    [Senate Hearing 108-584]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 108-584

       DEPARTMENT OF THE INTERIOR AND THE DEPARTMENT OF HEALTH AND HUMAN
                      SERVICES TRIBAL SELF-GOVERNANCE ACT

    =======================================================================

                                    HEARING

                                   BEFORE THE

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 SECOND SESSION

                                       ON

                                    S. 1715

                                    S. 1696

    TO AMEND THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT TO
                PROVIDE FURTHER SELF-GOVERNANCE BY INDIAN TRIBES

                                   __________

                                MAY 12, 19, 2004
                                 WASHINGTON, DC

                        U.S. GOVERNMENT PRINTING OFFICE
    93-687                      WASHINGTON : DC
    ____________________________________________________________________________
    For Sale by the Superintendent of Documents, U.S. Government Printing Office
    Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800
    Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001

                          COMMITTEE ON INDIAN AFFAIRS

                  BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

                    DANIEL K. INOUYE, Hawaii, Vice Chairman

    JOHN McCAIN, Arizona,                KENT CONRAD, North Dakota
    PETE V. DOMENICI, New Mexico         HARRY REID, Nevada
    CRAIG THOMAS, Wyoming                DANIEL K. AKAKA, Hawaii
    ORRIN G. HATCH, Utah                 BYRON L. DORGAN, North Dakota
    JAMES M. INHOFE, Oklahoma            TIM JOHNSON, South Dakota
    GORDON SMITH, Oregon                 MARIA CANTWELL, Washington
    LISA MURKOWSKI, Alaska

             Paul Moorehead, Majority Staff Director/Chief Counsel

            Patricia M. Zell, Minority Staff Director/Chief Counsel

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page

                                  May 12, 2004

    S. 1715, text of.................................................     3
    Statements:
        Anderson, Dave, assistant secretary for Indian Affairs,
          Department of the Interior.................................    56
        Baker-Shenk, Phil, Holland and Knight LLP, Washington, DC....    68
        Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
          chairman, Committee on Indian Affairs......................     1
        Matt, Fred, chairman, Confederated Salish and Kootenai
          Tribes, Flathead Reservation...............................    62
        Sinclair, William, director, Office of Self-Governance and
          Self-Determination, Department of the Interior.............    56
        Strommer, Geoffrey, Hobbs, Strauss, Dean and Walker, on
          behalf of the Council of Athabascan Tribal Governors.......    65

                                    Appendix

    Prepared statements:
        Anderson, Dave (with attachment).............................    79
        Baker-Shenk, Phil............................................    86
        Matt, Fred (with attachment).................................    95
        Stevens, Ben, self-governance coordinator council of
          Athabascan Tribal Governments (with attachment)............   112

                                  May 19, 2004

    S. 1696, text of.................................................   122
    Statements:
        Allen, Ron, chairman, Jamestown S'Klallam Tribal Council
          (with attachment)..........................................   143
        Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
          chairman, Committee on Indian Affairs......................   121
        Kashevaroff, Don, president/chairman, Alaska Native Tribal
          Health Consortium..........................................   141
        Peercy, Mickey, executive director, Management and
          Operations, Choctaw Nation, Oklahoma.......................   147
        Windy Boy, Alvin, chairman, Chippewa Cree Business Committee.   146

                                    Appendix

    Prepared statements:
        Allen, Ron (with attachment).................................   158
        Kashevaroff, Don.............................................   155
        Peercy, Mickey...............................................   170
        Windy Boy, Alvin.............................................   175

               DEPARTMENT OF INTERIOR TRIBAL SELF-GOVERNANCE ACT

                                  ----------

                            WEDNESDAY, MAY 12, 2004

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10 a.m. in room
    485, Russell Senate Building, Hon. Ben Nighthorse Campbell
    (chairman of the committee) presiding.
        Present: Senators Campbell and Inouye.

            STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S.
             SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON
                             INDIAN AFFAIRS

        The Chairman. Good morning. The committee will be in order.
        This morning the committee will receive testimony on S.
    1715, a bill I introduced along with Senator Inouye to continue
    the steady expansion of tribal self-governance by broadening
    the programs within the Department of the Interior for which
    Indian tribes and tribal consortia can contract and compact.
    There is no more successful Federal policy than tribal self-
    governance.
        Today's hearing will be the second of three hearings on
    tribal self-governance the committee has held within a single
    month. Two weeks ago this committee held a hearing on S. 2172,
    a bill to address the chronic underfunding of contract support
    costs. Next week, we will be holding a hearing on S. 1696, a
    bill I introduced, again along with Senator Inouye, to expand
    tribal self-governance in the Department of Health and Human
    Services.
        There are good and simple reasons for the successes and
    importance of tribal self-governance. Since President Nixon's
    time, tribes have shown that they are much better than the
    Federal Government at providing services and programs to tribal
    members. Over one-half of the budgets of the BIA and the IHS
    are now administered by tribes, and the success of self-
    governance cannot be questioned.
        It is time to take the next step and broaden self-
    governance to include the non-BIA programs within the
    Department of the Interior. Today, we will hear from Dave
    Anderson, Welcome, Mr. Assistant Secretary; from tribal
    witnesses and experts in self-
    governance.
        We will proceed with hearing from Dave Anderson. By the
    way, all your written testimony will be included in the record
    if you would like to abbreviate.
        [Text of S. 1715 follows:]

      STATEMENT OF DAVE ANDERSON, ASSISTANT SECRETARY FOR INDIAN
    AFFAIRS, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY WILLIAM A.
        SINCLAIR, DIRECTOR, OFFICE OF SELF-GOVERNANCE AND SELF-
                             DETERMINATION

        Mr. Anderson. Good morning, Mr. Chairman and members of the
    committee. Also, I would like to recognize our tribal leaders
    that are here in the room this morning.
        I am pleased to be here to provide the Administration's
    position on S. 1715, a bill to amend title IV of the Indian
    Self-Determination and Education Assistance Act. I just would
    like to say that even though I am new on the job, in my
    briefings I have come to understand that we have had in the
    past a pretty good working relationship regarding the
    development of this bill. I think we have come a long way over
    the last few years. I just wanted everyone to know that we are
    committed to working with the tribes.
        There are still a few difficulties that I think that we
    need to resolve, but I think overall we have come a long way on
    the things that we do agree on.
        In 1988, Congress amended the Indian Self-Determination and
    Education Assistance Act by adding Title III, which authorized
    the Self-Governance Demonstration Project. In 1994, Congress
    again amended the act by adding title IV, establishing a
    program within the Department of the Interior to be known as
    Tribal Self-Governance. The addition of title IV made self-
    governance a permanent option for the tribes.
        These amendments authorized federally recognized tribes to
    negotiate funding agreements with the Department of the
    Interior for programs, services, functions or activities
    administered by the Bureau of Indian Affairs [BIA] and, within
    certain parameters, authorized such funding agreements with
    other bureaus. In the year 2000, the act was amended again to
    include titles V and VI, making self-governance a permanent
    option for tribes to negotiate compacts with Indian Health
    Services.
        In 1990, the first seven funding agreements were negotiated
    for about $27 million in total funding. For fiscal year 2004,
    there are 83 agreements that include 227 federally recognized
    tribes and about $300 million in total funding. So we have come
    a long way over these years.
        Some of these agreements are with tribal consortia which
    account for the number of such tribes exceeding the number of
    agreements. These funding agreements allow federally recognized
    tribes to provide a wide range of programs and services to
    their members, such as law enforcement, scholarship, welfare
    assistance and housing repairs, just to mention a few.
        Many of the funding agreements include trust-related
    programs such as real estate services, appraisals, probates and
    natural resource programs such as forestry, fisheries and
    agriculture. What makes these funding agreements unique is that
    the title IV allows tribal governments to redesign programs and
    set their own priorities, consistent with federal laws and
    regulations. This authority allows tribal leaders the ability
    to respond to the unique needs of their tribal members without
    seeking approval by departmental officials.
        In fact, in the last two weeks under this Administration,
    Secretary Norton signed the first-ever self-governance funding
    agreement between a tribe and the Fish and Wildlife Service.
    Title IV authorizes funding agreement throughout all bureaus
    within the Department of the Interior.
        On April 30, we also signed the agreement between, and this
    is what I just referenced, signed the agreement between the
    Council of the Athabascan Tribal Governments and the Fish and
    Wildlife Service that will enable the Council to perform
    certain functions previously provided by the Service on Yukon
    Flats National Wildlife Refuge in Alaska during fiscal year
    2004 to 2005. This agreement was the first of its kind between
    the Service and a federally recognized organization.
        In addition, in fiscal year 2004 and 2005, there will be
    four tribal-funded agreements with the Bureau of Reclamation
    and four tribal-funded agreements with the National Park
    Service. So we are making progress.
        The Department has concerns with this bill, S. 1715, which
    we would like to work with this committee to ensure that this
    legislation does not adversely impact our ability to meet our
    trust responsibilities. In particular, the Department is
    concerned with subsection 409(L) which would permit a tribe to
    cease performance if it appears the expenditure of funds is in
    excess of the amount transferred under a compact or funding
    agreement. If the Secretary does not increase the amount of
    funds transferred under the funding agreement, a tribe would be
    permitted to suspend performance of the activity until such
    time as additional funds are transferred. We have concerns
    about the impact this provision may have, especially on
    fiduciary trust functions.
        Under this provision, if a tribe contracts with the
    Department to administer IIM accounts and then decides there is
    not enough money to administer these accounts, the tribe could
    simply stop making IIM distributions to IIM accountholders. It
    is imperative that a tribe perform any fiduciary function it
    contracts or compacts for regardless of the level of funding.
    The tribe should return the function to the Department to
    administer if they believe that the funding level is
    inadequate, rather than to have their members suffer if the
    tribe decides not to perform.
        In addition, section 405(B)(1)(b) also broadens application
    of the funding agreements to authorize tribes to contract for
    all programs to which Indian tribes or Indians are primary or
    significant beneficiaries. Current law allows federally
    recognized tribes to assume programs administered by the
    Department's bureaus and offices other than the BIA, subject to
    negotiations and as long as the programs are available to
    Indian tribes or Indians. We would recommend that section
    405(B)(1)(b) be made discretionary and subject to the terms of
    the agreement for programs in which Indian tribes or Indians
    are the primary or significant beneficiaries.
        Finally, the Department is concerned with the reassumption
    provision contained in section 407. The provision would require
    that imminent jeopardy, substantial jeopardy and irreparable
    harm be met simultaneously in order for the Secretary to resume
    a program. This is a very high standard to achieve. Having to
    prove all three conditions practically eliminates the ability
    of the Secretary to quickly reassume a program in those rare
    instances where such an immediate assumption would be
    necessary, such as instances where serious injury or harm may
    occur. The Department would recommend that the reassumption
    standard contained in the current title IV be retained.
        While we believe that S. 1715 is moving in the right
    direction to expand self-governance, we cannot support the
    legislation at this time, especially given the current high
    priority for trust reform and the impact this legislation would
    potentially have to that critical program.
        We look forward to working with this committee and the
    tribes in developing alternative language to address our
    concerns.
        Mr. Chairman, this concludes my statement and I will be
    happy to answer any questions.
        [Prepared statement of Mr. Anderson appears in appendix.]
        The Chairman. Okay, thank you. I appreciate that, Mr.
    Assistant Secretary.
        I have several questions. Before I do, though, I want to
    take just a moment of personal privilege because I saw a number
    of our young Indian people come in and sit in the back of the
    room. I would like to introduce a couple of personal friends
    that are in the audience that are also in the back,
    particularly to those youngsters. One is Gene Keluche who is
    the head of the American Indian Sports Council that is here
    today. Gene, why don't you stand up for just 1 moment if you
    would. He is accompanied there with an old dear friend of mine
    and former teammate, Billy Mills, Oglala Sioux. Billy was the
    first American in the history of Olympic competition to win the
    10,000 meter, if you know anything about international sports.
    He has been just a wonderful role model for our kids.
        I want to introduce them so the youngsters over there who
    had never had a chance to meet either of these very, very well-
    known gentlemen in Indian sports could see them.
        Thank you for being here.
        [Applause.]
        The Chairman. Now, Mr. Assistant Secretary, before I get
    into some of the questions on the bill, you mentioned to me
    before we started that you had been on the road quite a bit
    visiting tribes. How many tribes have you been out there to
    talk to?
        Mr. Anderson. I have visited 20 to 25 tribes.
        The Chairman. At least 20. And in talking to them, has
    anything come through that is sort of a main concern across the
    board of tribes?
        Mr. Anderson. Yes, sir; there is. One of the major concerns
    that they have is law enforcement. It seems like this is an
    important priority with all of the tribes, especially the
    rampant increased use of methamphetamines, the finding of
    methamphetamine labs on a reservation, and not having the
    ability to adequately police those activities. Increasingly, we
    are seeing a rise in alcohol and drug use among our teens. So I
    think that is a very important concern.
        But then overall, one of the things that I have come to
    recognize is that we need to have a vision for where Indian
    country is going. I think all of the things that we deal with
    on a day-to-day basis are pretty much dealing or reacting to
    some of the brushfires that are happening out there. I think
    overall what is important for our Indian families is to know
    that in this great country that we live in, that our children
    growing up can have dreams and know that if they pursue those
    dreams and follow their passion, that they can live successful
    and rewarding lives. I believe that is possible.
        The Chairman. Before we finish this year, I am going to try
    to frame up a hearing to deal with just a general overview
    about where we ought to go, particularly from the standpoint of
    youngsters.
        Of those tribes you visited when you were talking about law
    enforcement, do you happen to know the number of them or the
    percent of those who do their own contracting for law
    enforcement?
        Mr. Anderson. Senator, I would have to get back to you on
    that.
        The Chairman. Okay. One of the really important things that
    we have tried to do, both Senator Inouye and I, is improve
    tribal self-governance, as you may know. The BIA, as I
    understand it, worries that the tribes will stop performing
    contracts if they do not receive enough funding. Funding is
    always a problem. But over the years, we have had dozens of
    tribes appear before this committee complaining that they have
    been forced to perform 638 contracts with inadequate funding,
    particularly when it comes to contract support costs.
        If a tribe stops performing under a 638 contract, doesn't
    the Department have the authority to step in and take over the
    services or the program?
        Mr. Anderson. Yes; they could. Senator, I would like to
    introduce Mr. Sinclair. He is not on the list, but he is the
    Director for the Office of Self-Governance at the Bureau.
        The Chairman. Okay. So whenever you think you have an
    answer, Mr. Sinclair, we would appreciate your thoughts on it,
    too.
        Isn't it part of the negotiating process for a tribe and
    the agency to determine what is sufficient funding when dealing
    with a 638 contract? Mr. Sinclair, go ahead.
        Mr. Sinclair. Yes, sir; when we negotiate a self-governance
    agreement or a 638 contract, we base it upon either the
    President's budget, which is modified then by congressional
    appropriations. So the constraint is to determine what the
    tribe's share is of that particular programmatic amount and
    then determine it. That would also include contract support as
    well.
        The Chairman. Do you know off-hand how many times has a
    tribal contractor stopped performing its responsibilities, and
    particularly if they have done it without giving sufficient
    warning to the Bureau that they were going to have to stop?
        Mr. Sinclair. To my knowledge, I do not know of any tribe
    that has actually done that. Basically, tribes take over the
    responsibility for programs, services or functional activities,
    many times knowing that the funding they will be receiving is
    inadequate, but they believe that because of the flexibility of
    the self-governance that they can do a better job of serving
    their people. Many times because they have ownership of those
    programs, as you well know, sir, they augment that with tribal
    resources. So while tribes do feel the pain of inadequate
    funding, along with the Department itself and the Bureau itself
    in providing services, they do a lot with what they receive.
        The Chairman. You mentioned that the re-assumption standard
    in section 407 is too high. Is the Department's view that
    raising the standard might interfere with the Department's
    trust responsibility? So the Department cannot support the bill
    because of the high priority for trust reform and the concern
    about trust reform?
        Mr. Anderson. Right. But I would also like to preface this.
    We also believe that one, we are not that far away. We have
    come a long way from my understanding of where we started out a
    couple of years ago. There are a number of things that still
    need to be resolved, but one of the things I would like to say
    is that in our briefings, we are committed to seeing this thing
    through. It is something we would like to see happen.
        So when I said that at this time we were not in support of
    it does not mean that we are fighting it, but it means that
    there are just some things, there are a few difficult things
    that need to be resolved that we feel can be worked out.
        The Chairman. I appreciate that, because that is what the
    committee wants to do too. Maybe the Department sees the bill a
    little differently than we do, but it seems to me that self-
    governance is certainly part of the answer to trust reform. In
    the language of the bill, what specific language could you
    point to that causes problems in trust reform efforts? I want
    to try to make some changes to make this thing work, too,
    before I leave, if I can. I think with the Department's help we
    can get something that is going to go a long way to help tribal
    governments.
        Mr. Anderson. I think one of the main ones is this inherent
    in Federal function.
        The Chairman. Okay. Mr. Sinclair, maybe you could answer,
    what does ``inherent function'' mean to you?
        Mr. Sinclair. The definitions of tribal shares and
    inherently Federal functions is a concern to us. While it is
    consistent with what is in title V, we are fearful that the
    standard presents us with, well, the definition as defined is
    that if something needs to be statutorily defined, and there
    are many functions that in providing trust services as we are
    defining it through the trust reform that are not in statutes.
    Yet, as the Secretary is a trustee, she feels that these are
    things that only she can delegate to a Federal official, but it
    is not codified in law. We feel like with this definition we
    would be in a tension between tribes who are asking to have
    those services or functions delegated to them through a
    contract or compact, and we would be refusing them based upon
    the trustee. It would set up an unnecessarily adversary
    relationship that could go into the courts and all that stuff.
        The Chairman. Okay. I have no further questions, but I look
    forward to working with you to try to make this resolvable.
        I might tell you, Mr. Assistant Secretary, you have just
    come on board in the last year. I have not been here nearly as
    long as some of my colleagues, but I have been here 12 years.
    As I just go over in my own mind about all the bills that we
    have dealt with to try to help Indian people, you were not
    here, but I want to tell you I cannot remember a single one,
    frankly, that the Administration, anybody's Administration in
    the last 12 years I have been here, has put forth.
        Most of the good bills that have come up and gone through
    the committee have come from Indian people. In some cases, we
    had to sort of drag part of the Administration along kicking
    and screaming, when I thought we were all supposed to be in
    this together, whether it was the Interior Department or the
    Indian Health Service or this committee or tribes, and that was
    to try to make Indian people more self-sufficient, make them
    have a lifestyle that certainly they deserve, and a little more
    independence from being tethered to the Federal Government. An
    awful lot of the times when these bills are put forward by
    tribes or by somebody in the committee, we run into a buzz saw
    of opposition from the Administration.
        So we are always continually trying to negotiate about
    where we can fix the thing to move something forward. So much
    of what has happened, at least in the 12 years that I have been
    here, maybe I am wrong, but I viewed an awful lot of it from
    the standpoint of the opposition being from turf protection
    more than trying to do the right thing to help Indian people.
        When I helped you with your confirmation, I was very, very
    impressed with what I thought was a real belief in trying to
    make sure that Indian people get a fair shake out of this
    government. I would hope after I am gone and you are still
    here, that that is going to be a driving force with you in the
    years of your tenure.
        Mr. Anderson. Senator Campbell, I cannot tell you how much
    I appreciate your sentiments. I am a firm believer, as
    evidenced in my own life of being self-determined. When I came
    on board, I came on board with the spirit of heart that I could
    make a difference. I will tell you that this has been a real
    awakening for me. But I also believe that we cannot give up.
    When we are out there, like a lot of tribal leaders, we often
    think that, God, if I could just get in there, I would do this
    a whole lot differently. And then when you get into it, you
    find that the bureaucracy is greater than anybody could
    imagine.
        I have a goal to be able to try and cut redtape wherever we
    can. I have a goal to see our Indian people self-determined,
    economically self-sufficient and self-governed. I believe that
    as sovereign people that we can accomplish that. Somehow, some
    way, I believe that we will see this happen.
        The Chairman. Mr. Assistant Secretary, welcome to
    Washington. [Laughter.]
        Thank you very much for your testimony.
        Mr. Anderson. Thank you.
        The Chairman. We will now hear from, and by the way, there
    may be some followup questions. Senator Inouye had a conflict
    this morning. He and several other members were not here. We
    may submit some to you to be answered in writing.
        Mr. Anderson. I would also say that I have always tried in
    every meeting to be the last person out of the room. Today, I
    have some scheduling conflicts that I cannot get out of, and
    this is the first time I have ever left before the end of a
    meeting.
        The Chairman. I would appreciate it if you would read the
    testimony of the next panel when you have the time.
        Mr. Anderson. Thank you for your time.
        The Chairman. We will now go to panel II. That will be the
    Fred Matt, chairman of the Confederated Salish and Kootenai
    Tribes of Flathead Reservation in Pablo, MT; Geoffrey Strommer,
    Hobbs, Strauss, Dean, and Walker from Portland; and Phil Baker-
    Shenk from Holland and Knight, the former committee
    staffmember. Welcome to the committee this morning.
        Mr. Matt, how are things up in Flathead country?
        Mr. Matt. It was cold when I left.
        The Chairman. It was cold when you left. How is my friend
    Allard and their family?
        Mr. Matt. Doug Allard is an amazing man. I just love your
    friend. He just recently went through bypass surgery. He had a
    valve in his heart that was not functioning properly, so he is
    recovering now from that heart surgery.
        The Chairman. He is a friend of mine for 30, 35 years.
    Please give him my best and well wishes.
        Mr. Matt. I always do.
        The Chairman. Good. Tell him to stop eating the fry bread.
    That will hurt your heart. [Laughter.]
        Okay, we will go ahead with you, Chairman Matt.

     STATEMENT OF D. FRED MATT, CHAIRMAN, CONFEDERATED SALISH AND
                 KOOTENAI TRIBES, FLATHEAD RESERVATION

        Mr. Matt. Chairman Campbell and committee members, my name
    is Fred Matt. I serve as chairman of the Tribal Council for the
    Confederated Salish and Kootenai Tribes. With me today from our
    legal staff is Brian Upton and George Waters, our lobbyist here
    in town.
        The Chairman. We know Mr. Waters.
        Mr. Matt. I have provided written testimony for the record.
    I will limit my remarks to just a few highlights, although it
    is going to be hard to try to condense it in the time I know
    that I have allowed, because we have done so much at Flathead
    that we are proud of and we want to share our successes.
        I understand also that this may be the last time that I
    testify before this committee with you as Chairman. And
    although Senator Inouye is not here today, on behalf of the
    Salish and Kootenai people please accept our appreciation for
    the great work you have both done for Indian country, and staff
    like Pat Zell and Paul Moorhead. It is difficult to imagine
    what Indian country would look like today, if over the course
    of the last century, every member of Congress had simply spent
    a fraction of the time that you have spent fighting for Indian
    people.
        Senator Campbell, during your 18 years in the House and
    Senate, you have become a hero, literally, and a role model for
    Native Americans. We wish you the best of luck in life after
    the Senate.
        The Chairman. Thank you. Would you send a copy of that
    statement to my wife? [Laughter.]
        Mr. Matt. Definitely.
        The Chairman. Thank you.
        Mr. Matt. In gold, bold letters. [Laughter.]
        And as well pass on our appreciation to Senator Inouye.
    Again, and for the last 45 years that he has been in Congress,
    the Indian people have simply never had a better friend or
    advocate. We look forward to working with him as Ranking Member
    of the Commerce Committee.
        Again, I am honored to be asked to provide testimony on
    tribal self-governance, as our tribes are proud of our
    successes in managing the programs of the Federal Government.
    Our success began when the self-determination law was passed,
    and after President Nixon proposed this landmark policy. CSKT
    was one of the first tribes to exercise the opportunity of
    Public Law 93-638. Since 1975, we have begun management of BIA
    education programs. We have not looked back. I have said that
    many times before.
        Today, I am proud to report that the tribes I represent
    manage under self-determination more Federal programs than any
    other tribe in this Nation. We do so with excellent
    evaluations, clean financial audits, and with few if any
    complaints from those who receive those services.
        For example, we are the only tribe operating the BIA's
    title plant and individual Indian money account program, and
    all of the natural resources programs that generate the revenue
    deposited in those accounts. Since 1989, we have operated a
    safety of dams program responsible for rehabilitation of 17
    dams located on our reservation. We have had extremely good
    success. We have repaired dams quicker and cheaper than has the
    Bureau of Reclamation. One example is the Black Lake Dam was
    completed at a savings of approximately $1.3 million below the
    Bureau of Reclamation's estimates.
        Again, I have said this before, but my personal favorite
    success story in self-determination is the Mission Valley
    Power. We manage the power utility that provides electricity to
    nearly 22,000 Indian and non-Indian consumers on our Flathead
    Reservation. Today, I am proud to report that Mission Valley
    Power offers some of the lowest cost and most stable electric
    rates throughout the Northwest. We have an independent utility
    board and we have an active consumer council. Mission Valley
    Power's conservation programs have won several awards, and our
    safety record is outstanding.
        We have succeeded because local government is the best
    government and this includes Indian tribes. Our tribal council
    is the best suited to address the needs of our tribal members,
    and we understand their needs as we talk with them in our
    grocery stores, at basketball games, and our weekly council
    meetings. We do not operate one-size-fits-all programs created
    through bureaucracies. With the self-governance flexibility, we
    tailor the program to fit the needs, while complying with
    federal laws and regulations.
        My written testimony describes the tribe's compacting
    experience in more detail. While self-governance has been a
    quantum leap in Federal policy, the act itself could be
    improved and strengthened to better meet its objectives. My
    written testimony examines some of the proposed changes and
    lays out rationales as to why such changes are needed.
        We are particularly pleased to see the bill define
    ``inherent Federal function,'' and include OST funding as
    mandatory for inclusion in annual funding agreements. As this
    committee is aware, the CSKT is currently negotiating with the
    U.S. Fish and Wildlife Service for an annual funding agreement
    covering various activities at the National Bison Range
    Complex. It has been 10 long years since we first initiated
    this effort. It has been an expensive, frustrating and
    resource-intensive effort, to say the least. Our efforts to
    assume management of this Complex began when Congress
    authorized the management of Department of the Interior
    programs to tribes that have a significant historic, geographic
    or cultural tie.
        CSKT meets all of these criteria with the National Bison
    Range. The Range is located in the heart of our reservation,
    entirely on land reserved for us through the Hell Gate Treaty
    of 1855. The bison at the Range are descended from a herd
    raised by tribal members Charles Allard and Michel Pablo.
        Finally, a study conducted by the Service documents a
    number of cultural sites. After nearly a decade, we are close
    to reaching an agreement. The recent agreement by Secretary
    Norton with the Council of Athabascan Tribal Governments for
    the Yukon Flats National Wildlife Refuge should help finalize
    our agreement. We congratulate the Athabascan leaders and the
    Fish and Wildlife Service in Alaska for reaching this
    agreement.
        One of our primary concerns with the process has been the
    creation of a moving target to finalize negotiations. The Fish
    and Wildlife Service continually creates new issues which has
    delayed reaching an agreement. For example, at one point in
    January of this year, we thought we had narrowed down our
    outstanding issues to a very short list, and then the Fish and
    Wildlife Service unilaterally rewrote the draft AFA in February
    so that it included some unacceptable new issues, further
    delaying our process.
        Despite our concerns, we are hopeful that we can finalize
    an AFA with Fish and Wildlife Service in the very near future.
    It will be submitted to this committee for a 90-day period
    before it becomes effective. At that time, we will need the
    support of our friends in Congress who share our vision and
    goals. We are aware that there is some opposition, but we are
    confident that the Federal decisionmakers here in Washington
    will see the opposition's arguments for what they are. We
    believe that most people agree with the New York Times when it
    said in a September 3, 2003 editorial that, quote:

        The National Bison Range is an unusual case. It offers a
    rare convergence of public and tribal interests. If the Salish
    and Kootenai can reach an agreement with the Fish and Wildlife
    Service, something will not have been taken from the public;
    something will be added to it.

        Unquote.
        Mr. Chairman, my written testimony includes specific
    comments on provisions in S. 1715. A number of those comments
    reflect CSKT's current experience with the Fish and Wildlife
    Service in negotiating an agreement on the National Bison Range
    Complex, as well as 15 years of self-governance experience with
    other Interior agencies, principally the BIA. Overall, I
    believe that S. 1715 would help place Indian tribes on a
    stronger footing when negotiating with the Department of the
    Interior and its agencies, and that it should be enacted into
    law.
        Mr. Chairman, thank you for the opportunity to provide my
    views to this committee.
        [Prepared statement of Mr. Matt appears in appendix.]
        The Chairman. Thank you, Mr. Chairman.
        Now we will go to Mr. Strommer.

       STATEMENT OF GEOFFREY STROMMER, HOBBS, STRAUSS, DEAN AND
         WALKER, ON BEHALF OF THE COUNCIL OF ATHABASCAN TRIBAL
                              GOVERNMENTS

        Mr. Strommer. Good morning, Mr. Chairman. It is an honor
    and a privilege to be here today to offer testimony on behalf
    of the Council of Athabascan Tribal Governments. Ben Stevens,
    the Council's Self-Governance Coordinator, was scheduled to be
    here today, but unfortunately his trip canceled at the last
    minute, so I am really just substituting for him.
        My name is Geoff Strommer. I am a partner at Hobbs,
    Strauss, Dean, Walker, a large national law firm that
    specializes in representing Indian tribes throughout the
    country. For over 10 years, a large part of my practice has
    focused on working with tribes and tribal organizations seeking
    to exercise rights under the Indian Self-Determination Act,
    both self-determination contracting as well as self-governance
    compacting with the Department of the Interior as well as the
    Department of Health and Human Services.
        In my comments today, I would like to focus on three areas.
    I would like to talk a little bit about CATG's experience in
    self-governance, particularly as it relates to its most recent
    achievement of negotiating a self-governance agreement with the
    Fish and Wildlife Service; some of the benefits that CATG has
    been able to achieve through the self-governance program; and
    then I want to talk about a couple of key provisions in the
    title IV amendments that CATG has a particular interest in
    seeing enacted, and give you the justification for that
    interest.
        Let me start by telling you a little bit about CATG itself.
    It is a tribal organization that was created in 1985 by 10
    tribes to provide essential services to tribal members. The
    services range from natural resources management, economic
    development, and a wide array of health services. The
    geographic area in which CATG provides these services is quite
    large. It encompasses the entire Yukon Flats National Wildlife
    Refuge and part or the Arctic National Wildlife Refuge. I have
    heard some people say that it is close to the size of Wyoming,
    to give you a sense of the size of the territory that we are
    talking about.
        CATG's villages have been located in this large region
    since time immemorial. Today, many tribal members live
    subsistence lifestyles that are very closely tied to the land,
    and that are dependent upon a healthy and vibrant ecosystem.
        For many years, CATG has had a compact of self-governance
    with the BIA, as well as a compact of self-governance with the
    Department of Health and Human Services. It provides
    comprehensive health care services, for example, throughout the
    region, and operates a health center in Fort Yukon, which is
    the main hub city in the region.
        Two weeks ago, after a long and difficult effort, CATG
    became the first tribal organization in the country to enter
    into a self-governance funding agreement with the Fish and
    Wildlife Service. CATG sought to assume specific programs from
    Fish and Wildlife that relate to the Yukon Flats National
    Wildlife Refuge, because of its tribal members' unique
    historical, geographic and cultural relationship to the
    programs carried out by Fish and Wildlife on the Flats.
        Under the agreement, the Fish and Wildlife Service will
    transfer close to $60,000 to CATG. CATG will perform specific
    responsibilities in exchange for those funds. Those
    responsibilities include locating public easements under the
    Alaska Native Claims Settlement Act, some environmental
    outreach, educational outreach, wildlife harvest data
    collection, survey of the moose population, and some logistical
    functions such as maintenance of vehicles and facilities that
    the Fish and Wildlife Service has in Fort Yukon.
        The agreement describes operational standards and
    performance measures that CATG has agreed to meet. The United
    States retains complete oversight and ultimate control over the
    lands and resources within the Yukon Flats. The agreement is to
    last one year and is renewable by the parties in future years.
        CATG is very proud of the agreement. I wish Ben were here
    himself because he would express in his own words just how
    proud they are. They are committed to making it work in
    partnership with the Fish and Wildlife Service. The agreement
    is viewed as a first step in a relationship between Fish and
    Wildlife Service and CATG that tribal leaders hope will grow
    and last long into the future.
        The agreement provides many tangible benefits to the Refuge
    and its resources. CATG brings to the partnership a wealth of
    traditional and ecological knowledge. It has experience working
    with local residents to gather accurate data. It has
    demonstrated its efficiency and effectiveness in fisheries and
    wildlife research projects, habitat management activities,
    harvest data collection, aerial surveys, subsistence use
    surveys, and traditional knowledge interviews.
        While the agreement is an example of a successful
    partnership between the tribes and the United States, it is a
    success that was not easily achieved. Beginning in 1998, when
    CATG first submitted a proposal to assume certain functions
    from the Fish and Wildlife Service, CATG had to work hard to
    educate Fish and Wildlife Service representatives and people in
    the region of the benefits of the self-governance program.
        I will not describe all the steps that CATG had to go
    through to ultimately conclude an agreement with Fish and
    Wildlife Service. I will say that the process for arriving to
    the point where the parties could sign an agreement was long,
    challenging, and very frustrating at times for CATG. It is only
    because CATG was completely committed to its goal of forging a
    new relationship with the Fish and Wildlife Service under title
    IV and was willing to bear great expense to do so in commitment
    of financial resources, time and energy that it succeeded in
    accomplishing what it sought by negotiating the agreement.
        A key element in the process was that under title IV, Fish
    and Wildlife Service retained complete discretion over whether
    to transfer any of the programs over to CATG, and the exercise
    of that discretion was subject to the individual discretion of
    Fish and Wildlife representatives sitting across the table.
    Ultimately, it took a commitment from top political leadership
    at the Department of the Interior for the Fish and Wildlife
    Service employees sitting across the table to have the same
    level of commitment to reach an agreement with CATG as CATG
    brought to the table.
        I do not think that Congress intended the process to be as
    difficult as it has proven to be. I also doubt that Congress
    could have foreseen that it would take 10 years from the date
    it enacted title IV for a tribe to be able to assume the kinds
    of programs that are included in CATG's agreement.
        Unfortunately, the difficulties CATG encountered in the
    process were not unique. A number of other tribes and tribal
    organizations that tried to assume similar programs from non-
    BIA agencies after title IV was enacted in 1994 simply gave up
    after running into bureaucratic resistance to the full
    implementation of what Congress intended through that act.
        Several of the proposed amendments in S. 1715 are intended
    to help clarify the scope of programs that tribes can assume as
    a matter of right in a funding agreement, and provide tribes
    with more leverage during the negotiation process.
        Let me talk a little bit about the title IV amendments. The
    amendments advance several very important purposes. First, over
    95 percent of the bill's provisions are intended to ensure
    consistency between title IV and title V, the permanent self-
    governance authority within the Department of Health and Human
    Services enacted in 2000. Enactment of those provisions are
    critical to ensure that tribes participating in both self-
    governance programs have access to the same advantages and
    rights as they manage programs and funds that govern tribes'
    rights to assume non-BIA programs. The existing title IV
    provisions delegate to the Secretary almost complete discretion
    to negotiate non-BIA programs into self-governance agreements,
    and provides little by way of process or substantive rights
    that a tribe can utilize if it does not agree with the exercise
    of discretion.
        S. 1715 contains several important provisions that will
    help address some of the problems CATG encountered as it sought
    to assume functions from Fish and Wildlife Service. For
    example, a provision that Assistant Secretary Anderson
    discussed, Section 405(B)(1)(b), amends title IV to make clear
    that tribes have the right to administer any program from non-
    BIA agencies in which Indian tribes are the primary or
    significant beneficiaries.
        This language is important. It is language that will ensure
    that non-BIA agencies will not decline to include a particular
    program in a funding agreement simply because non-Indians might
    incidentally benefit from the program. If tribes are the
    primary beneficiaries of a particular program, CATG believes
    that it should as a matter of right have a right to take over
    that program within the confines of the self-governance
    legislation and manage that program.
        This provision, coupled with the new section 407 of the
    bill that creates important and needed procedures that must be
    followed whenever a tribe and the Secretary cannot agree on
    terms included in an agreement, will go a long way toward
    clarifying tribes' rights to assume non-BIA programs and give
    tribes more leverage in the negotiation process over these
    programs.
        Finally, the bill includes several provisions that seek to
    address BIA's specific problems such as construction programs
    and projects, reassumption standards and trust-related
    functions, some of which we discussed earlier in the context of
    Mr. Anderson's testimony. Many of these provisions are very
    similar to comparable provisions in title V, but were redrafted
    and included in S. 1715 to focus on BIA-specific issues. I
    agree that we still have some room to negotiate over many of
    those provisions with the Department and I am hopeful, as Mr.
    Anderson indicated, that we will be able to achieve some kind
    of a resolution over most of the areas of disagreement at some
    time over the upcoming months.
        In conclusion, CATG very much supports the enactment of all
    the provision in S. 1715 as it is presently drafted. Self-
    governance has given tribes the flexibility to achieve goals in
    a way that is most meaningful for the people most affected.
    Further, improvement in the self-governance program within the
    Department of the Interior can provide not only benefits for
    the land, its resources and the people who use and enjoy them,
    as envisioned by Congress when it first enacted title IV, but
    most particularly give more opportunities to tribes in the
    future to continue improving the service delivery to the local
    people.
        Thank you for the opportunity to testify today. I will be
    pleased to answer any questions that you may have.
        [Prepared statement of Ben Stevens, as presented by Mr.
    Strommer, appears in appendix.]
        The Chairman. Thank you. I have several before I go on to
    Mr. Baker-Shenk. You brought up a very important point, I
    think. We pass legislation here and it is signed into law, but
    that is not the end of it. Then it has to be implemented by
    agencies. That is done through the rulemaking authority, as you
    know. Unfortunately, sometimes agencies by the time they get
    done with the rules, it just flies in the face of the intent of
    the darn bill when we passed it.
        We have seen tribes come in after rules have been
    implemented for laws we passed, and said that it does exactly
    different; something else from what the had wanted or what we
    had wanted. That is the unfortunate thing that sometimes tribes
    simply give up, as you mentioned, or sometimes there is not
    enough communication between the agencies and the tribes, so
    the tribes know what they can avail themselves to in the first
    place. So there are a lot of weaknesses when you have a
    government as clumsy and big as we have. The intent of the
    bills when they get out of this committee, I can tell you, is
    to try to help Indian people.
        Now we go to Mr. Baker-Shenk.

    STATEMENT OF PHIL BAKER-SHENK, ESQUIRE, HOLLAND AND KNIGHT LLP,
                             WASHINGTON, DC

        Mr. Baker-Shenk. Thank you, Mr. Chairman. I am with the law
    firm of Holland and Knight. We also represent a number of
    tribes and tribal organizations around the country.
        I am pleased and honored today to testify in support of S.
    1715. Geoff, I and others have been working a long time with
    some tribal leaders to get this bill to the shape it is in.
        I plan today to give a brief overview of the basis for
    self-governance as a matter of policy and philosophy, and the
    rationale for the amendments in this bill. At the end of my
    written testimony, there is a brief section-by-section on the
    bill, all of which I would appreciate being included in the
    record.
        The Chairman. It will be in the record.
        Mr. Baker-Shenk. As well, if I may, a letter from the
    chairman of the Jamestown-S'Klallam Tribe, Ron Allen who is
    seated here, to the Assistant Secretary Aurene Martin which
    supplements and seeks on behalf of the tribes an additional
    provision be added.
        The Chairman. Okay, Mr. Allen's letter will also be
    included in the record.
        [Referenced document appears in appendix.]
        Mr. Baker-Shenk. Thank you.
        Mr. Chairman, a few words first on my personal experience
    with this issue of tribal self-governance. For the past quarter
    century, I have had the personal privilege to be working with
    tribal and Federal officials on these and related issues. I
    have served several tours of duty here on this committee staff
    and worked as a legal advocate for tribal governments. In all
    those years that have been given to me, the most important and
    personally rewarding issue has been this issue of tribal self-
    governance; that of shaping and expanding the authority that
    tribes are given back by the United States to run their own
    affairs.
        The mission of this movement, if you will, of self-
    governance is to transform a dependency-ridden and a services
    delivery system run by the federal government, into a
    government-to-government relationship that returns power,
    accountability, responsibility and flexibility, along with
    funding, to tribal governments.
        In leading these efforts to authorize and expand tribal
    self-governance, you, Mr. Chairman, and some of your colleagues
    on this committee and others have believed that if given the
    chance, tribal governments would indeed administer the programs
    for their people in a competent, accountable and efficient
    manner. You put some of your reputation on the line in that
    belief, and I dare say that none of the self-governance tribes
    have disappointed you.
        I have had first-hand experience advising tribes during
    negotiations like those mentioned earlier and the
    implementation of dozens of compacts and funding agreements.
    But the bill would permit the many other tribes who are waiting
    to join this an opportunity to be involved. It is also
    providing much, much more funding and authority that still
    exists at the Interior Department in making that available for
    transfer to tribes under self-governance.
        This is precisely why early enactment of this bill is an
    imperative. It would remove obstacles that have been identified
    in the negotiations and in the implementations, differences
    over what was the true intent of the Congress the last time you
    approached this in 1994, informed by the work that Congress did
    in 2000. It would remove obstacles that have emerged in these
    negotiations that have blocked further expansion of self-
    governance. Thereby, it would create and encourage greater
    tribal participation.
        The roots of tribal self-governance do run deep in American
    legal and political history, but summed up, perhaps President
    Nixon said it best when he said, ``the goal is to remove
    Federal control, while preserving federal concern and federal
    support.'' That rejected the previous policies and practices of
    persecution, termination and paternalism.
        This act has been amended many times by Congress, as you
    stated, and the intent has always been debated after enactment.
    But overall, the intention has been very clear, and that is to
    provide special and expanded authority to tribal governments.
    In most instances, this has also meant curbing the power and
    the ability of the Federal bureaucracies, the power that they
    have to interfere with tribal program authority.
        In making these amendments, none of us should forget that
    this self-governance notion was born as a result of federal
    failure. Back in the late 1980's, investigation reports in the
    Phoenix newspapers showed a Federal service delivery system
    that had earned for itself great distrust. Congress then and
    Congress today had a better solution: Trust the tribes
    themselves to manage their own affairs.
        When it comes down to it, no matter how good are the people
    at the top of any Department, any Administration, you will not
    hear this message from a departmental bureaucracy. Rather, the
    Department's interests will always caution against further
    transfer of further control to tribes. That is natural. But
    look at the record. Who is better worth the risk? Who is better
    worth it? The Federal bureaucracy or the tribes themselves?
        This bill before the committee answers that question. As
    history has proven out in the last 12 years, the tribes are a
    better risk to manage their own affairs.
        The rationale has always been that the best government is
    the government closest to the governed, and the best service
    delivery is done by those closest to those who are served.
    Tribal self-governance funds, once the money gets to the tribal
    government, are always spent and churned right there in the
    targeted Indian community, rather than in some distant urban
    bureaucracy or some distant research park.
        When a tribal government serves its own members, there are
    never cross-cultural or language barriers. There is always
    commonsense responsiveness to changing needs. There is greater
    potential for maximum flexibility and efficiency right on the
    ground. And perhaps most important, there is direct
    accountability to those who are served.
        Unfortunately, these lessons of tribal self-governance
    have, I fear, gone largely unheeded in the recent debates over
    trust reform. The most effective and accountable service
    delivery, and that includes trust services, is at the local
    level. The self-governance answer to all these questions is
    delegate the power down; delegate the authority down the
    ladder, not up; authority to make trust decisions and the money
    to do it right.
        If trust is ever to be truly reformed, and you have been
    here watching various proposals over the years to do just that,
    if it will ever be accomplished, it will be because tribal
    trust service capacities are first rebuilt at the reservation
    and Native community level. That is where the decisions are
    made most efficiently, and it is for a simple reason, because
    all of the interested parties are there at the ground level.
        This bill is the product of a several-year effort of tribal
    leaders to improve the statutory basis. The language has been
    reviewed and revised after countless meetings of tribal
    leaders, some with representatives of the Department. Much of
    the bill is informed by the experience and insight gained a
    couple of years ago with the amendments mentioned earlier in
    title V applying to the Indian Health Service.
        In addition to providing very necessary updates to this
    1994-era title IV, the bill addresses problems with sections of
    the statute that govern non-BIA programs in construction. Among
    the key features of this bill are provisions that would
    facilitate more tribal participation in self-governance; that
    would clarify the inclusion of both BIA and Office of Special
    Trustee programs as they are moved about; and it would provide,
    as in title V, for ways for a tribe to break and impasse in
    negotiations so that we do not have the experience you just
    heard of six years bargaining with an agency for, in the end,
    modest in finances agreements.
        It would also allow for greater inclusion of construction
    activities and it would streamline payment procedures. There is
    more detail in my written testimony. I will not bore you here
    with that.
        I would add that there was one reference made when
    Assistant Secretary Anderson was here to the problems the
    Department has with the provision dealing with inherent federal
    functions. I would urge the committee to look at that in the
    backdrop of the larger context of departmental interests versus
    tribal interests in these questions.
        Also, to submit for the record that from experience, there
    is no uniform decision within the BIA as to what is and is not
    an inherent Federal function. It varies from region to region.
    In one region, which will go unnamed, it is nearly 100 percent
    of everything they do, as if ``inherent'' means important or,
    if you do not respect us, it is not an inherent Federal
    function. ``Inherent Federal function'' in your bill is defined
    as something that cannot be legally delegated. That is a narrow
    subset. It is not, as mentioned earlier, what is not authorized
    in statute to be delegated; simply what cannot legally be
    delegated. There are certain things a trustee does that cannot
    be legally delegated. This definition says no more than that.
    We wanted something much more stringent. This is a backup
    trying to reach toward the Department.
        Finally, the tribes who have actively participated in self-
    governance guided and shaped this, along with leaders like you,
    Mr. Chairman, and have urged this Congress to enact this bill
    in various forms for the last couple of years. They thank you
    for your energy and the focus that you and your able staff have
    given to bringing this to this near-final stage, and they urge
    that you do bring it to enactment as soon as possible.
        I thank you for the opportunity to testify here today, and
    of course would be pleased to answer any questions now or later
    that the committee may have.
        [Prepared statement of Mr. Baker-Shenk appears in
    appendix.]
        The Chairman. Thank you, Phil. I have several questions of
    each of you. Thanks for talking a little bit about dependency.
    I do not know of an Indian person or a tribe, very frankly,
    that wants to be dependent on anybody. I think most of us
    recognize that dependency on the Federal Government hurts the
    work ethic, kills productivity, flies in the face of human
    dignity when you have to be dependent on the Federal
    Government.
        It might be a bad analogy, but I am thinking myself of all
    the problems we are involved in Iraq now. Since 1945, we
    rebuilt at a lot of American expense three nations, Japan,
    South Korea, and Germany, that are totally independent; make
    all their own decisions; and become leading democracies
    themselves. We have done that since 1945. And yet, three times
    that long we still cannot seem to give tribal governments the
    kind of independence they have a right to expect. It is just
    amazing to me that we sort of still after all these years, the
    Federal Government has kept tribes tethered, if that word will
    fit.
        Let me start with you, Phil, since you were the last to
    speak. Outsourcing is a relatively recent initiative. It is
    encouraged throughout the Federal Government by President Bush.
    We have heard him speak of it a number of times. Tribes have
    been doing that for roughly 30 years through self-governance.
    As we move forward expanding self-governance to include non-BIA
    programs, questions are raised about whether the tribes have
    the capacity to handle the programs. Perhaps I should have
    asked Assistant Secretary Anderson, but what do you think the
    Department of the Interior means when they talk about whether
    the tribe has the capacity to operate a program? Is it
    infrastructure or educational experience or what?
        Mr. Baker-Shenk. I think it is likely both. It is largely
    staff-driven. These are federal officials asking whether tribes
    can truly hire people who can do as good or better a job as
    existing federal staff have done. As I point out in written
    testimony, often these debates boil down to job protection or
    turf protection.
        The Chairman. Maybe they can do a better job and may be
    they cannot, but the way I understand the 638 contract, if they
    cannot, they go back under the purview of the Bureau.
        Mr. Baker-Shenk. That is right.
        The Chairman. But if we are not going to give them a chance
    in the first place, how are we ever going to know?
        Mr. Baker-Shenk. That is a position that many tribes have
    taken in negotiations and sometimes it has been persuasive. The
    additional point is the accountability. Even if someone is not
    perhaps at 100 percent performance, the incentive to get there
    is very strong at the local level, when you compare it to the
    incentive that a Federal official does in the bureaucracy to
    improve performance. We are still searching for ways Federal
    Government-wide to get performance measures and get the Federal
    force to produce to measures that we set.
        So here moving it to an accountability structure right by
    the governed and served is, I think, the better course for
    getting higher performance levels and building capacity more
    quickly.
        The Chairman. Do outside groups have a legitimate role in
    the 638 process? And should their non-Indian interests be
    involved in the 638 process?
        Mr. Baker-Shenk. Those outside interests in the case of
    more non-BIA programs that have been mentioned earlier
    certainly have a stake. These are federally supported programs.
    But if you look narrowly at the bill before the committee or if
    they would look at the bill before the committee, they will see
    that it is very narrowly drawn, to only those programs that are
    of primary or significant benefit to Indians.
        If there is a more incidental benefit to non-tribal
    interests, those certainly can be taken into account. The
    Federal Government will be taking those into account. But the
    examples, Mr. Chairman, we have come so little way for so long
    that we are still dealing with battlegrounds over bison ranges
    within a reservation. We are still dealing with interests well
    within the homelands of tribes where very few other people have
    much interface, and we still cannot get significant agreements
    even in those areas.
        The Chairman. Let me ask you this, when the Federal
    Government enters the equivalent of a 638 contract with a
    state, let's say, do you know how often the states take into
    consideration Indian concerns before they implement it?
        Mr. Baker-Shenk. I like the premise behind the question.
    The States will be concerned if there are voices raised within
    their borders, just like tribes as good governments are always
    concerned about their neighborly relations. If they have
    neighbors living within their lands or without but nearby, more
    and more tribes are opening up a hearing, information and
    resource mechanisms. Those are part of many of the tribes,
    particularly the self-governance tribes who have made so much
    of this existing authority. It is just good government, self-
    interested good government.
        The Chairman. And that dialogue is working, too, and tribes
    do that of their own volition, too, generally.
        Mr. Baker-Shenk. I would add, Mr. Chairman, my guess is
    that if you asked those interested parties whether they feel
    that they have a voice with the Federal Government today under
    the status quo, they may feel they have a better voice and
    better hearing before their local governments like tribal
    governments than they do with the distant Federal Government.
        The Chairman. We have heard from two witnesses now, and I
    will get back to them in 1 minute, that experienced a great
    deal of difficulty in reaching agreement on contracts with a
    non-BIA program. In fact, it appears that both had several
    proposals rejected or had to trim down their proposals
    considerably before they were approved. This bill somewhat
    limits the grounds for rejection and requires the Secretary to
    show validity of a rejection. Can you just briefly describe the
    current process of denial for a non-BIA contract proposal by
    the Secretary?
        Mr. Baker-Shenk. Yes; it is different between contract
    proposals now, given some reforms in title I, and what is the
    law in title IV unamended by this bill. That is why this
    amendment is so necessary. It would have permitted the tribes
    represented earlier to at some point much earlier in the 6-year
    process or even longer with respect to Flathead, I believe, to
    have said, enough is enough; this is our final offer; and any
    declination needs to fit the narrow statutory reasons that are
    really mirrored on what a contracting tribe can impose under
    title I. It would provide an end point, a fair appealable end
    point to otherwise protracted negotiations.
        Let me say one thing. I do not represent the Council of
    Athabascan, but I am led to believe that the wonderful, far-
    reaching, forward-moving agreement that was recently signed, at
    the end of the day really amounted to just about $60,000 in
    value. While money is not the only way to value agreements
    between governments, it is one way to measure it. Six years for
    $60,000, you know, some would say, well, it is very important
    to get a foot in the door, and I would be the first to say the
    first has to get in the door; you have to start somewhere; a
    long journey begins with a small step. But I tell you, that
    foot is the foot of a centipede, not big foot. That is a very
    small foot in the door, and we need this kind of statute to
    permit tribes to reasonably advance self-governance authorities
    to other bureaus than the BIA.
        The Chairman. And maybe the last question or two. Chairman
    Matt told us in his testimony that his tribe had been
    negotiating with a regional office of the Fish and Wildlife
    Service. Is that the normal process, or do they normally talk
    to a central office when they are negotiating a contract or a
    compact?
        Mr. Baker-Shenk. The departments in various administrations
    have delegated that authority to the regional administrators of
    the various bureaus. In the end, I believe it comes to
    headquarters, to central, but much of the negotiation, and so
    Mr. Chairman, with all due respect, you do have a non-uniform
    command and control problem. Some areas or regions are
    resistant completely; others are willing to talk and strike a
    negotiation stance that is reasonable.
        The Chairman. Thank you.
        Mr. Strommer, if I could go to you. You said the Council of
    Athabascan Tribal Governments has 10 tribes. Did I understand
    that?
        Mr. Strommer. That is correct.
        The Chairman. How many villages does that represent?
        Mr. Strommer. Ten villages.
        The Chairman. Ten villages.
        Mr. Strommer. Each village is a tribe.
        The Chairman. Okay. And you also testified that your client
    had two 638 contract proposals denied by Fish and Wildlife
    before finally reaching an agreement. As I understand, you just
    said about two weeks ago they reached an agreement?
        Mr. Strommer. That is correct.
        The Chairman. What were the reasons given for the denials
    in all this time you have been negotiating with them?
        Mr. Strommer. Really, the scope of what the Council of
    Athabascan Tribal Governments was proposing to take over. One
    of the first proposals was submitted under title I of the act,
    so not under the self-governance authorities. That proposal was
    rejected outright by the Department on the basis that none of
    the programs that the Department operated within the Yukon
    Flats Wildlife National Refuge were programs that benefitted
    Indian exclusively. They took a very narrow reading of the
    scope of contractibility.
        The Chairman. They were afraid you would take over. ``We
    cannot let you do that; you might determine your own future,''
    that sort of thing.
        Mr. Strommer. The Council then resubmitted proposals that
    were subsequently tailored down several times. Up until the
    breakthrough that came about 6 months ago, the Department,
    frankly, was very resistant in sitting down across the table to
    have a meaningful discussion over the scope of the programs
    that the Department was willing to transfer over.
        The Chairman. The differences between the original
    proposals and the final agreement with the Service, did it
    diminish what your tribal governments had planned?
        Mr. Strommer. Rather dramatically.
        The Chairman. Quite dramatically.
        Mr. Strommer. Rather dramatically.
        The Chairman. As I understand it, the contract agreed to on
    April 30 does not involve a significant amount of funding. This
    gets a little bit to what Mr. Baker-Shenk said. Is that true?
        Mr. Strommer. Close to $60,000.
        The Chairman. $60,000.
        Mr. Strommer. And it is not money that is actually coming
    out of the refuge budget. It is coming out of other pots of
    money that the Department has. So the Department has not
    actually transferred over any funds directly out of the refuge
    budget. That budget is going to remain intact.
        The Chairman. I wonder how much it cost them to go through
    6 years of negotiating, as opposed to the $60,000. Talk about
    efficient use of Federal money. How much program funding did
    the Service retain for administrative purposes or overhead or
    whatever?
        Mr. Strommer. I cannot quote a figure as I sit here, but I
    certainly can provide the information.
        The Chairman. Would you provide that? I would be interested
    if know if that was more than the $60,000.
        Mr. Strommer. It is significantly more.
        The Chairman. Significantly more.
        Mr. Strommer. I will provide it to you.
        The Chairman. Please do.
        Did the Council have any opposition from outside groups in
    its efforts to reach an agreement with the Service.
        Mr. Strommer. It did. In the last 6 months, the notice of
    the agreement that was negotiated between the Fish and Wildlife
    Service and the Council was published in two newspapers, one in
    Fairbanks and one in Anchorage. Public hearings were held. At
    the end of the comment period, approximately 170 comments were
    submitted.
        The Chairman. What were some of the objections?
        Mr. Strommer. Transferring anything to Indian tribes.
        The Chairman. ``Oh, we cannot let them do that.'' Right.
        Mr. Strommer. It was one large category. There were people
    who had genuine concerns associated with environmental issues
    and questioned the scope of the agreement, the scope of the
    Council's authority, what role the United States would continue
    to play in the management of the Refuge.
        But there were also some very supportive comments submitted
    by conservation and environmental organizations, as well as
    other tribes and tribal organizations. But by far the bulk of
    the comments that were submitted were in opposition to the
    agreement.
        The Chairman. Thank you.
        Mr. Strommer. I should say, if I can add one comment.
        The Chairman. Yes.
        Mr. Strommer. After all the comments came in, the Council
    sat down with Fish and Wildlife Service and negotiated
    amendments to the agreement that reflected some of the more
    important issues that Fish and Wildlife felt that it needed to
    address as a result of the comments. So the end agreement did
    take into account the comments that were submitted, and there
    were a number of changes that were made to try to address them
    and address the issues adequately.
        The Chairman. Thank you for your testimony and your
    answers.
        Chairman Matt, you have indicated that your tribe was one
    of the original 10 self-governance tribes. You have been
    operating the programs for a good number of years, and as I
    understand it you have the reputation for operating those
    programs very successfully. What do you attribute that success
    to in operating the programs? Why are some tribes still
    hesitant to embrace the Self-Determination Act of contracting
    and self-governance compacting? Just a fear of eroding the
    trust responsibility?
        Mr. Matt. I am not really sure, but in our case the
    flexibility of self-governance that allows the tribes to
    operate a program is one of the reasons that makes us
    successful. Another thing that I can think of is having a
    stable tribal government, and then something that was touched
    on a little bit, having the professional and adequate staff to
    manage these programs that we take over.
        But thinking about why other tribes are reluctant to take
    over and manage some of these programs, I simply do not
    understand it. I try to think about Indian country overall,
    some of the tribes I know not only in Montana, but throughout
    the Midwest, and I was trying to think about why would they be
    reluctant. Maybe it is the fear of the unknown and the fact
    that maybe their tribal governments feel they are not as
    stable, and maybe they do not have the capabilities or the
    professional staff like we do to manage the programs.
        The Chairman. After 10 years of negotiating with the Fish
    and Wildlife Service for the National Bison Range, you are
    close to an agreement. First of all, how close are you to
    getting the agreement? Where do the negotiations stand now?
        Mr. Matt. We are far away, and we are really close. This
    afternoon we have some meetings lined up and we will know a
    little more.
        The Chairman. Do you think in your experience that there
    might be some kind of a model in there that we can improve
    Title IV to make sure other tribes do not have to also engage
    in a 10-year process to assume management of eligible non-
    bureau programs located in Interior?
        Mr. Matt. I would hope that we would be able to develop a
    model of some sort to lessen the frustration and the time frame
    that we went through. But it is really interesting to sit here
    and listen to what the Athabascan Tribal Government went
    through because the similarities are the same.
        The Chairman. After 10 years, were you inclined to give up
    a couple of times?
        Mr. Matt. You know, it has been a frustrating process. I
    think that one of the things that became apparent to me is it
    is not that we can't do it; I think there is a fear that we
    can.
        The Chairman. Yes; I am sure you experienced some
    opposition as Indians do with anything when they try to move
    ahead. What was some of the flavor of the opposition when you
    were talking about a National Bison Range?
        Mr. Matt. I have said it in the past, when it comes to
    Flathead, Salish-Kootenai and our reservation, it seems like
    there is a vocal minority almost at every juncture that the
    tribe has taken to be more self-determined, take over programs
    such as Mission Valley Power; when we negotiated with the state
    on a hunting and fishing agreement so that non-Indians would be
    able to hunt and fish on the reservation, this minority of
    folks will come out of the woodwork and they are very effective
    at coming back here and then through the local media generate
    some opposition that was maybe similar in Alaska, too.
        The Chairman. But you run the Mission Valley Power facility
    now. Doesn't everybody benefit from that, Indian and non-Indian
    alike?
        Mr. Matt. Yes; as I mentioned in my testimony, there are
    over 22,000 customers and it is one of the better run utilities
    in northwestern Montana.
        The Chairman. And many of them are non-Indian.
        Mr. Matt. It has gotten many recognitions for how the tribe
    has managed that utility.
        The Chairman. When you were negotiating the National Bison
    Range, did you get any opposition from rancher groups worried
    about brucellosis, as an example?
        Mr. Matt. I cannot think of too many specifically, but I am
    sure that would be an obvious concern throughout Montana
    because it does get rancher folks worried about it. It is a
    totally different environment on the National Bison Range. They
    are totally confined within 25,000 acres and they are managed
    very well.
        The Chairman. I appreciate it. I will follow up with a few
    written questions, as I am sure some of the members may do too.
    I am hoping that perhaps we can bring this bill back before we
    adjourn for consideration. We only have about 58 more working
    days this Congress before they adjourn in October. Frankly, we
    are not sure what we are going to be able to get through from
    this committee, but this is a really high priority for me and I
    know it is for Senator Inouye, too.
        With your help and with some ongoing dialog with Interior,
    hopefully we will be able to get something out that will be of
    lasting benefit to tribal groups.
        Thank you very much for appearing here today. We will keep
    the record open for 2 weeks for any additional comments that
    you would like to make, or anybody that is in the hearing room
    today.
        Thank you, and this hearing is adjourned.
        [Whereupon, at 11:15 a.m., the committee was adjourned, to
    reconvene at the call of the Chair.]

    =======================================================================

                                A P P E N D I X

                                  ----------

                  Additional Material Submitted for the Record

    =======================================================================

    Prepared Statement of David W. Anderson, Assistant Secretary for Indian
              Affairs, Department of the Interior, Washington, DC

        Good morning, Mr. Chairman, Mr. Vice Chairman, and members of the
    committee. I am pleased to be here today to provide the
    Administration's position on S. 1715, a bill to amend Title IV of the
    Indian Self-Determination and Education Assistance Act.
        In 1988, Congress amended the Indian Self-Determination and
    Education Assistance Act [the act] by adding title III, which
    authorized the Self-Governance demonstration project. in 1994, Congress
    again amended the act by adding title IV, establishing a program within
    the Department of the Interior to be known as Tribal Self-Governance.
    The addition of title IV made Self-Governance a permanent option for
    tribes. These amendments authorized federally recognized tribes to
    negotiate funding agreements with the Department of the Interior
    [Department] for programs, services, functions or activities
    administered by the Bureau of Indian Affairs [BIA] and, within certain
    parameters, authorized such funding agreements with other bureaus of
    the Department. In the year 2000, the act was amended again to include
    titles V and VI, making Self-Governance a permanent option for tribes
    to negotiate compacts with the Indian Health Service [IHS] within the
    Department of Health and Human Services and providing for a now-
    completed study to determine the feasibility of conducting a Self-
    Governance Demonstration Project in other programs of that Department.
        In 1990, the first seven funding agreements were negotiated for
    about $27 million in total funding. For fiscal year 2004, there are 83
    agreements that include 227 federally recognized tribes and about $300
    million in total funding. Some of these agreements are with tribal
    consortia, which account for the number of such tribes exceeding the
    number of agreements. These funding agreements allow federally
    recognized tribes to provide a wide range of programs and services to
    their members such as law enforcement, scholarships, welfare
    assistance, and housing repairs just to mention a few. Many of the
    funding agreements include trust related programs such as real estate
    services, appraisals, probates and natural resource programs such as
    forestry, fisheries, and agriculture. What makes these funding
    agreements unique is that title IV allows tribal governments to re-
    design programs and set their own priorities consistent with Federal
    laws and regulations. This authority allows tribal leaders the ability
    to respond to the unique needs of their tribal members without seeking
    approval by Departmental officials.
        Many tribes have been successful implementing Self-governance
    programs to meet their tribal needs. For example, the Salt River Pima-
    Maricopa Indian Community was able to accomplish the following in 2002:
    1) delivered welfare assistance and child welfare services to 676 cases
    including placing 19 children in Indian homes, 29 children into non-
    Indian homes and reunifying 12 families, 2) provided scholarships and
    educational counseling to 42 tribal members, 3) responded to 772 Part I
    offenses including 3 homicides and 97 burglaries and 187 motor vehicle
    thefts and 3,395 other offenses including assaults, DUI's, runaways and
    domestic violence, 4) maintained 131 miles of roads, processed, and 5)
    prepared 5 probate cases; and submitting 30 conveyances to the BIA to
    be approved and recorded. This example is just one of many where tribes
    have been successful in directly administering Federal programs.
        In addition, title IV authorizes funding agreements throughout all
    bureaus within the Department of the Interior. On April 30, 2004, the
    Secretary signed an agreement between the Council of Athabascan Tribal
    Governments [Council] and the Fish and Wildlife Service [Service] that
    will enable the Council to perform certain functions previously
    provided by the Service on the Yukon Flats National Wildlife Refuge in
    Alaska during fiscal year 2004-05. This agreement was the first of its
    kind between the Service and a federally recognized Indian
    organization. In addition, in fiscal year 2004-05 there will be four
    tribal funding agreements with the Bureau of Reclamation and four
    tribal funding agreements with the National Park Service.
        The Department has concerns with this bill, S. 1715, and we would
    like to work with the committee to ensure that this legislation does
    not adversely impact our ability to meet our trust responsibilities. In
    particular, the Department is concerned with subsection 409(l), which
    would permit a tribe to cease performance if it appears the expenditure
    of funds is in excess of the amount of funds transferred under a
    compact or funding agreement. If the Secretary does not increase the
    amount of funds transferred under the funding agreement, a tribe would
    be permitted to suspend performance of the activity until such time as
    additional funds are transferred. We have concerns about the impact
    this provision may have, especially on fiduciary trust functions. Under
    this provision, if a tribe contracts with the Department to administer
    IIM accounts and then decides there is not enough money to administer
    the accounts, the tribe could simply stop making IIM distributions to
    IIM account holders. It is imperative that a tribe perform any
    fiduciary function it contracts or compacts for regardless of the level
    of funding. The tribe should return the function to the Department to
    administer if they believe that the funding level is inadequate rather
    than have their members suffer if the tribe decides not to perform.
        In addition, Section 405(b)(1)(B) also broadens application of
    funding agreements to authorize tribes to contract for all programs to
    which Indian tribes or Indians are primary or significant
    beneficiaries. Current law allows federally recognized tribes to assume
    programs administered by the Department's bureaus and offices other
    than the BIA subject to negotiations and as long as the programs are
    available to Indian tribes or Indians. We would recommend that section
    405(b)(1)(B) be made discretionary and subject to the terms of the
    agreement for programs which Indian tribes or Indians are the primary
    or significant beneficiaries.
        Finally, the Department is concerned with the reassumption
    provision contained in section 407. The provision would require that
    imminent jeopardy, substantial jeopardy, and irreparable harm be met
    simultaneously in order for the Secretary to reassume a program. This
    is a very high standard to achieve. Having to prove all three
    conditions practically eliminates the ability of the Secretary to
    quickly reassume a program in those rare instances where such an
    immediate reassumption may be necessary, such as instances where
    serious injury or harm may occur. The Department would recommend that
    the reassumption standard contained in the current title IV be
    retained.
        While we believe that S. 1715 is moving in the right direction to
    expand Self-Governance, we cannot support the legislation at this time,
    especially given the current high priority for trust reform and the
    impact this legislation would potentially have to that critical
    program. We would like to work with the committee and the tribes in
    developing alternative language to address our concerns.
        Mr. Chairman, this concludes my statement and I will be happy to
    answer any questions you may have.
         U.S. Department of the Interior Office of the
                                              Secretary
                                                        Washington, DC.
    Hon. Ben Nighthorse Campbell,
    Chairmam, Committee on Indian Affairs
    U.S. Senate, Washington, DC.

        Dear Mr. Chairman: I am pleased to provide the responses to the
    questions submitted following the May 12, 2004 hearing held by your
    committee on S. 1715, the ``Department of the Interior Tribal Self-
    Governance Act of 2003.''

                Sincerely,
                                       Jane Lyder, Legislative Counsel,
                                           Office of Congressional and
                                           Legislative Affairs.

    1. The Administration's testimony indicates that it fears Self-
    Governance tribes will stop performing contracts if they don't receive
    ``enough'' funding under the agreements they negotiate with the
    Department. I must say that I find somewhat curious these concerns
    about tribes refusing to perform contracts because of insufficient
    funding.

    Over the years we have had dozens of tribes appear before this
    committee complaining that they have been forced to perform 638
    contracts with inadequate funding--particularly when it comes to
    Contract Support Costs.

    Question 1A: If a tribe ceases to perform under a 638 contract, doesn't
    the Department have the authority to step in and take over the program
    or services?

    Answer: Yes; the Department does have the authority to reassume a
    tribal contract under section 109 of the Indian Self-Determination and
    Education Assistance Act of 1975, as amended. However, under S. 1715,
    subsection 409(l), a tribe would be permitted to suspend performance of
    the activity they have compacted or contracted until such time
    additional funds are transferred. It is imperative that a tribe perform
    any fiduciary function it contracts or compacts for. The tribe, should
    return the function to the Department to administer if they believe
    that the funding level is inadequate rather than have their members
    receive inadequate service if the tribe decides not to perform.

    Currently, the Department has two recourses for reassuming a tribal
    contract: Emergency and non-emergency reassumption. An emergency
    reassumption occurs if a tribe fails to fulfill the requirements of the
    contract and this failure poses an immediate threat or imminent harm to
    the safety of any person, or imminent substantial and irreparable harm
    to trust funds, trust lands, or interest in such lands.

    A non-emergency reassumption occurs if there has been a violation of
    rights or endangerment of health, safety, or welfare of any person or
    gross mismanagement in the handling of contract funds, trust funds, or
    interest in trust lands under the contract. Tribes have the right to
    appeal the emergency or non-emergency reassumption.

    Question 1B: Isn't it part of the negotiation process for a tribe and
    the agency to negotiate and arrive at some agreement on what
    constitutes ``sufficient'' funding under any given contract, compact,
    or funding agreement?

    Answer: ``Sufficient funding'' is not the criterion used in determining
    the amount included in a Public Law 93-638 contract or Self-Governance
    funding agreement. The criteria used for determining the amount in a
    funding agreement is contained in section 106(a)(1) of the act which
    states, in part ``...the amount of funds provided under the terms of a
    self-determination contract entered into pursuant to this act shall not
    be less than the appropriate Secretary would have otherwise provided
    for the operation of the programs or portions thereof for the period
    covered by the contract,...''

    Question 1C: How many times has a tribal contractor ceased performing
    its responsibilities without warning to the Department?

    Answer: To our knowledge, no tribe has ceased performing its
    responsibilities under a Self-Determination Contract without warning.
    Contracting tribes do have the right to retrocede a program, service,
    function or activity as provided by Subpart P, Section 900.241 of the
    Code of Federal Regulations, but must inform the Department to do so.

    2. In its comments on S. 1715, the BIA indicates that it wants non-BIA
    program contracting to be ``discretionary'' and you also note a concern
    with broadening the application of Self-Governance to include non-BIA
    programs unless the contracts are ``discretionary''' for the Secretary.

    Question 2A: If that change were made, wouldn't we actually be
    narrowing, rather than expanding, Self-Governance?

    Answer: No; self-governance would not be narrowed. Non-BIA Bureaus will
    continue to have the same existing authority to enter into agreements
    with tribes. We believe that it is better to negotiate non-BIA Bureau
    programs that are not for the benefit of Indians because of their
    status as Indians on a case-by-case basis where both parties, the tribe
    and the non-BIA Bureaus, have the ability to consider all interests.

    Question 2B: Under the current law, it has taken several tribes years
    to obtain agreements on contracting non-BIA programs. If it became
    discretionary, can we really expect that it would become easier for
    tribes to obtain those contracts?

    Answer: While the timeframes for some non-BIA Self-Governance
    negotiations have been long, one of the reasons is the difficulty in
    accommodating the interests of other affected parties. The Department
    believes that such agreements should remain discretionary so that all
    affected interests can be accommodated.

    3. The BIA is also concerned that the reassumption standards that the
    Department must meet before reassuming responsibility for a contract or
    compact are too high. You also mention that the reassumption standard
    in section 407 of S. 1715 is too high.

    Question 3: How would the standard for reassumption contained in S.
    1715 interfere with or prevent the execution of the Department's trust
    responsibility?

    Answer: The immediate reassumption by the Secretary, as contemplated by
    the preamended version of S. 1715, would have set too high a standard.
    Section 407(b)(3) would have required that three conditions (1)
    imminent jeopardy, (2) substantial jeopardy, and (3) irreparable harm
    be met simultaneously. This standard practically eliminated the ability
    of the Secretary to quickly reassume a program, in those rare
    instances, where such an immediate reassumption may be necessary. This
    section also stated that imminent jeopardy would arise out of the
    failure to carry out the compact agreement. Since funding agreements
    are not specific in terms of scope of work, this would be difficult, if
    not impossible, to argue, We are pleased S. 1715 was amended to retain
    the reassumption standard contained in the current title IV.

    4. The Department evidently cannot support S. 1715 because of what your
    testimony says is the ``high priority'' for trust reform. Trust reform
    is a top priority for the Department, the tribes, and this committee,
    but If I understand your testimony, the Department cannot support this
    bill because it will somehow interfere with trust reform.

    Question 4A: What specifically, either in S. 1715 or in a general trust
    modest expansion of Self-Governance within the Department will cause
    problems for the trust reform efforts now underway?

    Answer: We believe by including the definitions of ``tribal share'' and
    ``inherently Federal function'' in the bill, that trust reform will
    significantly be impeded. The bill defines a tribal share as ``. . an
    Indian tribe's portion of all funds and resources that support
    secretarial included programs that are not required by the Secretary
    for the performance of inherent Federal functions.'' ``Inherent Federal
    function'' is defined as ``. . a Federal function that cannot legally
    be delegated to an Indian tribe.'' This is of particular concern since
    Section 405(b)(1), of S. 1715, treats the Office of the Special Trustee
    the same as the Bureau of Indian Affairs.

    These definitions offer no statutory parameters to support the
    Secretary's identification of functions that the Federal trustee must
    retain. We are concerned that the broad definitions pave the way for
    challenges to the Secretary's authority to reserve trustee functions
    and to retain funds to meet her trust responsibility.

    Resolving such challenges would require time-consuming negotiation,
    litigation, or legislation that could hinder the pace of trust reform.
    For, with every challenge, the Secretary would be required to show that
    a trustee function cannot ``legally be delegated to an Indian Tribe.''
    In today's trust reform environment, such delays would be untenable.

    Question 4B: I believe Self-Governance--and the negotiating process
    between the tribes and the Department in terms of standards of
    performance, resources management and the like--is part and parcel
    ``trust reform'' because it is changing the face of the Department and
    what the Department is called on to do in Indian communities. Do you
    agree that Self-Governance holds the key to large-scale reform of the
    Department in the years to come?

    Answer: A goal and objective of the Department's Comprehensive Trust
    Management Plan is to promote ``Self-Governance and Self-
    Determination.'' The Department is committed to providing trust
    services to Indian country more efficiently and effectively than in the
    past. Some, of these trust services will be provided by tribes or
    tribal consortia under compacts and Public Law 93-638 contracts, and
    other trust services will be provided by the Bureau of Indian Affairs
    and by the Office of the Special Trustee. Tribal governments have been
    and will continue to be an integral part of the Department's plans for
    the delivery of trust services.

    5. Your testimony notes that in 2004-05 there will be 8 new Annual
    Funding Agreements signed: Four with the Bureau of Reclamation, and
    four with the National Park Service.

    Question 5: Can you give more details about these agreements in terms
    of the activities to be covered by the agreements, the amount of the
    agreements, how long they took to negotiate, and when in 2004-05 they
    will be finalized?

    Answer: In fiscal year 2004, four agreements were negotiated by the,
    National Park Service [NPS] as follows:

       \\\\\\An annual funding agreement was negotiated and entered
            into with the Grand Portage Band of Chippewa Indians [Band].
            NPS provided $219,000 for the Band to perform the entire
            maintenance program at Grand Portage National Monument. The
            agreement also includes $88,000 for additional projects
            including fire suppression system excavation, fire hydrant
            replacement, and a handicap accessible pathway project.

       \\\\\\An annual funding agreement was negotiated and entered
            into with the Yurok Tribe. NPS provided $120,000 for the tribe
            to perform an archaeological investigation and a historic
            resources study for the relocation of the park maintenance
            facility from Requa to Aubell; $5,000 for the tribe to produce
            an ethnographic overview; and $7,000 for the tribe to perform
            an archaeological investigation of Alder Camp Road in Redwood
            National and State Parks.

       \\\\\\An annual funding agreement was negotiated and entered
            into with the Lower Elwha Tribal Community. NPS provided
            $218,977 for the Lower Elwha Tribal Community to perform
            activities in relation to the restoration with the Elwha River
            Ecosystem and Fisheries Restoration Act of 1992 [Pub. L. 102-
            495].

       \\\\\\An annual funding agreement was negotiated and entered
            into with the Tanana Chiefs Conference, Inc. The NPS provided
            $2,177,300 to the Conference for the design and construction of
            the Morris Thompson Cultural Center.

    While it is difficult to estimate or generalize the amount of time
    needed to negotiate an annual funding agreement, NPS has found that
    once an initial agreement has been negotiated and entered into, it is
    substantially less time consuming to amend or to extend it for another
    year. For example, the initial agreement between the Grand Portage
    National Monument and the Grand Portage Band took months to negotiate,
    but once it was in place, subsequent negotiations took only weeks. At
    Olympic National Park, the agreement that began in fiscal year 2002
    took approximately 150 person hours by the NPS and Solicitor's Office
    to negotiate. However, by fiscal year 2004, an annual funding agreement
    took only about 30 person hours to negotiate. Once the initial
    agreement was in place at Redwood National and State Parks, negotiating
    the next two agreements took approximately 80 person hours each.

    In fiscal year 2004, the Bureau of Reclamation had or will have the
    following four Self-Governance annual funding agreements signed:

       \\\\\\The Gila River Indian Community received $12,814,000
            to plan, conduct, consolidate, and administer Reclamation's
            Gila River Indian Community--Indian Distribution System and to
            perform all functions and activities associated with the
            Operation and Maintenance of the Central Arizona Project
            Repository Project and curation of the Phoenix Area Office
            Archaeological Collection. The annual funding agreement took
            approximately 6 weeks to negotiate and became effective on
            October 8, 2003.

       \\\\\\The Karuk Tribe will receive $51,000 to continue to
            conduct data collection and analysis needed to assist in the
            restoration of fish and wildlife population with the Klamath
            River basin. The annual funding agreement took approximately 2
            weeks to negotiate and is currently before Congress for the
            required 90 day review. It will become effective on August 10,
            2004.

       \\\\\\The Yurok Tribe will receive $741,153 to continue to
            conduct data collection and analysis needed for the purpose of
            assisting in the achievement of long-term fish and wildlife
            restoration goals in the Trinity and Klamath basins. The annual
            funding agreement took approximately 1 month to negotiate and
            is currently before Congress for the required 90-day review. It
            will become effective on August 10, 2004.

       \\\\\\The Duckwater Shoshone Tribe of Nevada will receive
            $50,000 to conduct data collection and analysis needed to
            assess the water resources of the tribe and their 3,800-acre
            reservation located in central Nevada. The AFA took
            approximately 2 weeks to negotiate and is in the process of
            being sent to the Congress for the required 90 day review. It
            is anticipated that the AFA will become effective in September,
            2004.

    6. We heard testimony from the Council of Athabascan Tribal Governments
    [CATG] and the Confederated Salish and Kootenai Tribes regarding the
    lengthy negotiations--6 and 10 years, respectively--before the
    agreements were consummated. Not only are these extremely long periods
    of negotiation but for the CATG agreement, for example, which is for
    $60,000, I am curious what amount of staff hours and costs were
    involved in the negotiations.

    Question 6A: Please provide the committee with figures for the total
    cost of negotiation to the Department in dollar and man-hour terms.

    Answer: The Department received the formal proposal that led to the
    U.S. Fish and Wildlife Service's [Service] annual funding agreement
    with the Council of Athabascan Tribal Governments [CATG] on June 16,
    2003, approximately 10 months before the agreement was signed. We
    estimate the direct costs [travel, newspaper advertisements,
    transcription costs, et cetera] to be about $10,000.

    In terms of staff time devoted to the agreement, the development of the
    tentative annual funding agreement required approximately 30 percent of
    the Refuge Manager's time over the 10-month negotiation period, 30
    percent of the Refuge Supervisor's time, and much smaller percentages
    of several other employees' time. There was also a considerable amount
    of effort put into this project by the Department's Solicitor's Office.
    We would expect these costs and time commitments to go down
    significantly for any successor agreements with CATO.

    Regarding the length of time for the negotiations, as stated above,
    this agreement took approximately 10 months to negotiate and sign. The
    Service had received two previous proposals from CATG to perform some
    or all of the ``programs, functions, services, and activities'' at the
    Yukon Flats National Wildlife Refuge; the first on November 25, 1998,
    and the second on November 5, 2001. Both of these requests were
    declined. In the first instance, CATO proposed to take over programs,
    functions, services and activities under title I of the Indian Self-
    Determination and Education Assistance Act [ISDEAA], which does not
    apply to the programs of the National Wildlife Refuge System and CATO
    had not yet been qualified by the Office of Self-Governance as a self-
    governance tribe. The Service suggested CATO contact the Service when
    they were qualified. In 2002, we declined their second proposal under
    title IV within the 10 day period prescribed by regulation, following a
    July 2002 ``pre-negotiation'' meeting. The primary reason CATG's
    proposal was declined in the second instance was because CATG had
    proposed to take over most programs, functions, services, and
    activities at the refuge. CATG appealed to the Director, saying they
    would scale back their request. The Director upheld the Regional
    Director's decision, which was [and had to be] based on the CATG's
    position in the pre-negotiation meeting, but urged them to proceed with
    a more limited request.

    Question 6B:. Can you also provide for the committee from the CATG and
    the Salish and Kootenai Tribes agreements with the Fish and Wildlife
    Service breakdowns of what the tribes are to receive for funding, where
    that funding comes from, and what percentage of the budget that funding
    represents for the specific parks subject to the agreements?

    Answer: The agreement with the Council of Athabascan Tribal Governments
    [CATG] does not involve National Parks.

    At the Yukon Flats National Wildlife Refuge [NWR], managed by the
    Service, CATG will receive: (1) $13,000 to assist in educating local
    residents about Federal easements established by section 17(b) of the
    Alaska Native Claims Settlement Act and to help locate, map, and sign
    some of these easements; (2) $10,000 to assist with Refuge
    environmental education and outreach programs in the Yukon Flats
    villages; (3) $18,000 to collect subsistence harvest information on
    moose, bears, wolves, and furbearers, including the month of harvest
    and geographic location; (4) $13,000 to assist in inventorying the
    moose population in the eastern Yukon Flats, and (5) $5,000 to provide
    maintenance of Government facilities and equipment in Fort Yukon.

    The Yukon Flats NWR budget for fiscal year 2004 is $1,770,000. The
    $59,000 that CATG will receive in the annual funding agreement is about
    3.4 percent of the Refuge's budget.

    A funding agreement between the Service and the Confederated Salish and
    Kootnai Tribes for functions and programs at the National Bison Range
    has been negotiated and is currently under public review.

    [GRAPHIC] [TIFF OMITTED] T3687.001

    [GRAPHIC] [TIFF OMITTED] T3687.002

    [GRAPHIC] [TIFF OMITTED] T3687.003

    [GRAPHIC] [TIFF OMITTED] T3687.004

    [GRAPHIC] [TIFF OMITTED] T3687.005

    [GRAPHIC] [TIFF OMITTED] T3687.006

    [GRAPHIC] [TIFF OMITTED] T3687.007

    [GRAPHIC] [TIFF OMITTED] T3687.008

    [GRAPHIC] [TIFF OMITTED] T3687.009

    [GRAPHIC] [TIFF OMITTED] T3687.010

    [GRAPHIC] [TIFF OMITTED] T3687.011

    [GRAPHIC] [TIFF OMITTED] T3687.012

    [GRAPHIC] [TIFF OMITTED] T3687.013

    [GRAPHIC] [TIFF OMITTED] T3687.014

    [GRAPHIC] [TIFF OMITTED] T3687.015

    [GRAPHIC] [TIFF OMITTED] T3687.016

    [GRAPHIC] [TIFF OMITTED] T3687.017

    [GRAPHIC] [TIFF OMITTED] T3687.018

    [GRAPHIC] [TIFF OMITTED] T3687.019

    [GRAPHIC] [TIFF OMITTED] T3687.020

    [GRAPHIC] [TIFF OMITTED] T3687.021

    [GRAPHIC] [TIFF OMITTED] T3687.022

    [GRAPHIC] [TIFF OMITTED] T3687.023

    [GRAPHIC] [TIFF OMITTED] T3687.024

    [GRAPHIC] [TIFF OMITTED] T3687.025

    [GRAPHIC] [TIFF OMITTED] T3687.026

    [GRAPHIC] [TIFF OMITTED] T3687.027

    [GRAPHIC] [TIFF OMITTED] T3687.028

    [GRAPHIC] [TIFF OMITTED] T3687.029

    [GRAPHIC] [TIFF OMITTED] T3687.030

    [GRAPHIC] [TIFF OMITTED] T3687.031

    [GRAPHIC] [TIFF OMITTED] T3687.032

    [GRAPHIC] [TIFF OMITTED] T3687.033

    [GRAPHIC] [TIFF OMITTED] T3687.034

    [GRAPHIC] [TIFF OMITTED] T3687.035

       DEPARTMENT OF HEALTH AND HUMAN SERVICES TRIBAL SELF-GOVERNANCE ACT

                                  ----------

                            WEDNESDAY, MAY 19, 2004

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The committee met, pursuant to other business, at 10:02
    a.m. in room 485, Russell Senate Building, Hon. Ben Nighthorse
    Campbell (chairman of the committee) presiding.
        Present: Senator Campbell.

            STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S.
             SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON
                             INDIAN AFFAIRS

        The Chairman. We will move straight to the hearing part of
    our meeting this morning. This morning, the committee will take
    up S. 1696, the Department of Health and Human Services Tribal
    Self-Governance Amendments of 2003. This is a bill that I
    introduced last October, along with our Vice Chairman, Senator
    Inouye. Unlike most other policies in courtrooms affecting
    Native people, we can say with a great deal of certainty that
    self-governance does work. Self-governance has resulted in
    tribal governments with enhanced capacities, better services
    for tribal members, and a greater degree of tribal
    decisionmaking and resource allocation that at any time in the
    past 150 years.
        With over one-half of the budget of the Indian Health
    Service administered by Indian tribes, the trend is towards
    greater degrees of contracting and compacting. In 2000, I was
    very proud to sponsor the bill that made self-governance in the
    IHS permanent. It is now time to take the next logical measured
    step in expanding self-governance to include the non-IHS
    programs in the Department of Health and Human Services.
        I will submit my complete statement for the record, as will
    other members who are not here.
        [Prepared statement of Senator Campbell appears in
    appendix.]
        [Text of S. 1696 follows:]

        The Chairman. I do want to note the absence of any
    representative from the Department of Health and Human
    Services, which for reasons beyond my understanding have chosen
    not to send a witness to today's hearing. I have to say as a
    matter of record that I am not at all pleased with the response
    we have gotten from the Administration when we are taking up
    Indian issues that I believe are really measured to try to help
    Indian tribes become more independent of the Federal
    Government's tethering. Perhaps then not being here is an
    indication they support the bill and just do not want to tell
    us. Hopefully, that is the case.
        So if there are no other opening statements, we will go
    ahead to our first and only panel today. That will be Don
    Kashevaroff, chairman of the Alaska Native Tribal Health
    Consortium; Alvin Windy Boy, nice to see you, Alvin. I have not
    seen you for a good amount of time, but hopefully I will see
    you at some of the pow-wows. I am coming to your Fourth of July
    big pow-wow. It is going to be a lot of fun, and homecoming for
    me.
        Mr. Windy Boy. I might come out of retirement. [Laughter.]
        The Chairman. Okay. And Ron Allen, chairman of the
    Jamestown S'Klallam Tribal Council from Washington; Mickey
    Peercy, executive director of Management and Operations,
    Choctaw Nation of Oklahoma, from Durant, OK.
        If you gentlemen would all sit down, we will go ahead and
    start with you, Don. For all of the people testifying today, if
    you would like to submit your complete written testimony, that
    will be included in the record. If you would like to
    abbreviate, that is fine.

    STATEMENT OF DON KASHEVAROFF, PRESIDENT/CHAIRMAN, ALASKA NATIVE
                        TRIBAL HEALTH CONSORTIUM

        Mr. Kashevaroff. Thank you, Mr. Chairman. Yes, please
    accept my written testimony. Good morning to you and committee
    members. I am pleased to testify today in strong support of S.
    1696, the Department of Health and Human Services Tribal Self-
    Governance Amendment Act.
        My name is Don Kashevaroff. I am the president of the
    Seldovia Village Tribe. I am also the chair and president of
    the Alaska Native Tribal Health Consortium.
        In my written comments, I discuss some of the benefits of
    S. 1696 and similar to what the chairman started out with
    today, that it will increase efficiency, allow us to redesign
    and to really help our people. I was kind of going to really
    veer off the topic since I understand that no one from the
    Administration is going to be present, so for the next few
    minutes, let me go this way.
        For the last 3 weeks, I have been doing nothing but
    budgets, budget meetings, budget meetings, budget meetings.
    HHS, we had a meeting with them last week, our consultation
    meeting. HHS has a $500 billion budget. I cannot count that
    high. I cannot imagine how much money that is, but it is a lot
    of money. Even around $68 billion of that is discretionary,
    meaning that they can spend it, or the Administration can
    request to spend it anywhere they want.
        What I see out of them and I asked out of them, and maybe
    today is an indication, is, I asked them what priority are
    Indians. We have already showed over and over again that we are
    the lowest of the low when it comes to health disparities. We
    are always on the bottom rung. We are never getting ahead. HHS
    is spending about $1 billion on us; excuse me, they are
    spending around $4 billion or $5 billion. They are spending 1
    percent on us of their budget. It leads me to believe that if
    Indians were a priority, they would be spending a lot more.
        One of the reasons I think S. 1696 is very important to us
    is that right now the government does not place a priority on
    the health care of Indians. They just have too many other
    things going on which I can understand. There are wars going
    on. There is terrorism. There is a huge economy that we have to
    keep running. But what S. 1696 would allow us to do, it would
    allow the tribes through self-governance to compact some of
    those services that we are already running through HHS. We are
    already getting them in grants and things, but it would allow
    us to run them and create more efficiencies and better service
    for our people.
        The Government has been working for 50 or more years on
    Indian health care, and we are still the lowest of the low.
    Something is not working right. If something is not working
    right, you need to change something. What we need to change is
    the way we operate. Instead of the government providing the
    services, we need to let the tribes provide the services as we
    have shown over and over again.
        The other day I was flying back to Alaska, and I watched
    that movie Titanic again, to segue here. The Titanic was going
    down. It had 2 hours to sink. About 1 hour after it was going
    down still, down below on the E-deck or something they had the
    gates locked. All the low immigrants were down there and they
    were shaking the bars. The guy was standing there with the key
    saying, ``I cannot let you up.'' There were only lifeboats for
    half the people, and those immigrants were shaking the gates
    saying, ``Give us the chance to save ourselves.'' S. 1696 would
    give us the chance to save ourselves, as the previous
    compacting laws that have been passed have done.
        Let me go through two examples of what we can do when we
    start compacting. The Alaska Native Medical Center, which is
    operated by the Alaska Native Tribal Health Consortium and
    South Central Foundation since we took over has been aimed at
    innovation, aimed at excellence. We have been looking for
    customer service. We have been completely turning the culture
    of that government-run hospital around. We currently have
    achieved magnate status for nursing excellence. Only 71
    hospitals in the whole country have done this. We are the first
    IHS one, and probably the first government one, if I go to the
    records. It is something that the private sector looks for the
    best. We have achieved that.
        We have been hiring more doctors, providing more services,
    expanding the product line, and increased access. We now have
    same-day, you can walk in and get an appointment with your
    primary care provider the exact same day. We turned around our
    special clinics this year, and now you can go in and you can
    have surgery within 2 days in many of our special access
    clinics. It used to be a 3-month wait. When the Government was
    running it, it was even longer. We have been able to do that
    under the compacted mode. So we have been able to improve the
    services that we offer.
        The second example is Seldovia, my tribe, we have been able
    to expand greatly. When Seldovia took over the program, it was
    a contract health care program. IHS hired private doctors in
    the communities there, paid them money. When our folks went to
    them and got service, the money never lasted that long. That
    was fine. We took that over. We realized that with the doctors
    increasing their rate 10 to 15 percent a year because that is
    what medicine in this Nation is doing, 10 to 15 percent per
    year, and IHS just giving us 1 to 4 percent a year in CHS,
    something was wrong. We could not keep that up. We were going
    backwards every year.
        We wanted a clinic. We asked IHS for a clinic. They turned
    down our application. But we are self-governing. We have a
    priority of our people, who are number one. The Government does
    not put Indian people number one. We do, because that is our
    sole priority. I am directly elected by my folks. If I do not
    do a good job, they get somebody else in there.
        IHS said we cannot have a clinic. We went out and leased a
    clinic ourselves. We innovated, put moneys together, and now we
    have a leased clinic and we are also now building a clinic, a
    permanent clinic that we will own that is twice the size of
    what we currently lease.
        That is what we can do with compacting. That is what we can
    do if we S. 1696 is approved and we are able to take the HHS
    funds, move them under tribal management. We will have a
    priority for our people unlike the Government currently has.
        So Mr. Chairman, I really ask that you and the rest of the
    committee support and pass S. 1696 and give us a chance to save
    ourselves.
        [Prepared statement of Mr. Kashevaroff appears in
    appendix.]
        The Chairman. Okay, thank you. Ron, I have you second on
    the list. Would you like to proceed? You came in just a few
    minutes late, but I am sure you are not short of something to
    say on this issue, are you?

     STATEMENT OF RON ALLEN, CHAIRMAN, JAMESTOWN S'KLALLAM TRIBAL
                                COUNCIL

        Mr. Allen. No; I am not, Senator. I really appreciate the
    opportunity. My apologies for getting late here. All the
    construction up here makes it a little longer to get up here on
    the Hill anymore.
        Thank you, Senator. My name is Ron Allen, chairman for the
    Jamestown S'Klallam Tribe out in Washington State. You have my
    testimony sent to you with specifics.
        Self-governance clearly is an agenda that has been
    important to my tribe and to myself and my colleagues here. It
    goes back in terms of the evolution of empowering tribal
    governments. As we have testified here before this committee,
    in 1975 when the Self-Determination Act was passed it was all
    about promoting empowerment of tribal governments and reducing
    bureaucracy and allowing the tribal governments to be able to
    control their own priorities with their own communities. Self-
    governance clearly throughout the 1990's has shown that as we
    transfer more and more of the Federal bureaucracy to the Indian
    tribes, that we are better able to use these precious few
    resources that the Federal Government makes available to us
    more efficiently and more effectively for our programs.
        It provides us the flexibility to design programs with
    greater flexibility and appropriateness for our cultures and
    our communities that the Federal Government cannot do. It has
    to deal with over 560 Indian nations from Alaska to Florida,
    and the complexities of our communities are great and many.
    There is no way the Federal system could have ever created a
    system that is really going to be reflective of what the tribal
    governments really need and what the Indian communities need.
        We have shown through the success of self-governance since
    you have empowered us back in 1994, and even earlier when we
    did the demonstration phase, that it is a success; that the
    tribal governments given these resources can use these
    resources more efficiently and effectively for our communities.
    We have redesigned them. We have taken these resources and
    matched them up with tribal resources and other resources, and
    created more tribally culturally appropriate resources.
        Back when it started, when it came out of the Arizona
    Republic expose about the mismanagement of the Federal
    resources for Indian people, there was the notion that, well,
    let's just turn all the money over to the tribes, and they can
    divvy it up based on individual Indians and memberships of the
    tribe. We said back then, no, that is not the way to do this.
    The Federal Government has the fundamental moral and legal
    obligation to the tribes, and if we are going to transfer these
    responsibilities from the Federal Government over to the
    tribes, it will be based on our terms. We have been doing that
    over the course of this last 10 to 15 years.
        Now, we are moving forward into HHS. As my colleagues have
    already been testifying, we moved first with BIA and started
    into the Interior programs. We have testified to you how we
    have had some struggles with the other non-BIA programs at
    Interior. We moved quickly over to IHS, and now we are moving
    into HHS.
        So there are literally hundreds of programs over in HHS. We
    contract out for a couple of dozen different programs out
    there, so we really do not access all of the programs that HHS
    has available to us, but we did want to start moving in that
    direction very quickly. Already we realize that it is not as
    efficient by going after each of these programs individually.
    If we can go out there and negotiate for these programs and
    move them in and redesign them for our communities, relative to
    the existing resources that we get from the BIA, Interior and
    IHS, as well as HUD with the housing programs, we can use them
    more efficiently.
        HHS has shown a willingness to do that. They were a little
    hesitant and wanted to go through the study process to examine
    the viability of conducting self-governance. We said okay,
    fine, and they persuaded the Congress to conduct the study. The
    study has revealed that it is effective, it is efficient, and
    it is a good way to empower tribal governments and allow us to
    move our governments forward constructively and effectively.
        We have shown categorically, whether it is a small tribe
    like mine or a large tribe with a large land base, that it can
    move forward very effectively and we have been able to serve
    our tribe.
        We have only had a few blemishes that I would argue we
    could look back and say, well, we made some mistakes here and
    it did not quite work out the way we wanted it. As a general
    observation, if you look at the big picture, it has been an
    unequivocal success.
        So we are arguing that not only does it affirm sovereignty
    of the tribe, not only does it affirm the commitment of the
    Congress and the Administrations of the past to empower the
    tribal governments. It has shown that the tribes, who are the
    lowest end of every economic and social category that we
    measure the welfare of our society, that we are starting to
    slowly build up that capacity and move forward.
        So what we are looking for is this legislation that allows
    us to move forward from the study into the demonstration.
    Personally, we believe that we can move forward even faster,
    but that is the process that the Administration has shown a
    willingness to move forward. We would like to see the Congress
    pass this legislation so that we can now move into that phase
    and show to the other agencies of HHS, yes, it can work.
        They have identified 11 programs. We have identified 13,
    and we argue that 13 are very relevant to what we are doing. We
    are contracting, like I said, a couple of dozen; 13 can be made
    available to us to contract out and to secure these programs,
    consistent with how we do it at the BIA and the IHS, and it is
    very reasonable; 13 against the backdrop of 300 programs that
    they have is reasonable. We think that it is a reasonable phase
    to move forward.
        The Secretary has exhibited his commitment to the tribes
    and we take that commitment in earnest, and we want to move
    that agenda forward. We have been showing that we are more than
    willing to discuss the parameters of it. We do know that some
    of the agencies do not administer these programs the same way
    that we experience over on the BIA and IHS side, and
    specifically with the contract support issue, which is a matter
    that they administer a little differently with each of these
    programs.
        The biggest issue I think that we are going to have to
    hurdle over is just the bureaucracy letting go of their
    precious programs, and the notion that if they let go of these
    programs, will they be administered to the benefit of the
    people and the constituency that they are intended for. We
    argue yes, that our experience and our history has shown that
    we will be successful; that we will make these programs work;
    and they will be working to the benefit of our community, from
    the children to the elders, programs we have, to the benefit of
    the communities as a whole, and to enhancing our families,
    which we think is really important for our communities and for
    our future.
        So I certainly join my colleagues in urging the Congress to
    pass this legislation and to encourage your colleagues to get
    behind it, because it really is the way of the future with
    regard to our Indian communities. Even though we argue that
    there is a greater need than the resources that are being made
    available, we will take what we have and make it work better
    for the benefit of our people.
        I am here to help in any way I possibly can, to answer any
    questions I possibly can, and work with you, your staff and the
    other Senators in any possible way to make this thing come to
    fruition.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Allen follows:]
        The Chairman. Thank you.
        Chairman Windy Boy?

    STATEMENT OF ALVIN WINDY BOY, CHAIRMAN, CHIPPEWA CREE BUSINESS
                               COMMITTEE

        Mr. Windy Boy. Thank you, Senator, members of the audience.
        Good morning. I greet you from the Cree and Chippewa people
    of Rocky Boy. I am here also in support, along with my
    colleagues, an initiative that I only dreamt about 16 years
    ago, being in tribal politics for 16 years. I always felt that
    there has got to be something different for my people. I
    happened to stumble across politics on a horse. I was moving my
    dad's cows one day and an elderly lady waved me down from the
    hill. I went down to her log house and she told me in Cree,
    what does this mean, this letter. It was an Indian Health
    Service letter, a letter of denial of payment for services she
    got. She was raising her grandkids. Apparently the kid got sick
    on a Friday and services were not available for the weekend, so
    she did the next best thing and took him to the hospital.
    Ultimately, the bill was denied, and that was several years
    before that it applied to her credit, which many bills end up
    in the credit bureau that my people have. I always felt that
    there has got to be something different.
        In 1988 when I first got on Council and this demonstration
    was first talked about, I asked my colleague, is our tribe
    ready? We took the initiative back to Rocky Boy and the Council
    did not want to step into that arena. Up until 1994, we had
    some young Council come on board, and we are seeing that a lot
    of things that we were going without, particularly in the arena
    of health care. I was telling my colleagues that maybe
    compacting is not for everybody, but we have to look at a
    different way of providing better health care to my people.
        We took a demonstration project midway through the year. My
    staff said we need to advance a compact which had done. The
    first year that we had our compact, it was the first time Rocky
    Boy had ever gotten a JCAHO 100 percent accreditation. From
    that point, we have not only looked at compacting outside of
    HHS, but also over in Interior. The Chippewa Cree Tribe is
    constructing a major dam with a compact with the Bureau of
    Reclamation. Also we have compacts with Minerals Management
    Service, the Bureau of Land Management.
        So with HHS, we have a road map. My staff has a road map of
    what could be doable. I have been working with this
    Administration for the last 2 or 3 years and trying to look at
    the President's management plan. How could I make that work to
    benefit the Chippewa Cree? I see that it could, but as
    mentioned by one of my colleagues earlier, we have got to get
    that flexibility from this Administration, from HHS.
        Certainly, there are issues that we may have differences
    with the State of Montana, certainly issues that we may differ
    with this Administration, but that is not to say that we should
    no be able to sit down.
        In reference to the self-governance tribes, several
    statistics kind of jump out at me. One looks at the Indian
    Health Service since 1994, over 52 percent of the IHS's budget
    is already being administered by tribes. This year, we have 30
    ways in the 2004 that are being negotiated, which brings it up
    to a total of 319 of the 580 some-odd federally recognized
    tribes that are compacting. I understand that compacting may
    not be for everybody. I look at the delivery of tribal
    governmental services in three areas, those that choose to be
    direct service, those that choose to contract, and those that
    choose to compact. I equate that to the life of a child, when
    you are infant, when you are adolescent, to your adult. Right
    now, I am prepared. I am waiting to expand the health delivery
    of Rocky Boy to include other agencies within HHS.
        I will be glad to answer any questions.
        [Prepared statement of Mr. Windy Boy appears in appendix.]
        The Chairman. Thank you. It is interesting how you were
    sort of herding cows and stumbled into public policy. That is
    kind of the way I got involved. Be careful you do not stumble
    around until you end up in the U.S. Senate. [Laughter.]
        We will go ahead with our last witness. That will be Mr.
    Peercy.

     STATEMENT OF MICKEY PEERCY, EXECUTIVE DIRECTOR OF MANAGEMENT
               AND OPERATIONS, CHOCTAW NATION OF OKLAHOMA

        Mr. Peercy. Yes, sir; good to see you again, Senator and
    staff.
        I want to say good morning and greetings from Chief Gregory
    Pyle, chief of the Choctaw Nation of Oklahoma. Also, I want to
    add our testimony in the spirit of the late Merle Boyd, second
    chief of the Sac and Fox who we lost 1 year ago, who was
    certainly a warrior in the area of self-governance.
        The Choctaw Nation is typical of many of the tribes in the
    Nation. We are strong. We are resilient. As was mentioned, I
    know there are 319 tribes looking to enter into self-
    governance.
        I have submitted testimony I will refer to mine on some,
    just on the high points. We have demonstrated that in 1975
    those legislators who initially endorsed Public Law 93-638 were
    right. We, along with many other tribes, have been successful.
    The Choctaw Nation, we are strong believers in the philosophy
    of self-determination.
        In 1985, the Choctaw Nation was the first health care
    system to contract under Public Law 93-638 for the entire
    health system. This was done in a very sudden and dramatic way.
    It was done not because in those days we thought it was a good
    thing, but the health care delivery in the Talihina, Oklahoma
    Hospital and the four satellite clinics had gotten to a point
    where the tribe said, we are bound to be able to do a better
    job than the Indian Health Service.
        I think we can prove that we have done it today. I think
    you are aware, Senator, we are in a new 144,000 square foot
    hospital in Talihina, OK. We are in the process of constructing
    a joint venture clinic in Idabel, OK; a small ambulatory grant
    clinic in Stigler, as well as a substance abuse recovery center
    in Talihina. These were done with a combination of IHS and
    tribal dollars.
        Because of self-governance, we have been able to create
    efficiencies. I think that is the key in what we are talking
    about, to locate efficiencies and redesign programs to maximize
    for the good of the people.
        We have been innovative and aggressive in our approach to
    providing services to our people. We have been diversified. One
    thing I want to point out, we provide $4 million to Choctaw
    Nation students each year across the Nation through that
    diversity, through our contracting, our manufacturing and our
    enterprises. To give you an example of manufacturing, in
    McAllister, OK, we build large industrial heaters that we send
    to Afghanistan. In McAllister, OK, we construct some of the
    tail sections for some of the bombs that have been dropped in
    Iraq. In Hugo, OK, we build the containers that ship those
    bombs to the Army. Through our Choctaw Management Services
    Enterprises, we staff all the emergency rooms in the armed
    forces overseas in all the Army hospitals. We also have the WIC
    contract, the Women, Infants and Children contract for the Army
    overseas. This diversifies.
        All of this is accomplished through self-governance. One
    thing I highlighted and pointed out in my testimony, 4 years
    ago our Federal tribal income ratio was 80 percent Federal to
    20 percent tribal. Today, it is 17 percent Federal and 83
    percent tribal. So the dependence on the Federal dollar has
    been greatly reversed.
        I made a comment. I said this is impressive. I do not care
    who you are. That is not disrespectful to this body. That is
    blue collar Southern Oklahoma humor, that looking at these
    statistics wherever you sit, that has got to be impressive. I
    wanted to point that out.
        Choctaw Nation of Oklahoma was one of the supporters of the
    demonstration project in title V. We were involved in
    rulemaking. We were also involved in the feasibility study
    under title VI. The feasibility study shows that we were
    successful.
        We also wanted to point out, and it is in the testimony, of
    the 13 programs that have been outlined by the tribes, or the
    11 by DHHS, Choctaw Nation manages six of those programs to a
    tune of over $6 million. We do that well. We do that well. We
    are very pleased with it. However, there are issues with that.
    There are flags. Congress can edict tribal self-determination.
    Agency staff can verbalize self-determination and its support,
    but the spirit is lacking, and when the spirit is lacking,
    nothing is accomplished. Due to mistrust, control issues and
    fear, it makes self-governance and moving into self-governance
    very difficult.
        Again, our programs have been successful, but just to point
    out one example. We have built a new Head Start Center, and we
    have built a new Child Development Center. They are fairly side
    by side. They are new. They are built with Government CDBG
    grants and tribal funds. We have two playgrounds in the back,
    one on each side. The issue is, they cost about $50,000 apiece
    to build the playgrounds, when one would have sufficed.
    However, due to the constraints of the programs being separate,
    the Head Start kids cannot play on the Child Development
    playground, and the Child Development kids cannot play on the
    Head Start, so you build two. To us, that is ridiculous, but it
    is the way the system works.
        With that, I just want to tell you that we support
    wholeheartedly, Chief Pyle supports wholeheartedly the movement
    of this bill. As was mentioned by my colleagues here, anything
    that we can do to support in any way, please let us know.
        We appreciate your time and we will be here for questions.
        Thank you, Mr. Chairman.
        [Prepared statement of Mr. Peercy appears in appendix.]
        The Chairman. Thank you.
        I may start with you, Mr. Peercy, since you just finished.
    We will probably be submitting some questions in writing for
    all four of you, too. That timeframe, you mentioned that the
    total financial resources of the tribe at one time was 80
    percent federal, 20 percent tribal, and now is 17 percent
    Federal and 83 percent tribal. What was the time frame between
    that change?
        Mr. Peercy. That is about a 4- to 5-year period.
        The Chairman. Just in 4- to 5-years, that fast.
        Mr. Peercy. Yes, sir.
        The Chairman. And the 144,000-foot hospital you mentioned
    that you are in the process of building, was the money you
    needed to do that, did you work with private lending
    institutions to finance that?
        Mr. Peercy. No, sir; we did our own through tribal revenues
    built that.
        The Chairman. You did not have to borrow money to do it?
        Mr. Peercy. No, sir; it is a $28-million hospital that is
    debt-free.
        The Chairman. Debt-free. Wonderful.
        Your written testimony indicates the Nation operates 6 of
    the 13 programs identified in this bill that we are dealing
    with today.
        Mr. Peercy. Yes, sir.
        The Chairman. Has the Choctaw Nation been prevented from
    operating all 13 programs because of current statutory
    restrictions or lack of compacting authority or something of
    that nature? What is the basis?
        Mr. Peercy. I would think most of those have been through
    tribal choice, such as the TANF program. That is something that
    our chief and the Council chose not to do.
        The Chairman. Did they choose not to because they were
    worried about availability of resources from the Federal
    Government to implement it, or what?
        Mr. Peercy. Yes, sir; that is an issue with most of those
    programs. And again to point out, sir, to followup on that a
    little bit, we have had these programs for the most part for
    many, many years.
        The Chairman. So you look at them and basically if the
    project is going to exceed the cost savings, it is a non-
    starter for you then.
        Mr. Peercy. Yes, sir.
        The Chairman. Yes.
        Don, let me ask you maybe the same question. You also spoke
    of the hospital that you are building in Alaska, your tribe is.
    Is that primarily being done with tribal money?
        Mr. Kashevaroff. Yes; the clinic we are building is part
    tribal money, part money from HUD, and part money from the
    Denali Commission. Then we have also applied to a couple of
    private foundations for equipment. We basically have gone to
    the bank for a line of credit, which we do not actually need
    now that all the funding has come in, but the banks were more
    than willing, after reviewing the tribe and our economic
    successes to loan us money if we need it, but we do not.
        The Chairman. The portion of the Federal money that you did
    get through IHS or HHS, you mentioned in the past they have
    been unilaterally determined standards and measures that were
    used to evaluate your programs. Did they affect the building of
    this hospital at all?
        Mr. Kashevaroff. Yes; I guess they did. We are going to
    build this clinic with no IHS funds. We had to go through other
    sources. The IHS through their standards had basically turned
    down our contract to have a clinic based on lack of population
    as they said. So using their standards, we should not be able
    to have a clinic. By using their standards also, our contract
    health service dollars just keep getting less and less buying
    power, and eventually we will have no buying power.
        So if we were to follow the IHS and the rules they live by,
    we would eventually just have no health care, basically. So by
    compacting and doing it ourselves and showing them that we can
    succeed, IHS is working with us quite well. We get along with
    HHS. We get along with IHS very well, and I think that we have
    been able to prove that we can make a better health system by
    doing it on our own, and we can rely on other folks besides IHS
    also.
        The Chairman. Thank you.
        Ron, you have testified a lot lately on self-governance
    bills. I think you were in here when I kind of blew up at the
    Administration because I thought they were dragging their feet
    on us and not really seriously interested in helping us. But
    thank you for attending and thank you for your testimony last
    time, and this time, too.
        You were on the Title IV study team which included the
    Department of Health and Human Services representatives. Is
    that correct?
        Mr. Allen. Yes.
        The Chairman. Can you describe what is the level of
    participation by the Department of Health and Human Services?
        Mr. Allen. Actually, it was fairly good. We received quite
    a bit of participation by the majority of the agencies that we
    were entertaining to put into this demonstration phase. They
    raised a number of issues, and of course the States raised some
    of their issues, because a lot of these funds will go through
    the state before it gets to the tribe. So we have to kind of
    filter it, or they filter it, before it gets to the tribe and
    our communities. We worked with them in terms of why we needed
    to have direct access, and then why the Administration should
    be supportive of it.
        So they participated and identified what their concerns
    were. We think we alleviated the majority of them. We do know
    that they have still some anxieties over the notion of how do
    you negotiate. We had to persuade them that, look, we take this
    one step at a time to learn how we are going to negotiate, what
    is our fair share and how should it be administered, and why
    should you adjust your budget to accommodate this new way of
    doing business with Indian tribes.
        So I think that we are making some good progress. The
    encouraging part was the Secretary's office was fairly active
    and very tuned into the process of the study, so they were very
    supportive of the study as well. We became a little concerned,
    and it took a little bit of a side-step or diversion if you
    will, because of the contractor who conducted the study, who we
    had to educate. Consistently, when we would go through these
    processes, you would bring in a contractor and they would know
    nothing about tribal governments and the empowerment of tribal
    governments. So we had to spend a lot of energy.
        The Chairman. Everytime new people come in, you have to
    reinvent the wheel, every time new people come on board.
        Mr. Allen. Oh, consistently. It has been a problem that we
    have been struggling with for 15 years. But at least we made
    some good headway and we feel the report is fair and objective
    and supportive of what we are trying to achieve.
        The Chairman. You identified streamlining programs as one
    of the key objectives of this bill, S. 1696. That is what I
    believe is the real goal, too. The duplication of grant
    applications is an example, or budgets reporting. It is all a
    big huge waste of resources. In my opinion, if it could be
    better directed, that money that we use in doing that could be
    directed to the programs.
        Do you have any ballpark idea about maybe even including
    costs and man hours that a tribe such as yours could expect to
    save by not having to submit all those multiple applications,
    budgets reports and so on, and could administer programs
    yourself?
        Mr. Allen. No, Senator; I do not off the top of my head. I
    can tell you just instinctively and through my experience, it
    is a phenomenal amount of energy. When you have to put together
    these grant or contracting applications, you go through the
    program directors and you go through the planners and grant
    writers themselves, and you make sure that it is working. You
    talk about how it is going to complement other programs. And
    then you have to go through the whole process of applying and
    interacting with the Department and the agency process, the
    whole process of review, and the interaction going back and
    forth.
        So the amount of staff resources and energy that we have to
    put in is phenomenal. If we could convert those resources and
    energies into the programs, we would be much better off. But
    obviously, we need those resources. Those resources are
    important to our programs, whether it is the children or the
    elders or community service programs, domestic violence
    programs.
        So yes, without having any specific data, we can tell you
    that unequivocally that the amount of resources we are saving,
    the Federal Government and the tribes, is going to be
    phenomenal in terms of the end results of how much more we can
    divert of those resources to more constructive at the
    grassroots-type of activities.
        The Chairman. The reason I asked you is because I have
    heard for years and years, over and over from many people that
    testify, that if we could direct the money directly to the
    tribes, it would not be eaten up by administrative costs,
    overhead, all the other stuff as it sort of dribbles down. But
    I have never seen anything that is really authoritative to say
    how much more in percent a tribe would find usable if we gave
    direct funding through compacting or contracting, as opposed to
    the agencies doing all the administration. I, like you, think
    it could be considerable.
        I have seen things saying 80 percent of all the money we
    appropriate for the BIA, for instance, does not actually get to
    the tribal members. It is eaten up somewhere in the
    bureaucracy. I hear that and read that, but they are usually
    accusations or guesstimates or so on, but I have never seen
    anything definitive about how much better of we would be by
    sending the money directly to tribes.
        Mr. Allen. Mr. Chairman, it would be easy for us to
    identify all the participants in the tribe who have to develop
    these grants and contract applications, and identify the actual
    processes and the interaction with the Federal agencies to show
    you the kind of energy that we have to spend, the kind of man
    hours we have to actually spend soliciting each of these
    grants. Some of these grants are little tiny grants. They are
    $2,000 grants or it may be $200,000 or $2 million grants. The
    irony of it is that the $2,000 grant can take up as much energy
    as a $2-million grant. You can't not go after them because we
    need every little dollar we can get into our community.
        The Chairman. Yes; I would like you to do something for the
    committee, and that is just pick out any one of them that deals
    with your tribe, that goes to your tribe, and see if you can
    put together a comparative study for me, for the committee,
    about what percent of any x amount of money that you think
    would be better used going directly to the tribes, as opposed
    to how it is being used up in the process if we could do more
    direct funding. Any one of the programs you now deal with with
    the Federal Government, if you could do that so I could use it
    as an example for the committee and the members, I would
    appreciate it.
        Mr. Allen. We would be delighted to do that, Mr. Chairman.
        The Chairman. A small one of $2,000 or a big one, whichever
    one, but give me some information so I have something more
    definitive.
        Mr. Allen. Okay.
        The Chairman. Thank you.
        Chairman Windy Boy, you have been long a champion of self-
    governance and the hard work that you have done is paying off
    for the improvements in health certainly for your tribal
    members on your reservation. I thank you for being here.
        This bill requires annual reporting which must verify that
    tribes meet the statutory purposes of the bill. What is your
    view on that oversight? Is it too much? How would you compare
    that with other current compact oversight?
        Mr. Windy Boy. In order to provide in this case better
    health care delivery, we have jumped through a lot of hoops and
    reports. We have done that. Fiscal analysis, we have done that.
        So if there are reports, whether it be additional or
    downsized reporting mechanism, we would do that.
        The Chairman. The bottomline is we cannot get it passed
    unless there is some oversight. That is the way it works around
    here, or we cannot get it signed into law, I mean.
        Mr. Windy Boy. Yes; I want to mention an oversight on my
    part. In 1975, health care delivery was available to my people
    by the Indian Health Service. My late father, chairman for 20
    years, took it upon himself to finance their own health
    facility, because at that time the enrollment was 3,200 people.
    The facility that the Indian Health Service was manning in
    Rocky Boy certainly was insufficient by way of space and
    personnel.
        In 1975, they went from east coast to west coast attempting
    to get a loan to build a facility. It was not until he and
    several other Council members went to a small town in Malta, MT
    that financed the facility for them. They have since paid it
    off, which gets us into another era. Our last enrollment
    meeting several months ago showed that we were close to 6,300
    people. The facility, and I thank my dad and them for what they
    have done for my people, but in this day and age we have
    increased enrollment. That is probably pertinent in Indian
    Country all over.
        The Chairman. What percent of your enrollment lives on the
    reservation?
        Mr. Windy Boy. Of the 6,200 people, we have close to 4,000
    that live on it, and we are seeing a lot more move back.
        Incidentally, before I came here we had a groundbreaking
    for a facility that the tribe is going to build. We have
    collaborated with both the Indian Health Service, USDA, HUD and
    the BIA to create this from a 3,400-square-foot facility to a
    10,000-square-foot facility, with an emphasis on wellness
    center within.
        The Chairman. Good. This new center you are groundbreaking
    for, I note with interest some of the new Indian clinics and
    hospitals that are being built by tribes where they have a lot
    more input on determining what they want emphasized in there.
    They are not just hospitals. They are really, to use your
    words, wellness centers.
        I live at Southern Ute in Colorado and they just built one.
    Included with the clinic, which is right next door, they have a
    nutrition program, as an example, where they teach cooking and
    how to improve diets to try to reduce diabetes. They have a
    gymnasium. They have exercise class. They have a lot of things
    that are related to health. I think that is really the future
    direction that Indian, if you want to use that word
    ``hospital,'' that they take. They look at it in a holistic
    sense, rather than just trying to patch things up after they
    happen.
        Mr. Windy Boy. Actually, I was proud of my people at home.
    They persistently met with the two school boards in Rocky Boy
    and Box Elder and basically turned the feeding program of the
    Rocky Boy School for the students. Students have more
    nutritious food, and actually the wellness center we are
    creating does have a swimming pool and gymnasium, with that in
    mind. They did tell me that we will do something about my
    [native word].
        The Chairman. Yes; you know, I like fried bread as well as
    the next guy, but it is probably the worst thing in the world
    to eat for your arteries. [Laughter.]
        You talked some about duplicating services. The duplication
    of services provided by the tribes and the States is almost
    always an issue. Your testimony indicates that your health
    board contracts with the state for some programs. What steps
    have your tribe taken to avoid duplicating services?
        Mr. Windy Boy. Actually, the services that we do get from
    the State of Montana, as mentioned earlier, TANF, LIHEAP, in
    fact we have about 13 programs that we do contract through the
    State. What this bill is going to allow us to do is actually
    negotiate with the DHHS, rather than having to go through the
    State of Montana. Knowing the State of Montana and tribes,
    particularly my tribe, the relationship is not really that
    well.
        In reference to the earlier statements about ingesting
    tribal revenue, my tribe, maybe it is an anomaly, but we do not
    have the natural resources. We certainly do not have the gaming
    operations to ingest. So the money that we do have is basically
    money coming from our timber sales, grazing fees, because those
    services are needed. Those are the only revenues that we have
    to ingest.
        The Chairman. Do you have a 2-year Indian community college
    there?
        Mr. Windy Boy. Stone Child College, yes.
        The Chairman. What is it?
        Mr. Windy Boy. Stone Child College.
        The Chairman. Oh, yes, Stone Child. Do they offer any
    classes dealing with health, nutrition, something along that
    line?
        Mr. Windy Boy. Yes; they do. I chair the National Tribal
    Leaders Diabetes Committee, and through the efforts of the
    National Institutes of Health, through Dr. Larry Agodoa and Dr.
    Sandy Garfield, we have collaborated with them and created six
    demonstration sites across Indian country. I am not very good
    at acronyms, but I know that the project that we are working
    with in six colleges is the DETS program, and that is teaching
    the students about diabetes, for them to later on become
    students. It is a 10-year project.
        The Chairman. Very good.
        I have no further questions of this panel, but I appreciate
    your being here. Senator Inouye may have some, which he will
    probably submit in writing, but I do thank you for being here.
    Your complete written testimony will be included in the record.
    We will keep the record open for 14 days for any additional
    comments by our panel or anyone in our audience.
        Thank you for being here.
        The committee is adjourned.
        [Whereupon, at 11:07 a.m., the committee was adjourned, to
    reconvene at the call of the Chair.]

    =======================================================================

                                A P P E N D I X

                                  ----------

                  Additional Material Submitted for the Record

    =======================================================================

      Prepared Statement of Don Kashevaroff, President, Seldovia Village
           Tribe and Chairman, Alaska Native Tribal Health Consortium

        Good morning Mr. Chairman and committee members. I am pleased to
    testify today in strong support of S. 1696, the Department of Health
    and Human Services Tribal Self-Governance Amendments Act. My name is
    Don Kashevaroff and I am the president of Seldovia Village Tribe and
    the chairman of the Alaska Native Tribal Health Consortium.
        The bill you sponsored will create a demonstration project for non-
    Indian Health Service programs in the Department of Health and Human
    Services. More importantly, the bill will further the central purpose
    of the Indian Self-Determination Act--to allow tribes to exercise their
    own governmental powers and sovereignty by managing Federal programs
    for their own benefit. And, as you know, Self-Governance has resulted
    in a reduction in the Federal bureaucracy and an improvement in the
    quality of services delivered to our members. Enactment of this bill
    into law will add yet another important chapter in tribal self-
    sufficiency.
        I would like to describe for you how well Self-Governance is
    already working in Alaska and why it makes perfect sense to expand the
    scope of Self-Governance to other programs within the Department of
    Health and Human Services.
        First, in Alaska, the permanent Self-Governance program under title
    V of the Indian Self-Determination has been an unqualified success.
    Tribes and tribal organizations, such as the ones that I represent
    here, have been able to run the system with more efficiency,
    effectiveness and creativity than the Indian Health Service ever could.
        For many years Seldovia has been a co-signer of the Alaska Tribal
    Health Compact [``ATHC'']. Starting in 1994, a number of tribes and
    tribal organizations in Alaska negotiated and signed the ATHC and
    Annual Funding Agreements authorizing them to operate health programs.
    Today the ATHC has 18 co-signers under which a total of 213 federally
    recognized tribes in Alaska receive the great majority of the health
    care services provided to Alaska Native and American Indian
    beneficiaries residing in Alaska. Over 95 percent of the IHS programs
    in Alaska, including the Alaska Native Medical Center in Anchorage, are
    currently operated under tribal administration in accordance with the
    ATHC.
        Under Seldovia's Funding Agreement negotiated under the ATHC, the
    Seldovia Tribe provides a full range of health care to our people,
    including clinical services, pharmaceutical services, family health
    care, health education, diabetes clinics, and domestic violence
    intervention services. Seldovia is very interested in broadening the
    scope of these programs to included non-IHS programs from within other
    agencies located in DHHS.
        The bill would create a 5-year program to extend Tribal Self-
    Governance to programs within the Department of Health and Human
    Services [HHS] that are outside the Indian Health Service. The project
    would include up to 50 current self-governance tribes that would be
    eligible to negotiate new Self-Governance compacts and funding
    agreements for the additional HHS programs. There are 13 programs
    included in the bill. These include key programs such as Tribal TANIT
    to Low Income Home Energy Assistance to Head Start and Family Violence
    Prevention Grants. In addition, the bill would allow the Secretary to
    choose an additional 6 programs to add to the existing 13. The bill
    makes it clear that the Secretary is under no obligation to do so, but
    can if he or she believes it would benefit the Department and the
    Tribes.
        The new compacts and funding agreements set forth in the bill are
    substantially the same as those under the current title V program. The
    bill, in other words, is not a radical or large departure from what the
    Department and Indian country are used to. In fact, the bill would
    allow a tribe to simply expand its current compact to include any new
    programs, rather than draw up a new compact.
        The bill continues the flexibility that is the hallmark of the
    Self-Governance program. The fact is that Indian tribes that are given
    the ability to tailor or modify Federal programs so that they best meet
    tribal and cultural needs can run better programs. The ability to
    redesign, consolidate and reallocate programs and funds, as tribes can
    already do under title I and title V, is a critical element of this
    bill. Further flexibility is provided through the waiver provision in
    the bill in section 606. The waiver provision would allow a tribe to
    ask the Secretary to waive certain Federal program requirements. The
    Secretary can do so, but only if he or she determines that the waiver
    would further the purposes of the act. The bill recognizes that tribes
    will comply with final regulations for the each of the 13 programs. At
    the same time, flexibility is ensured by also recognizing that tribes
    will not be bound, unless agreed to, by other agency policies,
    circulars, manuals or guidances.
        The bill also recognizes that funding formulas should be the result
    of negotiation between the Federal Government and the Indian tribes. We
    express strong support for the funding provision in this bill which
    would provide for a lump sum annual payment made within 10 days after
    the apportionment of funds to HHS from OMB.
        Another key benefit to tribes in this bill is the inclusion of
    negotiated baseline measures. Prior to Self-Governance, the IHS
    unilaterally determined what standards and measures would be used to
    annually evaluate Seldovia's programs. Often those standards and
    measures were burdensome and inapplicable to what we were doing. Under
    the ATHC, the IHS and Seldovia have jointly developed relevant and less
    burdensome baseline measurements, which are used for the annual
    evaluation of our programs.
        Finally, I want to point out that the bill brings another key
    element of the Self-Governance program: Streamlining. Many tribes and
    tribal organizations in Alaska already receive substantial funding for
    the programs contemplated under the bill. For instance, tribes in
    Alaska already operate their own Head Start, Child Care Development
    Block Grant, Family Violence Prevention, and Child Welfare Services
    Program. Thus, expanding the scope of Self-Governance to include these
    programs as the bill would do is simply a natural extension of what we
    are already doing. In fact, bringing the efficiencies and tribal
    flexibility of Self-Governance to these programs will only make them
    better for us in Alaska.
        In order to participate in non-IHS programs within the DHHS, tribes
    currently develop and submit multiple grant applications for related
    programs, which requires hundreds of pages of narratives, separate
    budgets and recordkeeping, and the submission of numerous time-
    consuming reports. Title VI allows tribes to combine funds from various
    sources and provides flexibility for tribes to use the funds to design
    and provide services that are appropriate for the tribes' communities.
    The title VI demonstration program thus promotes efficiency, which
    translates to better health care for native people.
        On the other hand, all Indian tribes who are part of the Self-
    Governance program will tell you that the one missing element in the
    bill is the right to full contract support costs. The bill provides
    that contract support costs will be provided for each of the eligible
    programs. Nevertheless, our experience under Self-Governance has shown
    that tribes never receive the full amount of contract support costs
    from the IHS. This has to change if tribes are to ever fully realize
    the benefits of Self-Governance. We cannot afford to pay for the unmet
    costs out of our own pockets. For many of us, that means we have to
    take funding from other important programs. In a larger context, lack
    of full funding will serve to discourage other tribes from entering
    into the demonstration project. In simple terms, we want this program
    to succeed. We know that the committee wants this program to succeed.
    Therefore, we urge you to make the Department pay its full share of
    contract support costs.
        Section 607 of the bill requires the Secretary to annually report
    back to Congress on the status of the demonstration project. We fully
    expect that the reports will demonstrate ability of tribes to
    carefully, and expertly, manage the additional HHS programs. In fact,
    we expect the reports to show that Native tribes will manage the
    programs better than the Department has. We urge this committee to
    carefully examine those reports and then work with us on making the
    demonstration project within HHS permanent. At the same time, we will
    work the Department on identifying additional HHS programs that should
    be eligible for inclusion in the Self-Governance program.
        Tribal governments, under Self-Governance have become increasingly
    stronger governments. Passage of this bill will further this
    committee's and Mr. Chairman, your efforts to strengthen and promote
    tribal governance. Tribes have continuously demonstrated that when
    given the chance to manage Federal programs, they have succeeded at
    every turn. Self-Governance has given tribes more management capacity,
    better information networks, and, by bringing in more and more
    programs, a better capacity to operate as a true sovereign nations. It
    is fitting that we are here 70 years after the passage of the Indian
    Reorganization Act. The IRA was a well-intentioned, but simplistic and
    rigid attempt to further tribal self-governance. What we now know, is
    that the only laws that work to truly promote tribal self-governance
    are those place real management responsibility in the tribes
    themselves, and with arm the tribes with flexibility to tailor Federal
    programs to meet their own needs, and provide tribes with the funding
    to make those programs work.
        The Seldovia Village Tribe and the Alaska Native Tribal Health
    Consortium strongly support S. 1696 because it accomplishes just that.

    [GRAPHIC] [TIFF OMITTED] T3687.036

    [GRAPHIC] [TIFF OMITTED] T3687.037

    [GRAPHIC] [TIFF OMITTED] T3687.038

    [GRAPHIC] [TIFF OMITTED] T3687.039

    [GRAPHIC] [TIFF OMITTED] T3687.040

    [GRAPHIC] [TIFF OMITTED] T3687.041

    [GRAPHIC] [TIFF OMITTED] T3687.042

    [GRAPHIC] [TIFF OMITTED] T3687.043

    [GRAPHIC] [TIFF OMITTED] T3687.044

    [GRAPHIC] [TIFF OMITTED] T3687.045

    [GRAPHIC] [TIFF OMITTED] T3687.046

    [GRAPHIC] [TIFF OMITTED] T3687.047

    [GRAPHIC] [TIFF OMITTED] T3687.048

    [GRAPHIC] [TIFF OMITTED] T3687.049

    [GRAPHIC] [TIFF OMITTED] T3687.050

    [GRAPHIC] [TIFF OMITTED] T3687.051

    [GRAPHIC] [TIFF OMITTED] T3687.052

    [GRAPHIC] [TIFF OMITTED] T3687.053

    [GRAPHIC] [TIFF OMITTED] T3687.054

    [GRAPHIC] [TIFF OMITTED] T3687.055

    [GRAPHIC] [TIFF OMITTED] T3687.056