Miwok descent. However, two California Indians of Pomo and Wailaki Indian descent, respectively, intermarried with members of the Tribe and were subsequently listed on the distribution roll prepared by the Bureau of Indian Affairs on August 13, 1959 pursuant to Public Law 85-671.
On July 20, 1991, descendants of the historic Auburn Band adopted the Constitution of the United Auburn Indian Community and thereafter, on August 30, 1991, presented it to the BIA with a request that the Bureau ” formally recognize the United Auburn Indian Community of the Auburn Rancheria. “
During the 102nd session of Congress, the House passed language which would have restored federal recognition of the Auburn Indian Community as part of H.R. 2144, the Advisory council on California Indian Policy Act. H.R. 2144 was referred to the Senate Committee on Indian Affairs on September 10, 1992, during the waning weeks of the second session of the 102nd Congress. To ensure passage of the Advisory Council on California Indian Policy Act, Public Law 102-416, Title I, which would have restored the federal trust relationship of the United Auburn Community was deleted.
The Auburn Indian Community has obtained local government support for restoration of its federally recognized status. Both the City of Auburn and the County of Placer have approved resolutions supporting restoration of the Community and the return of the Rancheria lands to trust status.
Today, approximately 52 members of the Community reside on the Auburn Rancheria. There are approximately 22 acres of the original 40 acres of Rancheria land remaining in Indian ownership. The total membership of the Community, based on current enrollment records, is approximately 170. A small community church on the Rancheria serves as a main focal point for many of the Community’s activities. While some of the Indian residents have improved their economic status over the years since termination, a significant number live in conditions of grinding poverty. Despite these obstacles, the Community successfully resisted, through an aggressive grass-roots voter registration effort, an attempt by the city of Auburn in 1989 to annex the Rancheria lands.
The Community has exhausted its efforts to obtain a resolution of its tribal status through the administrative channels of the Federal government. The IBIA’s decision concludes that ” the Department of the Interior lacks authority to restore recognition. The relief (the Community) seeks can only be given by Congress. ” 24 IBIA 47-48.
LEGISLATIVE HISTORY
On April 14, 1994, Representative George Miller introduced H.R. 4228, the Auburn Indian Restoration Act. The Subcommittee on Native American Affairs held a hearing on H.R. 4228 on May 17, 1994. On June 30, 1994, the Subcommittee considered and unanimously passed a substitute amendment to H.R. 4228, which was reported to the committee on Natural Resources. On July 20, 1994, the Committee on Natural Resources considered H.R. 4228 and ordered it reported to the House with an amendment. The House of Representatives passed H.R. 4228 on July 25, 1994.
On July 26, 1994, H.R. 4228 was referred to the Senate Committee on Indian Affairs for consideration.
Summary of H.R. 4228-the Auburn Indian Restoration Act
H.R. 4228, the ” Auburn Indian restoration Act, ” provides for the restoration of federal recognition to the Auburn Indian Community of the Auburn Rancheria of California. The bill restores all the rights and privileges under treaties, executive orders, agreements, or statutes or under any other authority which were diminished or lost under the Act which terminated the tribe in 1958. All federal services and benefits furnished to federally recognized Indian tribes are to be provided to the United Auburn Indian Community upon enactment. An economic development plan is to be developed for the community under the bill.
The tribe is authorized to acquire land and to have it placed in federal trust status. It should be noted that the implementation of the Rancheria Act resulted in the division and distribution of rancheria lands formerly held in tribal or community ownership. Distribution was made to individual Indians and to associations of Indians established under California law. These associations, which were composed of those persons named as distributees in the rancheria distribution plan, took title to the rancherias’ water storage and distribution systems and any additional lands intended to be held in community ownership.
On the Auburn Rancheria, the White Oak Ridge Association was formed and took title to the rancheria water system, the land on which a small church is located, and a communal park area. The remaining lands of the Rancheria were distributed to individual Indians of the Rancheria. This Act allows those distributees or dependent members who presently own land on the Rancheria, or their Indian heirs or successors in interest, to return their lands to trust status. Similarly, the lands held by the White Oak Ridge Association could be returned to trust status. Title to the lands returned to trust status would be held by the United States in trust for the individual Indian or, in the case of the communally-held lands of the White Oak Ridge Association, in trust for the Tribe or tribal entity. These lands, once placed in trust, would become part of the Tribe’s reservation.
The bill provides for the compilation of a tribal membership roll, and it also provides for the adoption of a constitution pursuant the Indian Reorganization Act (IRA). The Committee notes that the Auburn Indian Community rejected the IRA in 1935. However, the Committee has consulted with the United Auburn Indian Community and is satisfied that the Community is amenable to working within the framework of the IRA as it reorganizes after restoration legislation is enacted.
Committee Recommendation and Tabulation of Vote
In an open business session, on August 10, 1994, the Committee on Indian Affairs considered H.R. 4228 and the bill was ordered reported by a majority vote of a quorum present, with a recommendation that the bill, as amended, be passed by the Senate.
Section 1. Short title:
Section 1 cites the short title as the ” Auburn Indian Restoration Act “.
Section 2. Restoration of Federal recognition, rights and privileges:
Subsection (a) provides that Federal recognition is extended to the Tribe, and all laws of general application to Indians shall apply to the tribe and its members.
Subsection (b) provides that all rights and privileges of the Tribe under Federal law which were diminished or lost under the termination act of 1958 are restored and the provisions of the 1958 Act are inapplicable to the Tribe after enactment.
Subsection (c) provides that the Tribe and its members shall be eligible for all Federal services provided to Federally recognized tribes after enactment, and members living in the Tribe’s service area shall be deemed to be residing on the reservation.
Subsection (d) provides that nothing in this Act expands or reduces hunting, fishing, gathering or water rights of the Tribe or its members.
Subsection (e) provides that the Indian Reorganization Act shall apply to the Tribe.
Subsection (f) provides that nothing in this Act alters any property or contractual right or obligation, or any obligation for taxes levied.
Section 3. Economic development:
Subsection (a) provides that the Secretary shall (1) negotiate with the Tribe with respect to establishing a plan for economic development; (2) develop such a plan not later than 2 years after adoption of a tribal constitution; and (3) submit the plan to congress.
Subsection (b) provides that any proposed transfer of real property in the plan shall be consistent with Section 4.
Section 4. Transfer of land to be held in trust:
Subsection (a) provides that the Secretary shall accept real property into trust for the tribe in Placer County, California, provided there are no adverse legal claims on the land; and the Secretary may also accept land into trust that is within the Tribe’s service area pursuant to the Indian Reorganization Act.
Subsection (b) provides that communally held lands held by the White Oak Ridge Association and Indian owned fee land shall be eligible for trust status.
Subsection (c) provides that real property transferred to the secretary for the Tribe shall be part of the Tribe’s reservation.
Section 5. Membership rolls:
Subsection (a) provides that within a year of enactment, the Secretary shall compile a membership roll in consultation with the Tribe.
Subsection (b)(1) provides that until the constitution is adopted, an individual shall be placed on a membership roll if they are living, not a member of another tribe, are of Auburn Indian ancestry, possesses one-eighth or more Indian blood quantum and (A) their name is on the 1959 distribution roll, (B) they were not on the 1959 roll but were eligible, or (C) the person is a lineal descendant of an individual on the 1959 roll.
Subsection (b)(2) provides that after the constitution is adopted it shall govern tribal membership, and Auburn members may not be members of other tribes.
Subsection (c) provides that the Secretary shall accept any available evidence establishing Auburn Indian ancestry, and information contained in the 1959 distribution list shall be conclusive evidence.
Section 6. Interim government:
Section 6 provides that until a constitution and bylaws are adopted, the Interim Council shall be the governing body of the Tribe. The members of the Interim Council shall be the Executive Council of the Tribe pursuant to its 1991 constitution.
Section 7. Tribal constitution:
Subsection (a) provides that upon the completion of the tribal roll and upon the written request of the Interim council, the Secretary shall conduct an election to adopt a constitution and bylaws for the Tribe pursuant to the Indian Reorganization Act.
Subsection (b) provides that within 120 days after the Tribe adopts a constitution, the secretary shall conduct an election of tribal officials pursuant to the constitution.
Section 8. Definitions:
Section 8 provides definitions for terms used in the Act.
Section 9. Regulations:
Section 9 provides that the Secretary may promulgate regulations to carry out the provisions of the Act.
The cost and budgetary impact of H.R. 4228, as evaluated by the Congressional Budget Office, is set forth below:
U.S. CONGRESS
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, August 11, 1994.
Hon. DANIEL K. INOUYE,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed H.R. 4228, the Auburn Indian Restoration Act, as ordered reported by the Senate Committee on Indian Affairs on August 10, 1994. CBO estimates that implementing this legislation would cost the federal government between $3 million and $4 million over the 1995-1999 period, if the tribe receives services and benefits at the national average per-capita rate. Enactment of H.R. 4228 would not affect direct spending or receipts. Therefore, pay-as-you-go procedures would not apply.
H.R. 4228 would restore federal recognition of the United Auburn Indian community of the Auburn Rancheria of California. Although the act does not specifically authorize the appropriation of funds, it would make members of the tribe eligible for all services and benefits available to federally recognized Indian tribes. Currently, the tribe is not receiving benefits as a federally recognized tribe. Thus, relevant federal agencies would be required to include members of the tribe among those eligible for benefits and may seek additional funds in order to provide such benefits. CBO estimates that the average annual cost of services and benefits provided nationally is about $3,500 per eligible tribal member. Based on an estimated tribal enrollment totaling about 150, we estimate that H.R. 4228 could result in annual costs of approximately $500,000 to the federal government.
H.R. 4228 also would require that Secretary of the Interior to negotiate with the tribe to prepare an economic development plan. Based on the costs of economic plans for other tribes, CBO estimates that this provision would result in costs of less than $300,000 over the 1995-1999 period.
The act also would require the tribe to document and maintain a list of members and to adopt a constitution and by-laws. The Bureau of Indian Affairs (BIA) would assist the tribe in this effort. Based on information from the BIA, we expect that the cost of providing such services to the newly recognized tribe would total less than $1 million over the 1995-1997 period.
CBO estimates that enactment of H.R. 4228 would have no significant effect on the budgets of state or local governments.
If you wish further details on this estimate, we will be pleased to provide them the CBO staff contact is Rachel A. Robertson.
Sincerely,
JAMES L. BLUM
(For Robert D. Reischauer, Director)
Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires each report accompanying a bill to evaluate the regulatory paperwork impact that would be incurred in carrying out the bill. The Committee believes that H.R. 4228 will have no regulatory or paperwork impact.
A representative of the Secretary of the Interior testified at the House Subcommittee on Native American Affairs hearing on May 17, 1994, in support of H.R. 4228. A full copy of the written testimony of the Administration witness at the May 17, 1994 hearing is set forth below:
STATEMENT OF DEBRA MADDOX, ACTING DIRECTOR, OFFICE OF TRIBAL SERVICES, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
Good morning, Mr. Chairman, and Members of the Committee. I am pleased to present the views of the Department of the Interior on H.R. 4228, a bill which will restore the Federal trust relationship to the United Auburn Indian Community of the Auburn Rancheria of California.
We support the enactment of H.R. 4228. Because the Rancheria was terminated, it is not allowed to proceed in the administrative acknowledgement process. However, because of the unique circumstances affecting California tribes, individual members of the tribe are still eligible to receive services from the Bureau of Indian Affairs. Therefore, we believe that those individuals should have a recognized governing body with which we can deal on a government-to-government basis. However, we do have some concerns.
Section 2(a) of H.R. 4228 makes laws of general application to all tribes also apply to Auburn. Section 2(e) of H.R. 4228 makes the Indian Reorganization Act applicable to the Tribe and its members. We strongly urge the committee to clarify the intent of these provisions. Specifically, Section 18 of the IRA provides:
The Act shall not apply to any reservation wherein a majority of the adult Indians voting in a special election duly called by the Secretary of the Interior shall vote against its application.
On June 14, 1935, Auburn voted against the IRA. The Department understands that H.R. 4228 when enacted will supersede the tribe’s original vote against the IRA. However, do sections 2(a) and 2(e) of the bill intend to give the tribe the option under Section 18 of the IRA, once again, to vote against the IRA? Or does Section 2(e) intend to pre-empt the tribe’s option to invoke Section 18 of the IRA so that the tribe must be an ” IRA Tribe “? The Department does not recommend one interpretation over the other but we strongly urge that these provisions be clarified.
In Section 4(d) of H.R. 4228, the words ” or its members ” should be added after the word ” tribe ” on line 13 so that any lands taken into trust for individuals shall also be exempt from taxation by the State or its political subdivisions.
Section 7 of the bill recognizes an Interim Council and states that this body shall operate under a constitution adopted July 20, 1991. Since this constitution has not been reviewed by the Department, we recommend that the phrase ” As long as it is not contrary to Federal law ” be added after the year ” 1991 “.
This concludes my prepared statement. I would be pleased to answer any questions the Committee may have.
At the time of this printing, the committee has not received a report from the Department of the Interior or any other agency of the federal government providing additional views concerning H.R. 4228.