[House Report 118-197]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 118-197
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WOUNDED KNEE MASSACRE MEMORIAL AND
SACRED SITE ACT
_______
September 14, 2023.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Westerman, from the Committee on Natural Resources, submitted the
following
R E P O R T
[To accompany H.R. 3371]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 3371) to direct the Secretary of the Interior to
complete all actions necessary for certain land to be held in
restricted fee status by the Oglala Sioux Tribe and Cheyenne
River Sioux Tribe, and for other purposes, having considered
the same, reports favorably thereon without amendment and
recommends that the bill do pass.
PURPOSE OF THE LEGISLATION
The purpose of H.R. 3371 is to direct the Secretary of the
Interior to complete all action necessary for certain land to
be held in restricted fee status by the Oglala Sioux Tribe and
Cheyenne River Sioux Tribe, and for other purposes.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 3371 would place approximately 40 acres of fee land
located within the Pine Ridge Indian Reservation, into
restricted fee status for the Oglala Sioux tribe and Cheyenne
River Sioux tribe. Restricted fee land contains the same
restrictions against alienation and taxation as land held in
trust, but title is not held by the federal government. The
land to be placed into restricted fee status is to be held as a
Lakota sacred site and memorial. The memorial honors the more
than 350 Indian men, women and children killed in the Wounded
Knee Massacre in 1890, which occurred on and near the land that
would be placed into restricted fee status by the legislation.
Both the Oglala Sioux tribe and the Cheyenne River Sioux
tribe are constituent tribes of the Great Sioux Nation, which
the tribes refer to as ``Oceti Sakowin,'' meaning ``Seven
Council Fires'' in the Lakota language. The Oceti Sakowin is
composed of the Dakota (Santee), Lakota (Teton), and Nakota
(Yankton). The names Dakota, Lakota, and Nakota mean
``friends'' or ``relatives,'' and together, the Dakota, Lakota,
and Nakota are the ``alliance of friends'' or ``alliance of
relatives.''\1\
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\1\Frank Star Comes Out, Testimony Before the Committee on Natural
Resources, Subcommittee on Indian and Insular Affairs, U.S. House of
Representatives (Jun. 7, 2023).
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The Great Sioux Nation and the United States signed the
Treaty of Fort Laramie in 1868.\2\ This treaty was ratified by
the U.S. Senate and provided that a large land base, including
western South Dakota was ``set apart for the absolute and
undisturbed use and occupation'' of the Great Sioux Nation as a
``permanent home.''\3\ In 1889, the Great Sioux Reservation was
divided by the Act of March 2, 1889, into six separate
reservations in North and South Dakota.\4\
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\2\15 Stat. 635.
\3\Fort Laramie Treaty of 1868, 15 Stat. 635, arts. 2, 7.
\4\Act of March 2, 1889, 25 Stat. 888.
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The Pine Ridge Indian Reservation, established when the
Great Sioux Reservation was divided in 1889, is home to the
Oglala Sioux tribe, whose current tribal enrollment is
approximately 46,855 members.\5\
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\5\Bureau of Indian Affairs, Pine Ridge Agency, https://
www.bia.gov/regional-offices/great-plains/south-dakota/pine-ridge-
agency.
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The Cheyenne River Sioux tribe has approximately 26,404
tribal members.\6\ The Cheyenne River Indian Reservation was
also established by the Act of March 2, 1889.
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\6\Cheyenne River Sioux tribe Enrollment Office, Enrollment
Membership (Aug. 16, 2023).
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In 1889 and 1890, the Ghost Dance movement grew among the
plains Indians.\7\ Many native people believed the Ghost Dance
would return land back to the Indians, bringing about a renewal
of Native society.\8\ Many danced for renewal and restoration
of native people, land, and buffalo. The Ghost Dance was
alarming to federal Indian agents, white settlers, and the
United States Army, because the religious ceremony was
misunderstood as threatening.\9\
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\7\Veronica E. Velarde Tiller, Tiller's Guide to Indian Country,
2nd ed. at 915.
\8\Stephanie Hall, ``James Mooney Recordings of American Indian
Ghost Dance Songs, 1894,'' Library of Congress, Folklife Today blog,
Nov. 17, 2017. Available at: https://blogs.loc.gov/folklife/2017/11/
james-mooney-recordings-ghost-dance-songs/.
\9\See Louis S. Warren, ``The Lakota Ghost Dance and the Massacre
at Wounded Knee,'' PBS, American Experience, Apr. 16, 2021. Available
at: https://www.pbs.org/wgbh/americanexperience /features/american-oz-
lakota-ghost-dance-massacre-wounded-knee/; Stephanie Hall, ``James
Mooney Recordings of American Indian Ghost Dance Songs, 1894,'' Library
of Congress, Folklife Today blog, Nov. 17, 2017. Available at: https://
blogs.loc.gov/folklife/2017/11/james-mooney-
recordings-ghost-dance-songs/.
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On December 28, 1890, Chief Spotted Elk (Big Foot) and his
Mnicoujou band were stopped by the U.S. Army's Seventh Cavalry
on their way to Pine Ridge.\10\ Major Samuel M. Whitside
ordered Chief Spotted Elk and his people to camp near Wounded
Knee Creek.\11\ Chief Spotted Elk objected and told him that
they were headed to Pine Ridge and would camp there.\12\
Whitside refused and ordered them to camp at Wounded Knee
overnight.\13\
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\10\Hall, supra note 8; Rex Alan Smith, Moon of the Popping Trees
Ch. 13 (1981).
\11\Smith, supra note 10.
\12\Smith, supra note 10.
\13\Smith, supra note 10.
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On the morning of December 29, 1890, under the direction of
Colonel James W. Forsyth, the U.S. Army Seventh Calvary
soldiers disarmed the Lakota men and older boys, who were lined
up in front of the armed soldiers.\14\ Black Coyote, a deaf man
and the last to be disarmed, was seized by soldiers. A struggle
ensued and a shot went off in the air.\15\ The U.S. Army
Seventh Cavalry opened fire on Chief Spotted Elk's band and his
members.\16\
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\14\Smith, supra note 10.
\15\Hall, supra note 8; Smith, supra note 10.
\16\Smith, supra note 10.
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General Nelson A. Miles, the commanding officer of the
Military Division of the Missouri in the U.S. Army, later
described the Wounded Knee massacre as ``the most abominable,
criminal military blunder and a horrible massacre of women and
children.''\17\ Years later, General Miles told the
Commissioner of Indian Affairs that the massacre was ``most
reprehensible,'' ``most unjustifiable,'' and ``worthy of the
severest condemnation.''\18\
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\17\General Miles Letter to Mary Miles, Jan. 15, 1891, quoted in
Virginia Johnson, The Unregimented General: A Biography of Nelson A.
Miles 294 (Boston, 1962).
\18\General Miles Letter to Commissioner of Indian Affairs, Mar.
13, 1917, quoted in Elain Goodale Eastman, The Ghost Dance War and
Wounded Knee Massacre of 1890-91, Nebraska History, XXVI 39 (Jan.-Mar.
1945).
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In Senate Concurrent Resolution 153 of the 101st Congress
(Oct. 25, 1990), the United States Congress acknowledged the
``tragedy'' and ``historical significance'' of the Wounded Knee
Massacre and expressed its ``deep regret to the Sioux people
and in particular to the descendants of the victims and
survivors for this terrible tragedy.'' Congress found that, on
December 29, 1890, the United States Cavalry engaged in ``armed
conflict'' against Sioux Indians gathered at Wounded Knee,
``resulting in the tragic death and injury of approximately
350-375 Indian men, women, and children.''
In October 2022, the Oglala Sioux tribe and Cheyenne River
Sioux tribe jointly purchased 40 acres of land where an old
trading post was located. The 40 acres contains a portion of
the area where the Wounded Knee Massacre took place. On October
21, 2022, both tribes signed a covenant, stating that this
property shall be held and maintained as a memorial and sacred
site without commercial development.\19\
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\19\``Covenant Between the Oglala Sioux tribe and the Cheyenne
River Sioux tribe Concerning the Czywczynski Property at Wounded Knee''
Oct. 21, 2022. Available at: https://republicans-
naturalresources.house.gov/UploadedFiles/
Covenant_Between_Oglala_and_Cheyenne_River_Siou x_Tribes.pdf.
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H.R. 3371 would place these 40 acres into restricted fee
status for both the Oglala Sioux tribe and the Cheyenne River
Sioux tribe. The bill also confirms that the 40 acres will be
subject to the civil and criminal jurisdiction of the Oglala
Sioux tribe, and places restrictions on alienation and taxation
of the land. In accordance with the tribe's mutual covenant
prohibiting commercial development, gaming pursuant to the
Indian Gaming Regulatory Act\20\ will be prohibited.
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\20\25 U.S.C 2701 et seq.
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COMMITTEE ACTION
H.R. 3371 was introduced on May 16, 2023, by Rep. Dusty
Johnson (R-SD). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Indian and Insular Affairs. On June 7, 2023, the
Subcommittee on Indian and Insular Affairs held a hearing on
the bill. On June 13, 2023, the Committee on Natural Resources
met to consider the bill. The Subcommittee on Indian and
Insular Affairs was discharged from further consideration of
H.R. 3371 by unanimous consent. The bill was then ordered
favorably reported to the House of Representatives by unanimous
consent.
HEARINGS
For the purposes of clause 3(c)(6) of House rule XIII, the
following hearing was used to develop or consider this measure:
hearing by the Subcommittee on Indian and Insular Affairs held
on June 7, 2023.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 establishes the short title of the bill as the
``Wounded Knee Massacre Memorial and Sacred Site Act.''
Section 2. Definitions
Section 2 defines restricted fee status, provides the legal
description for the land to be placed into restricted fee
status; states both the Oglala Sioux tribe and Cheyenne River
Sioux tribe are the tribes defined in statue.
Section 3. Land held in restricted fee status by the tribes
Section 3 requires that within one year, the Secretary of
the Interior shall take all actions necessary to place the
approximately 40 acres of land in restricted fee status so both
the Oglala Sioux tribe and Cheyenne River Sioux tribe retain
title to the land; subjects the land to tribal and federal laws
relating to Indian land, including the 1868 Treaty, and
recognizes that the covenant between the tribes preserving the
land as a sacred site and memorial applies to the land; allows
for existing encumbrances to continue; and in accordance with
the covenant, prevents commercial development, including
gaming, on the land.
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:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 3371 would direct the Department of the Interior (DOI)
to place approximately 40 acres of land owned by the Oglala
Sioux and Cheyenne River Sioux Tribes in restricted fee status.
The two Tribes would retain ownership of the land, and the land
could not be transferred without the consent of the Congress
and the tribes. H.R. 3371 would limit the use of the land to a
memorial and sacred site and prohibit commercial development
and gaming activity as outlined in a covenant signed in October
2022. The bill also would require DOI to make any necessary
corrections to the survey and legal description of the land.
Using information from the department, CBO estimates that the
administrative costs to implement H.R. 3371 would not be
significant.
H.R. 3371 would impose an intergovernmental mandate as
defined in the Unfunded Mandates Reform Act (UMRA). The bill
would prohibit state and local governments from taxing land
placed into restricted fee status for the Oglala Sioux Tribe
and the Cheyenne River Sioux Tribe. Reported information on the
market value of the land indicates that those forgone revenues
would be well below the annual intergovernmental threshold
established in UMRA ($99 million in 2023, adjusted annually for
inflation).
The bill contains no private-sector mandates.
The CBO staff contact for this estimate is Julia Aman (for
federal costs) and Rachel Austin (for mandates). The estimate
was reviewed by H. Samuel Papenfuss, Deputy Director of Budget
Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
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 direct the Secretary of the
Interior to complete all action necessary for certain land to
be held in restricted fee status by the Oglala Sioux Tribe and
Cheyenne River Sioux Tribe, 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.
UNFUNDED MANDATES REFORM ACT STATEMENT
According to the Congressional Budget Office, H.R. 3371
would impose an intergovernmental mandate as defined in the
Unfunded Mandates Reform Act. The bill would prohibit state and
local governments from taxing land placed into restricted fee
status for the Oglala Sioux Tribe and the Cheyenne River Sioux
Tribe. According to CBO, reported information on the market
value of the land indicates that those forgone revenues would
be well below the annual intergovernmental threshold
established in the Unfunded Mandates Reform Act, which is $99
million in 2023, adjusted annually for inflation. According to
CBO, the bill contains no private-sector mandates.
EXISTING PROGRAMS
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.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
CHANGES IN EXISTING LAW
As ordered reported by the Committee on Natural Resources,
H.R. 3371 would make no changes in existing law.
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