89TH CONGRESS 2d Session } SENATE { REPORT No. 1703 AUTHORIZING LONG-TERM LEASES ON THE SAN XAVIER AND SALT RIVER PIMA-MARICOPA INDIAN RESERVATIONS, ARIZ. OCTOBER 10, 1966.-Ordered to be printed Mr. JACKSON, from the Committee on Interior and Insular Affairs, submitted the following REPORT [To accompany H.R. 7648] The Committee on Interior and Insular Affairs, to which was referred the bill (H.R. 7648) to authorize long-term leases on the San Xavier and Salt River Pima-Maricopa Indian Reservations, and for other purposes, having considered the same, reports favorably thereon with amendments and recommends that the bill as amended do pass. The amendments are as follows: On page 3, line 19, strike the word "on" and insert the word "in". On page 6, beginning at line 11, strike all of section 10. On page 8, line 5, strike all of subsection (a) and redesignate the remaining subsections. On page 9, line 13, renumber section 13 as section 51. PURPOSE The primary purpose of H.R. 7648, as amended, is to provide longterm leasing authority for tribal and individual lands of the San Xavier and Salt River Pima-Maricopa Indian Reservations in Arizona for public, religious, educational, recreational, residential, business, farming, or grazing purposes. NEED The San Xavier and Salt River Pima-Maricopa Reservations are adjacent to the cities of Tucson and Phoenix, respectively, two of the most rapidly expanding cities in the Southwest. In both instances the close proximity of city and reservation has created opportunities for profitable use of the Indian land if it can be leased for sufficiently long terms. The maximum permissible term for which Indian land may be eased under existing general law is 25 years with a right of renewal for another 25 years. The Palm Springs, Navajo, Dania, Southern Ute, Colorado River, Fort Mojave, and Pyramid Lake Reservations have been granted longer lease terms because the 25-year authority is not sufficiently long to permit development loans in some instances and a clear 50-year minimum period plus an allowance of time for negotiations and construction is frequently required. In all of the instances just cited, legislative authority to lease for up to 99 years has been granted. H.R. 7648 does the same for the two reservations to which it applies, with, however, a limit of 40 years in the case of farming leases that require a substantial investment in the improvement of the land and 10 years in the case of grazing and other farming leases. The Secretary of the Interior will approve 99-year leases only if such extended period is absolutely essential. SECTION-BY-SECTION ANALYSIS Section 1 deals with the leasing of Indian trust and restricted lands, both tribal and individual, on the San Xavier and Salt River PimaMaricopa Reservations for all purposes except mining. The maximum term of any lease under this act will be 99 years. Grazing leases and leases for farming which require no substantial investment in improvement of the land will not exceed 10 years. Leases for farming which require a substantial investment in improvement of the land may run as much as 40 years. The Secretary of the Interior is enjoined not to approve any lease "with a term that is longer than is neces*to obtain maximum economic benefits for the Indian sary Section 2 requires that every lease entered into under the first section contain covenants against waste, nuisance, and the creation of hazards. It also provides for suits by the State of Arizona and its political subdivisions against lessees to prevent or abate violations of such covenants. Such a suit must first be brought in the U.S. District Court for the District of Arizona; if, however, that court finds that it lacks jurisdiction because the constitutional requirement that there be diversity of citzenship or that the case arise under the laws of the United States is not met, it may be brought in a court of the State Section 3, subsection (a), requires that the Secretary of the Interior advise municipalities adjacent to the San Xavier or Pima-Maricopa Reservations of the pendency of a lease for other than farming or grazing purposes 30 days before he approves it if, in his judgment, the lease will substantially affect their governmental interests. He is further required to consider any comments on the lease, insofar as its terms or absence of terms affect matters of municipal interest, that they may offer. These requirements are applicable only to leases under H.R. 7648, not to leases under other laws. The intent of Congress that the terms on which non-Indian development of land on these two reservations is undertaken shall, to the extent to which this is reasonably possible, be similar to those which State and local law imposes on the same sort of development in adjacent municipalities is stated in subsection (b). Section 4, by reference to the act of September 8, 1940 (54 Stat. 745, 25 U.S.C. 380), authorizes the superintendents of the two reservations to lease the lands of deceased Indians, except for oil and gas, if the heirs and devisees have not been determined or if, the heirs and devisees having been determined, the lands are not in use by them and they cannot agree within 3 months on the terms of a lease. The decision of the superintendent in any such case will, under the provisions of this section, be subject to appeal to the Secretary. Section 5 prohibits the payment and collection of rent more than 1 year of advance unless otherwise provided in the lease. Section 6 provides that the Secretary of the Interior shall approve no lease containing a provision "that will prevent or delay a termination of Federal trust reponsibilities" during the lease term. Section 7 authorizes the Indian owners of land on the San Xavier and Salt River Pima-Maricopa Reservations to dedicate land for various public purposes with the approval of the Secretary. The conditions under which this may be done will be similar to those under which dedications may be made elsewhere under the laws of Arizona. Consideration was given in committee to expand this section to cover the granting of rights-of-way for utilities, but this was found to be unnecessary in view of section 1 of the act of February 2, 1948 (62 Stat. 17, 25 U.S.C. 323). Section 8 authorizes the Papago Tribal Council and the Salt River Pima-Maricopa Community Council to contract with the State and its political subdivisions for water, sewerage, police, and other public services. In doing so, the council concerned must have the approval of the Secretary of the Interior. Section 9 of the bill as reported authorizes the Papago and PimaMaricopa councils, with the approval of the Secretary of the Interior and in the absence of State jurisdiction over the lands in question, to adopt building, zoning, and sanitary regulations. The councils are also authorized to contract with local authorities for assistance in preparing such regulations. Section 10 makes clear that the preceding sections of the bill do not (a) authorize the alienation, encumbrance, or taxation of trust or restricted lands; (b) extend State jurisdiction to determine the ownership of trust or restricted property; (c) modify the existing authority of public school districts to include the reservations within their boundaries; or (d) make inapplicable to the San Xavier and Salt River Pima-Maricopa Reservations other laws under which Indian lands may be leased and mortgaged. Section 11 forbids the Secretary of the Interior to approve developments under other provisions of the bill which would affect adversely the scenic, historic, and religious values of the Mission Xavier del Bac on the San Xavier Reservation. COMMITTEE AMENDMENTS The committee has amended the bill by deleting sections 9, 10, and 12(a) as passed by the House. Those sections related to the annexation of all or parts of the two reservations by adjacent municipalities, and the permanent or temporary extension of State jurisdiction over offenses committed on the reservations or causes of action arising on them where such was agreed to by the respective tribal council and the Secretary of the Interior. For the reasons cited in the communication relating to H.R. 7648 from the Department of Justice, the committee believes the State of Arizona should take affirmative action under the authority of section 7 of the act of August 15, 1953 (67 Stat. 590), relating to the assumption by the States of jurisdiction over criminal offenses and civil causes of action in Indian country. Further, it is the committee's recommendation that the Secretary of the Interior not approve leases on these reservations for terms beyond those presently authorized by law until the State of Arizona acts to assume jurisdiction under the authority of the 1953 act. DEPARTMENTAL REPORTS The letter from the Deputy Attorney General, dated September 30, 1966, is as follows: Hon. HENRY M. JACKSON, SEPTEMBER 30, 1966. Chairman, Committee on Interior and Insular Affairs, DEAR SENATOR: This is in response to your request for the views of the Department of Justice on H.R. 7648, a bill to authorize longterm leases on the San Xavier and Salt River Pima-Maricopa Indian Reservations, and for other purposes, as passed by the House of Representatives on September 6, 1966. The bill would authorize the leasing, with the approval of the Secretary of the Interior, of restricted tribal and individually owned lands on the San Xavier and Salt River Pima-Maricopa Reservations in the State of Arizona for public, religious, educational, recreational, residential, business, farming or grazing purposes, for periods up to 99 years. This basic objective of the bill is not a matter for which the Department of Justice has primary responsibility and accordingly we make no recommendation in that regard. However, for the reasons given below we are opposed to the provisions of sections 9, 10, and 12(a) of the bill and recommend their deletion. Section 10 of the bill would permit the State of Arizona, as authorized by the Secretary of Interior and the Papago Council or the Salt River Pima-Maricopa Community Council, to assume "permanently or for a limited period of time" all or any part of the civil or criminal jurisdiction over all or any portion of the San Xavier and Salt River Pima-Maricopa Reservations. Section 9 of the bill would authorize municipalities in the vicinity of the reservations, with the consent of the Papago Council or the Salt River Pima-Maricopa Community Council, and the approval of the Secretary of Interior, to annex all or any portion of the reservations and, if it does so, to extend over such areas all or any part of their municipal laws and ordinances. The act of August 15, 1953, as amended (Public Law 280, 83d Cong; 67 Stat. 588; 18 U.S.C. 1162 and 28 U.S.C. 1360), authorizes the States to assume civil and criminal jurisdiction over Indian country within their borders. Section 10 of the bill would, in effect, supersede Public Law 280 with respect to the San Xavier and Salt River Pima-Maricopa Reservations and permit the State of Arizona, with the consent of the Papago Council or the Salt River PimaMaricopa Community Council and the Secretary of the Interior, to assume piecemeal civil and criminal jurisdiction over the reserva tions, both territorial and subject matter. In other words, it would authorize the State to assume jurisdiction over certain crimes or causes of action if they were committed or arose at certain places on the reservations or on certain classes of lands. It also would authorize the State to assume such jurisdiction permanently or for a limited period of time. Additionally, section 9 of the bill would authorize the annexation of all or any portions of the reservations by municipalities located in the vicinity and the piecemeal extension of their local laws and ordinances over such areas. The bill, therefore, would authorize an especially aggravated kind of piecemeal jurisdiction, not only by State assumptions but by assumptions of its subdivisions as well. By permitting such assumptions to be initially limited as to time, it also contemplates retrocessions. Although we question the wisdom of authorizing "piecemeal" assumptions of either civil or criminal jurisdiction, we are more concerned with, and are opposed to, such assumptions of jurisdiction, either territorial or subject matter, in the criminal area. Prior to the enactment of section 1151, title 18, which defines "Indian Country" a species of "piecemeal" criminal jurisdiction obtained. It was primarily to remedy the confusion which had resulted that section 1151 was enacted. Experience has shown that in the criminal sphere divided jurisdiction and responsibility is to be avoided as much as possible. Its existence always creates uncertainty and frequently hiatuses. Since the enactment of section 1151 the field of criminal jurisdiction in the Indian country has been fairly settled. It would be extremely unwise to reopen it to the confusion that formerly existed. We also are opposed to the provisions of the bill which would permit the executive branch of the Government to accept retrocessions of jurisdiction. Public Law 280 was intended to promote the policy of integrating Indian tribes into the States where they are located. As section 7 of that law indicates, cessions of jurisdiction by the United States were intended to be final, obligatory and binding. Moreover, retrocessions of jurisdiction where the Federal interest and responsibility is so vitally involved should be effected only by the action of Congress. Retrocessions of jurisdiction could create vacuums where neither State nor Federal laws would apply, and the Congress should review and reinstate necessary Federal law with any retrocessions. Section 12(a) of the bill assumes the existence in the Indian tribes or individual members, with the approval of the Secretary of Interior, of the authority to provide for the extension of some or all of the State and county zoning ordinances, housing codes and health and sanitation laws to the areas leased under the bill. We know of no such authority beyond that which may be contained in the bill. In these circumstances, subsection 12(a) would create confusion particularly if sections 9 and 10 of the bill are eliminated. Subsection 12 (a) should therefore be deleted. The Bureau of the Budget has advised that there is no objection to the submission of this report from the standpoint of the administration's program. Sincerely, RAMSEY CLARK, Deputy Attorney General. |