[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                       H.R. 3994, DEPARTMENT OF

                       THE INTERIOR TRIBAL SELF-


                        GOVERNANCE ACT OF 2007

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


                          LEGISLATIVE HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                       Thursday, November 8, 2007

                               __________

                           Serial No. 110-53

                               __________

       Printed for the use of the Committee on Natural Resources



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                     COMMITTEE ON NATURAL RESOURCES

               NICK J. RAHALL II, West Virginia, Chairman
              DON YOUNG, Alaska, Ranking Republican Member

Dale E. Kildee, Michigan             Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas              Chris Cannon, Utah
Frank Pallone, Jr., New Jersey       Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin         Jeff Flake, Arizona
    Islands                          Stevan Pearce, New Mexico
Grace F. Napolitano, California      Henry E. Brown, Jr., South 
Rush D. Holt, New Jersey                 Carolina
Raul M. Grijalva, Arizona            Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam          Cathy McMorris Rodgers, Washington
Jim Costa, California                Bobby Jindal, Louisiana
Dan Boren, Oklahoma                  Louie Gohmert, Texas
John P. Sarbanes, Maryland           Tom Cole, Oklahoma
George Miller, California            Rob Bishop, Utah
Edward J. Markey, Massachusetts      Bill Shuster, Pennsylvania
Peter A. DeFazio, Oregon             Dean Heller, Nevada
Maurice D. Hinchey, New York         Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island     Doug Lamborn, Colorado
Ron Kind, Wisconsin                  Mary Fallin, Oklahoma
Lois Capps, California               Vacancy
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South 
    Dakota
Heath Shuler, North Carolina

                     James H. Zoia, Chief of Staff
                   Jeffrey P. Petrich, Chief Counsel
                 Lloyd Jones, Republican Staff Director
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Thursday, November 8, 2007.......................     1

Statement of Members:
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Allen, Hon. W. Ron, Tribal Chairman, Jamestown S'Klallam 
      Tribe, Sequim, Washington..................................    15
        Prepared statement of....................................    17
    Benjamin, Hon. Melanie, Chief Executive, Mille Lacs Band of 
      Ojibwe, Onamia, Minnesota..................................    20
        Prepared statement of....................................    22
    Cason, James, Associate Deputy Secretary, U.S. Department of 
      the Interior, Washington, D.C..............................     2
        Prepared statement of....................................     4
    Chavarria, Hon. J. Michael, Governor, Pueblo of Santa Clara, 
      Espanola, New Mexico.......................................    28
        Prepared statement of....................................    30
    Keel, Hon. Jefferson, Lieutenant Governor, The Chickasaw 
      Nation, 
      Ada, Oklahoma..............................................    12
        Prepared statement of....................................    14
    Stevens, Ben, Executive Director, Council of Athabascan 
      Tribal Governments, Fort Yukon, Alaska.....................    33
        Prepared statement of....................................    35

Additional materials supplied:
    Marshall, Hon. Clifford Lyle, Chairman, Hoopa Valley Tribe, 
      Statement submitted for the record.........................    45
    Smith, Hon. Chad, Principal Chief, Cherokee Nation, Letter 
      submitted for the record...................................    49


      LEGISLATIVE HEARING ON H.R. 3994, TO AMEND THE INDIAN SELF-
  DETERMINATION AND EDUCATION ASSISTANCE ACT TO PROVIDE FURTHER SELF-
 GOVERNANCE BY INDIAN TRIBES, AND FOR OTHER PURPOSES. ``DEPARTMENT OF 
           THE INTERIOR TRIBAL SELF-GOVERNANCE ACT OF 2007''

                              ----------                              


                       Thursday, November 8, 2007

                     U.S. House of Representatives

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 10:15 a.m. in Room 
1324, Longworth House Office Building, Hon. Nick J. Rahall, 
[Chairman of the Committee] presiding.
    Present: Representatives Rahall, Kildee, Sali, Inslee, Baca 
and Fallin.

STATEMENT OF THE HONORABLE NICK J. RAHALL, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF WEST VIRGINIA

    Mr. Rahall. The Committee will come to order. This meeting 
on H.R. 3994 is a legislative hearing to amend the Indian Self-
Determination and Education Assistance Act to provide further 
self-governance by Indian tribes, and for other purposes. 
Throughout the years, tribal self-governance has been held as 
one of the most successful Federal programs for Indian tribes. 
Under self-governance, Indian tribes assume the duties of the 
Federal government for certain programs at the Department of 
the Interior.
    Self-governance affords tribal governments the right to 
operate programs to best serve the needs of their members while 
at the same time preserving the Federal government's treaty and 
trust responsibility toward Native Americans. In 2000, Congress 
made changes to Title V of the Indian Self-Determination and 
Education Assistance Act which controls the program at the 
Indian Health Service.
    Indian tribes have reported those changes have immensely 
improved the administration of self-governance within the 
Indian Health Service. The legislation before us today would 
extend similar changes to Title IV of the Indian Self-
Determination Act which controls the program at the Department 
of the Interior.
    It would allow Indian tribes to assume the administration 
of programs at the Department of the Interior using rules and 
procedures similar to those used at the Indian Health Service. 
I look forward to hearing today's testimony and learning how 
the bill can be improved.
    [The prepared statement of Mr. Rahall follows:]

       Statement of The Honorable Nick J. Rahall, II, Chairman, 
                     Committee on Natural Resources

    The Committee will come to order. Today's hearing is on H.R. 3994, 
the ``Department of the Interior Tribal Self-Governance Act of 2007.'' 
I commend my colleague, Mr. Boren, for introducing this measure.
    Throughout the years, tribal self-governance has been hailed as one 
of the most successful federal programs for Indian tribes. Under self-
governance, Indian tribes assume the duties of the Federal government 
for certain programs at the Department of the Interior. Self-governance 
affords tribal governments the right to operate programs to best serve 
the needs of their members, while at the same time, preserving the 
Federal government's treaty and trust responsibility towards Native 
Americans.
    In 2000, Congress made changes to Title V of the Indian Self-
Determination and Education Assistance Act which controls the program 
at the Indian Health Service. Indian tribes have reported that those 
changes have immensely improved the administration of self-governance 
within the Indian Health Service.
    The legislation before us today would extend similar changes to 
Title IV of the Indian Self-Determination and Education Assistance Act, 
which controls the program at the Department of the Interior. It will 
allow Indian tribes to assume the administration of programs at the 
Department of the Interior using rules and procedures similar to those 
used at the Indian Health Service.
    I look forward to hearing testimony today to learn how the bill can 
be improved.
                                 ______
                                 
    Mr. Rahall.Do any other members wish to make an opening 
statement?
    [No response.]
    Mr. Rahall. OK. If not, we will proceed our hearing. Our 
first witness is Mr. James Cason, the Assistant Deputy 
Secretary, the Department of the Interior.
    Mr. Secretary, we welcome you once again to our committee, 
and you may proceed as you desire.

  STATEMENT OF JAMES CASON, ASSOCIATE DEPUTY SECRETARY, U.S. 
                   DEPARTMENT OF THE INTERIOR

    Mr. Cason. Thank you, Mr. Chairman. I appreciate that.
    Mr. Rahall. We do have your prepared testimony, by the way, 
as for all witnesses, which will be made part of the record as 
if it actually were read, and witnesses may proceed as they 
desire.
    Mr. Cason. Great. Thank you so much, Mr. Chairman. Good 
morning, Mr. Chairman. I am pleased to be here to provide the 
administration's position on H.R. 3994, the proposed Department 
of the Interior Tribal Self-Governance Act of 2007. Self-
governance tribes have been good managers of the programs they 
have undertaken.
    More often than not tribes add their own resources to the 
programs or are able to fashion programs to meet the particular 
needs of their beneficiaries. They are also well-suited to 
address changing needs. Tribes have said that our current 
compacts with them reflect true government-to-government 
relationships that indicate they are not viewed by the Federal 
government as just another Federal contractor, and they are 
not.
    The premise behind much of H.R. 3994, however, is that it 
is prudent to extend the provisions of Title V of the Indian 
Self-Determination and Education Assistance Act which governs 
the programs of the Indian Health Service to the programs of 
the Department of Interior.
    There are functions and responsibilities of Interior that 
do not lend themselves to compacting or funding agreements 
under provisions like those in Title V. The legislation before 
the Committee today goes well beyond the principles of self-
determination and self-governance.
    It poses problems with regard to appropriate management of 
Federal funding and programs, could ultimately end up costing 
taxpayers more to fund programs, and potentially increase as a 
liability on the part of the Federal government. The Department 
expressed concerns in 2004 when a similar bill was introduced 
and considered by the 108th Congress, and as a result the 
Department opposes enactment of this bill which is fairly 
similar.
    Our first concern is with the provisions of H.R. 3994 that 
affect non-BIA bureaus of Interior. H.R. 3994 amends Title IV 
to provide in new Section 405(b)(2) that a funding agreement 
shall, as determined by the Indian tribe, authorize the Indian 
tribe to plan, conduct, consolidate, administer and receive 
full tribal share funding for all programs carried out by the 
Secretary outside the Bureau of Indian Affairs better for the 
benefit of Indians because of their status as Indians or that 
are programs with respect to which Indian tribes are primary or 
significant beneficiaries.
    Under this provision the non-BIA bureaus of Interior have 
no negotiating rights with regard to what is authorized by 
these agreements. Non-BIA bureau programs that have both Indian 
and non-Indian significant beneficiaries would be the subjects 
of funding agreements at the tribe's discretion. The bill 
provides no authority for the Secretary to require terms to 
ensure protection of non-Indian interest.
    This is particularly troubling combined with the bill's 
other requirements that the Secretary may not revise subsequent 
funding agreements without tribal consent, funding agreements 
at the discretion of the tribe may be for more than one year, 
tribes may redesign or consolidate programs or reallocate funds 
for programs in any manner that the Indian tribe deems to be in 
the best interest of the Indian community being served as long 
as it does not have the effect of denying services to 
population groups eligible to be served, if a tribe compacts to 
carry out a service and then finds the funding is insufficient, 
the tribe can suspend services until additional funds are 
provided and unless the Secretary can show irreparable harm, a 
program may only be reassumed if there is a hearing on the 
record that finds clear and convincing evidence that there is 
imminent jeopardy to physical trust asset natural resource or 
public health and safety or if there is gross mismanagement on 
the part of the tribe.
    As I stated in the beginning of the testimony, P.L. 93-638, 
the underlying bill as amended, has in a large part been a 
success story. Our interest is in making sure that it stays 
that way. A prudent preliminary analysis of this legislation 
leads us to raise the aforementioned areas of concern.
    We are opposed to the bill's enactment also given the 
relatively short timeframe in which we have had to analyze H.R. 
3994. We are continuing to review the impacts of the bill on 
both BIA and non-BIA programs in the Department.
    Mr. Chairman, that concludes my opening statement, and I 
would be happy to answer any questions you may have.
    [The prepared statement of Mr. Cason follows:]

         Statement of James Cason, Associate Deputy Secretary, 
                    U.S. Department of the Interior

    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 H.R. 3994, the proposed ``Department of 
the Interior Tribal Self-Governance Act of 2007.''
    Self-governance Tribes have been good managers of the programs they 
have undertaken. More often than not, Tribes add their own resources to 
the programs and are able to fashion programs to meet the particular 
needs of their beneficiaries. They are also well suited to address 
changing needs. Tribes have said that our current compacts with them 
reflect a true government-to-government relationship that indicates 
they are not viewed by the Federal government as just another federal 
contractor.
    The premise behind much of H.R. 3994, however, is that it is 
prudent to extend the provisions of title V of the Indian Self-
Determination and Education Assistance Act, which governs the programs 
of the Indian Health Service, to the programs of the Department of the 
Interior. There are functions and responsibilities of Interior that do 
not lend themselves to compacting or funding agreements under 
provisions like those in title V.
    The legislation before the Committee today goes well beyond the 
principles of self-determination and self-governance. It poses problems 
with regard to appropriate management of federal funding and programs, 
could ultimately end up costing taxpayers more to fund programs, and 
potentially increases liability on the part of the Federal government. 
The Department expressed concerns in 2004 when a similar bill was 
introduced and considered by the 108th Congress. As a result, the 
Department opposes the enactment of this bill.
    The policy of Indian self-determination is one that has endured for 
almost forty years. In a message to Congress on March 6, 1968, 
President Lyndon Johnson said:
        ``I propose a new goal for our Indian programs: A goal that 
        ends the old debate about 'termination' of Indian programs and 
        stresses self-determination... The greatest hope for Indian 
        progress lies in the emergence of Indian leadership and 
        initiative in solving Indian problems. Indians must have a 
        voice in making the plans and decisions in programs which are 
        important to their daily life...
    In July 1970, President Nixon gave his famous Special message to 
Congress which stated:
        ``It is long past time that the Indian policies of the Federal 
        government began to recognize and build upon the capacities and 
        insights of the Indian people. ... The time has come to break 
        decisively with the past and to create the conditions for a new 
        era in which the Indian future is determined by Indian acts and 
        Indian decisions...

        ``Federal termination errs in one direction, Federal 
        paternalism errs in the other. Only by clearly rejecting both 
        of these extremes can we achieve a policy which truly serves 
        the best interests of the Indian people. Self-determination 
        among the Indian people can and must be encouraged without the 
        threat of eventual termination. In my view, in fact, that is 
        the only way that self-determination can effectively be 
        fostered...
And more recently, on October 30, 2006, President Bush declared:
        ``My Administration will continue to work on a government-to-
        government basis with tribal governments, honor the principles 
        of tribal sovereignty and the right to self-determination, and 
        help ensure America remains a land of promise for American 
        Indians, Alaska Natives, and all our citizens.''
Background
    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, in section 403(b) authorize 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 FY 2007, there are 94 
agreements that include 234 federally recognized tribes and 
approximately $380 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 Department funding agreements 
allow federally recognized tribes to provide a wide range of programs 
and services to their members such as law enforcement, education, 
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 for their members 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 Chickasaw Nation 
accomplishments in 2006 included providing education services to 7,209 
students. 945 students participated in remedial education and tutoring 
and 82% of the students receiving tutoring gained one grade level or 
more. Scholarships were provided to 181 undergraduate students and 43 
graduate students. The Tribe's tribal district court heard 1,118 cases. 
It collected almost $50,000 in court fees and over $32,000 for 
restitution and child support. In January 2006, the Tribe's supreme 
court and district court were audited by a team from the BIA central 
office and received excellent ratings. The Tribe also provided career 
counseling, skills assessment, aptitude testing, and other employment 
readying services to 1,320 clients. The Tribe coordinated a job fair 
that attracted 53 vendors and over 500 job seekers. The Tribe's police 
department implemented a new computer system which has aided in 
multiple dispatching methods and improved data collection, 
investigation, and crime analysis and reporting. This example is just 
one of many where Tribes have been successful in directly administering 
federal programs.
    Section 403(b)(2) of title IV authorizes other bureaus within the 
Department of the Interior to enter into funding agreements with Tribes 
subject to such terms as may be negotiated between the parties. The 
Council of Athabascan Tribal Governments (CATG) has successfully 
implemented annual funding agreements (AFAs) since 2004 to perform 
activities in the Yukon Flats National Wildlife Refuge in Interior 
Alaska. The CATG is a consortium representing the Tribal governments of 
Arctic Village, Beaver, Birch Creek, Canyon Village, Chalkyitsik, 
Circle, Gwichyaa Zhee Gwich'in Tribal Government of Fort Yukon, 
Rampart, Stevens Village, and Venetie. Members of these Tribes live 
near or within the Yukon Flats National Wildlife Refuge, the third 
largest of the more than 540 conservation units in the National 
Wildlife Refuge System. The Refuge was established in 1980, and 
includes more than 8.5 million acres of wetland and boreal forest 
habitat along 300 miles of the Yukon River, north of Fairbanks, Alaska. 
It is internationally noted for its abundance of migratory birds.
    The activities subject to the AFAs have included 1) locating and 
marking public easements across private lands within the Refuge 
boundary; 2) assisting with environmental education and outreach in 
local villages; 3) monitoring wildlife harvest; 4) surveying moose 
populations (in cooperation with the Alaska Department of Fish and 
Game); and 5) maintaining Federal property in and around Fort Yukon. 
Public use (including sport and subsistence hunting, fishing, and 
trapping) is not affected by these agreements. Management authority 
remains with the Service as required by the National Wildlife Refuge 
System Administration Act.
    The Bureau of Land Management also has an annual funding agreement 
with the CATG. Under the agreement, CATG performs preseason refresher 
training and testing services for Emergency Firefighters within 
Alaska's Upper Yukon Zone.
    In FY 2007, Redwood National and State Parks had three agreements 
under the Indian Self-Governance Act with the Yurok Tribe for watershed 
restoration in the South Fork Basin of Lost Man Creek (a boundary area 
between the Park and the Yurok reservation); the conduct of 
archeological site condition assessments; and natural resource 
maintenance. Since 2002, the Lower Elwha Klallam Tribe has been 
assisting the National Park Service as a Self-Governance tribe in the 
planning, design, and implementation of mitigation measures for the 
Elwha River Restoration Project. At Grand Portage National Monument, 
there have been annual funding agreements for the past nine years. The 
agreement, re-negotiated, amended and agreed upon by the National Park 
Service and the Grand Portage Band of Minnesota Chippewa, touches most 
park operations. The Band and the Park dedicated a new Grand Portage 
Heritage Center in August 2007. Over nine years, $3.3 million has been 
transferred to the Band and 34 special projects have been completed in 
addition to routine maintenance.
    The Bureau of Reclamation has also been successful under the 
current law. In FY 2007, Reclamation had seven annual agreements with 
six Tribes, totaling more than $18.6 million.
Department of the Interior Non-BIA Program Concerns with H.R. 3994
    Our first concern is with the provisions of H.R. 3994 that affect 
non-BIA bureaus of Interior. H.R. 3994 amends title IV to provide in 
the new section 405(b)(2) that ``[A] funding agreement shall, as 
determined by the Indian Tribe, authorize the Indian Tribe to plan, 
conduct, consolidate, administer, and receive full tribal share funding 
for all programs carried out by the Secretary outside the Bureau of 
Indian Affairs'' that are for the benefit of Indians because of their 
status as Indians or that are programs with respect to which Indian 
Tribes are ``primary or significant beneficiaries.'' Under this 
provision, the non-BIA bureaus of Interior have no negotiating rights 
with regard to what is authorized by these agreements. Non-BIA bureau 
programs that have both Indian and non-Indian significant beneficiaries 
would be the subjects of funding agreements at the Tribes' discretion. 
The bill provides no authority for the Secretary to require terms to 
ensure protection of non-Indian interests. This is particularly 
troubling combined with the bill's other requirements that ``
      the Secretary may not revise subsequent funding 
agreements without tribal consent;
      funding agreements, at the discretion of the Tribe, may 
be for more than one year;
      Tribes may ``redesign or consolidate programs or 
reallocate funds for programs in any manner that the Indian Tribe deems 
to be in the best interest of the Indian community being served'' as 
long as it does not have the effect of denying services to population 
groups eligible to be served;
      if a Tribe compacts to carry out a service and then finds 
the funding is insufficient, the Tribe can suspend services until 
additional funds are provided; and
      unless the Secretary can show ``irreparable harm,'' a 
program may only be reassumed if there is a hearing on the record that 
finds ``clear and convincing evidence'' that there is ``imminent 
jeopardy to a physical trust asset, natural resources or public health 
and safety;'' or if there is ``gross mismanagement'' on the part of the 
Tribe.
    Take for example Interior's fuels management program related to 
wildfire management. Interior is part of a multi-agency collaborative 
effort with or focused on a common purpose of reducing risks to 
communities, including Indian communities, while improving and 
maintaining ecosystem health. Indian Tribes are significant 
beneficiaries of this program and have a significant stake in it, as 
evidenced by the recent fires in Southern California. Because of the 
proximity of federal, State, Indian, and private lands, fuel management 
activities must be closely coordinated and managed so as to keep the 
entire ecosystem in mind when funding and planning activities. It would 
be unwise to require the Bureau of Land Management (BLM) to provide its 
fuel management monies to Tribes receiving a significant benefit from 
BLM's program without any negotiations or choice on the part of BLM 
when so many non-Indian interests receive benefits as well, 
particularly given the requirements listed above.
    We understand some of the impetus for this legislation at this time 
stems from the agreement between the U.S. Fish and Wildlife Service and 
the Confederated Salish and Kootenai Tribes (CSKT) of the Flathead 
Nation regarding the National Bison Range Complex in Montana. While 
there has been considerable controversy over the 2006 annual funding 
agreement between the Service and the CSKT, through this process we are 
gaining a better understanding of what each party needs to make a 
successful agreement with a non-BIA bureau work well. We believe that 
ultimately the process will grow stronger as a result of our efforts. 
We are opposed to simply providing the receiving party unilateral power 
to determine the terms and length of the agreement as well as the 
disposition of the funds. This is particularly true where non-BIA 
bureaus have other statutory mandates with which they must comply.
    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. Current law also authorizes the Secretary to 
include other programs administered by the Secretary which are of 
special geographic, historical, or cultural significance to the 
participating Tribe requesting a compact. We believe this authority is 
sufficient to protect the interests of Indian Tribes in non-BIA 
programs.
    Finally, H.R. 3994 would require non-BIA agencies to commit funds 
to Tribes for construction projects on a multi-year basis. The 
Secretary is then required to provide the funding amount in the funding 
agreement. Most agencies' programs and projects are funded on an annual 
basis and commitment of funds in future years is illegal. The Secretary 
should not be required to commit funds that are not yet appropriated.
Other Concerns with H.R. 3994
    We also have other concerns with the provisions of H.R. 3994, 
including serious concerns about Federal liability that could arise 
under the bill. H.R. 3994 clearly states in the new section 405(b)(8) 
that a funding agreement shall prohibit the Secretary from waiving, 
modifying, or diminishing in any way the trust responsibility of the 
United States with respect to Indian Tribes and individual Indians. 
Yet, as mentioned above, unless the Secretary can show ``irreparable 
harm,'' a program may only be reassumed if there is a hearing on the 
record that finds ``clear and convincing evidence'' that there is 
``imminent jeopardy to a physical trust asset, natural resources or 
public health and safety;'' or if there is ``gross mismanagement'' on 
the part of the Tribe.
    This standard for reassumption in H.R. 3994 is very different than 
the standard for management of fiduciary trust functions. H.R. 3994 
requires clear and convincing evidence of gross mismanagement or 
imminent jeopardy before a program can be reassumed by the Secretary. 
What is the expectation of the Congress if trust assets, managed under 
a compact or funding agreement, are managed in a way that causes 
jeopardy to them, but not imminent jeopardy, or are negligently 
mismanaged, but not grossly mismanaged? Under either of those 
scenarios, the Secretary has no right to reassume management. Yet, the 
Secretary might be sued for failure to protect these assets.
    The Department is also opposed to section 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 on numerous DOI programs. Under this provision, 
if a Tribe contracts with the Department and then runs out of money to 
carry out the responsibilities under the agreement, the Tribe could 
simply stop performance. The Tribe should return the function to the 
Department to administer if it believes the funding level is inadequate 
rather than have its members suffer if the Tribe decides not to 
perform.
    As mentioned above, the Department is opposed to the reassumption 
provision contained in section 407. The provision would require that 
there be a finding, with a standard of clear and convincing evidence, 
of imminent jeopardy or gross mismanagement before the Secretary can 
reassume management. Such a finding with a preponderance of the 
evidence bars the Secretary from reassumption. Even with a finding 
based on clear and convincing evidence, the Secretary must provide a 
hearing on the record and provide time for corrective action. The 
Secretary may only reassume operations without a hearing if the 
Secretary finds imminent and substantial jeopardy and irreparable harm 
caused by an act or omission of the Tribe and the jeopardy and harm 
must arise out of a failure to carry out the funding agreement or 
compact. Having to meet these latter conditions practically eliminates 
the ability of the Secretary to quickly reassume a program in those 
rare instances where immediate resumption may be necessary, such as 
instances where serious injury or harm may occur. We recommend that the 
reassumption standard contained in the current Title IV be retained.
    H.R. 3994 also raises constitutional problems. In the new section 
413, the bill requires the Secretary to request certain sums of money 
in the President's annual budget request. It also requires the 
President to identify ``the level of need presently funded and any 
shortfall in funding (including direct program costs, tribal shares and 
contract support costs) for each Indian tribe...'' The Recommendations 
Clause of the Constitution vests in the President discretion to 
recommend to Congress ``such Measures as he shall judge necessary and 
expedient.'' To the extent that this section requires the Secretary to 
recommend measures to Congress, it violates the Recommendations Clause.
    Finally, we raise the following other issues:
      Section 405(b)(2)(B) entitled ``Federally Reserved 
Rights.'' This section does not define what a federally reserved right 
is. We presume this is intended to cover rights such as water rights 
which the Federal government reserves for carrying out projects that 
provide services to both Indians and non-Indians. It is unclear what 
will happen to those projects if the Federal government is required to 
provide to an Indian Tribe an amount equal to the proportional share of 
the resource that is associated with the Tribe's federally reserved 
right.
      Section 408(a) regarding Construction Projects entitled 
``Option to Assume Certain Responsibilities.'' This section allows 
Indian Tribes to assume all Federal responsibilities with respect to 
National Environmental Policy Act (NEPA) and the National Historic 
Preservation Act (NHPA). This section needs to make clear that Acts 
like NEPA and NHPA apply to a construction project. We believe 
decisionmaking for construction projects under those Acts should remain 
an inherently federal function.
      Section 408(d) regarding Construction Projects entitled 
``Codes and Standards; Tribal Assurances.'' This section should ensure 
that construction projects meet or exceed federal standards. In 
addition, the bill provides in section 408(g)(2) that, if an Indian 
Tribe prepares planning and design documents for a construction project 
``consistent with the certification by a licensed and qualified 
architect/engineer'' this shall be deemed to be an approval by the 
Secretary of the construction project planning and design documents. 
Deeming approval based on a certification from a non-federal party does 
not provide the Federal government with any protection from tort 
liability in the event there is deficiency in that party's work. The 
Secretary needs an approval role in construction projects funded by 
federal dollars which may have costs in the tens or hundreds of million 
dollars.
      Section 409(j)(3) entitled ``Investment Standard.'' This 
paragraph allows Indian Tribes to invest funds transferred to them for 
programs or projects using the prudent investment standard. This means 
a Tribe could invest these funds in stocks that could later lose a 
significant part of their value. Under the bill, the Tribe would then 
be able either to stop providing services and request more funding or 
return the program to Interior. The Federal government would then, in 
essence, pay twice for the program or project. Current law requires 
that these funds be invested in obligations or securities of the United 
States or securities that are guaranteed or insured by the United 
States. We are opposed to changing this standard.
      Section 412 (b) entitled ``Discretionary Application.'' 
This provision allows Indian Tribes to opt to include any provisions of 
titles I or V of the Act in an Interior compact or funding agreement. 
Many of the provisions of H.R. 3994 are derived from title V. We are 
unclear as to the need for this provision and believe it could result 
in confusion during development of compacts and funding agreements.
      Time deadlines throughout the bill are too short. For 
example, it has been our experience that completing a negotiated 
rulemaking on a complex matter such as this within 18 months has never 
been successful. The requirement that monies reach Tribes within ten 
days of apportionment by OMB is unrealistic.
    As I stated at the beginning of my testimony, P.L. 93-638, as 
amended, has, in large part, been a success story. Our interest is in 
making sure it stays that way. A prudent preliminary analysis of this 
legislation leads us to raise the aforementioned areas of concern. We 
are opposed to the bill's enactment. Also, given the relatively short 
timeframe in which we have had to analyze H.R. 3994, we are continuing 
to review the impacts of H.R. 3994 on both BIA and non-BIA programs of 
the Department.
    Mr. Chairman, this concludes my statement and I will be happy to 
answer any questions you may have.
                                 ______
                                 
    Mr. Rahall. Thank you very much, Mr. Cason. We appreciate 
your testimony, and understand your position and of course do 
hope that doesn't prevent us from working together to improve 
the legislation. My question would be what provisions in the 
proposed legislation are problematic and if you could provide 
us with a detailed list of specifically what these problems are 
for the BIA.
    Mr. Cason. Mr. Chairman, the Department would be happy to 
do that. In the extended version of my opening statement there 
is a number of things that are pointed to there which I didn't 
cover in my oral opening statement. In addition, there are 
other parts of the bill that we did not address in our 
statement to the Committee.
    So there are a number of challenges within this bill that 
we think need to be addressed before the bill makes progress, 
and we would be happy to work with the Indian tribes involved, 
the self-governance group and the Committee on trying to 
address those.
    Mr. Rahall. I appreciate that response. We are going to 
hear from them of course in the second panel, and we are very 
much wanting to work with them and have their involvement at 
every step of the way. Assuming that these problematic 
provisions can be addressed to the satisfaction of the tribes 
and the BIA would the Department support this legislation to 
the extent that it applies to programs that are at the BIA?
    Mr. Cason. Well, Mr. Chairman, the Department already 
supports very aggressively self-governance within the Bureau of 
Indian Affairs. We have had great success over time with 
programs, and functions and services that used to be provided 
by BIA being assumed by Indian tribes under the self-governance 
program.
    It is my estimation that has worked very well over time and 
that many Indian tribes have shown that they have the perfect 
capability of undertaking the programs and services made 
available by BIA. So we have a track record already of that 
happening, and we have a very demonstrable track record that 
many Indian tribes are capable of managing programs.
    Mr. Rahall. If the Indian tribes have complained that there 
is no incentive for the Department to negotiate a compact or 
funding agreement with the tribes. H.R. 3994 proposes to make 
Title IV consistent with Title V and allow tribes to submit a 
final order to which the Department must respond within 45 days 
or the offer is deemed approved.
    So my question is my understanding is that the Department 
opposes this, ``final offer'', provision in the bill. Would you 
have any suggestions on how to provide an incentive to 
encourage the Department to negotiate and enter into compact 
and funding agreements?
    Mr. Cason. Well, Mr. Chairman, it is my understanding that 
the principal concern is not so much related to the programs 
associated with the Bureau of Indian Affairs which was the 
central focus of the underlying bill. The concern more focuses 
upon the programs of non-BIA bureaus.
    I think the track record in fairness has been that there 
has not been a lot of interest over time in the Department of 
Interior for non-BIA programs to be compacted by nearby Indian 
tribes. It is an issue that we have been working on during this 
administration. I would say that we haven't made a lot of 
progress on it because of conflicts that occur.
    We have certain examples right now that we are attempting 
to incorporate Indian and Indian tribe into managing a 
departmental program, and it has been a difficult process 
because as a public matter we have as many public criticisms 
from the individuals in the public who support the base program 
in another agency and that is something that we have to manage 
as well.
    It is something we are interested in, it is something that 
we are trying to make progress on, but the progress has been 
slow.
    Mr. Rahall. Thank you. Thank you, Mr. Cason.
    Mary, do you wish to be recognized?
    Ms. Fallin. Sure.
    Mr. Rahall. Ms. Fallin.
    Ms. Fallin. Thank you, Mr. Chairman, and thank you so much 
for your testimony. Sorry I missed a little bit of it, but I 
appreciate you being here today to visit about a very important 
topic. I had a couple of things I wanted to ask you, Mr. Cason. 
How would extending the provisions of Title X of the Indian 
Self-Determination Act impact Interior's management of its 
Federal funds and its current programs?
    Mr. Cason. The program we have now is very complicated. 
Excuse me. The reason I say that is in a normal Federal 
program, and I will use other agencies within the Department of 
the Interior, for example, like the Bureau of Reclamation, Fish 
and Wildlife Service, Park Service, or Bureau of Land 
Management. Within those organizations, you have very clear 
lines of authority and responsibility. The agency is 
responsible for managing its own assets and its own affairs.
    Within the Indian affairs concept with the introduction of 
self-governance, self-determination, ability to take over 
programs, it has made it much more complicated to run a BIA 
program because you have the broader infrastructure designed to 
support the program, but big pieces of it become missing when 
we give that out to tribes.
    The long-term intent of that process is a good intent, that 
in the long-term as a matter of public policy tribes should be 
running their own affairs. They are sovereign governments 
within the United States, they ought to be running their own 
affairs. It just becomes a matter of finding the right kinds of 
mechanisms to support that.
    My opinion and the administration's opinion on the bill, 
there is a number of problematic things in the bill where we 
don't have the discretion within the Department of Interior 
under the provisions of the bill to make good decisions to 
influence the decisions about how we go about facilitating 
self-governance.
    Within the framework of the bill it is pretty unilateral. 
An Indian tribe comes in, and it says we want to do this and we 
have to give it to them just the way they are coming to ask. 
The funding streams associated with it are ones that we fund a 
base infrastructure from, and when you start taking pieces out 
of the base infrastructure it makes the resulting piece harder 
to run.
    If I illustrate it with a puzzle, if you have a puzzle that 
gives you a nice picture because all the pieces are in and you 
start taking random pieces out, at some point you lose the 
basic infrastructure of the picture. So the suggestion that I 
am making is not to push back that tribal self-governance and 
advancing of it is wrong, no.
    That is the right direction, but we need to find a better 
way to actually manage that transition because it is not a one 
for one, I take this piece out of BIA, I give it to the tribe 
and BIA operates just as efficiently afterwards. So there are 
some complications associated with it, there are some funding 
implications associated with the bill.
    It is pretty clear that in one of the provisions of the 
bill it suggests that the Department would be responsible for 
requesting all of the money needed to properly implement all 
our statutory requirements, and that would be difficult in this 
environment.
    Ms. Fallin. Excuse me. I said Title X, I meant Title V.
    Mr. Cason. I knew what you meant.
    Ms. Fallin. I can read my numbers, I just misspoke.
    Mr. Cason. I knew where you were going.
    Ms. Fallin. Can I ask you another question, too? You 
testified that extending the Title V to Interior programs would 
potentially increase the Federal government's liabilities. In 
what manner and under what circumstances are you thinking that 
this might develop?
    Mr. Cason. Well, the provisions of the bill state 
explicitly that nothing that happens in implementing the bill 
would reduce the Secretary's liability for trust assets. What 
we are effectively doing is removing the Secretary's resources 
to implement trust responsibilities, transferring that to 
tribes under self-governance, the decisions under self-
governance about how to manage those assets, but the Secretary 
still remains liable for whatever the results are.
    One of the fundamental principles of management is you try 
to align resources with responsibility, and that wouldn't 
happen in this case. So that is one of the areas that we would 
be concerned with.
    Ms. Fallin. OK. Thank you, Mr. Chairman. Thank you.
    Mr. Rahall. The gentleman from Michigan. Sir.
    Mr. Kildee. First of all, thank you for your testimony this 
morning. I have more of a statement. I have been running back 
and forth between two hearings in both of my committees.
    I want to do everything we can working with you and working 
with the various sovereign tribes in this country to best 
recognize the needs of the Indian tribes and to give them the 
tools they need to serve their citizens and at the same time 
focus on their sovereignty and focus on the government-to-
government obligations we have through the various treaties and 
the various agreements we have made with the Indian tribes, so 
I think we have to have a continuing growth of the self-
determination.
    They have an obligation to serve their citizens. I use the 
term citizen rather than members because they are sovereign 
governments. So I want to work with the tribes and with 
yourself to see how they can achieve this self-determination 
and at the same time recognize that the Federal government has 
a government-to-government responsibility, also, to carry out 
the various treaty and other agreements with the native people 
and their sovereign tribes.
    Thank you very much, Mr. Chairman.
    Mr. Rahall. Thank you, Mr. Kildee.
    Mr. Carson, we thank you. Cason, I am sorry. I am sorry, 
Jim.
    Mr. Cason. That is all right, Mr. Chairman.
    Mr. Rahall. We thank you very much for being with us today. 
We may have some additional questions, other members may have 
as well, and we would ask that you answer those in writing at a 
later time.
    Mr. Cason. We would be happy to.
    Mr. Rahall. Thank you. Thank you very much.
    Mr. Cason. Thank you.
    Mr. Rahall. Our next panel is composed of the following 
individuals: Honorable Ron Allen, Chairman of the Jamestown 
S'Klallam Tribe; and Honorable Melanie Benjamin, Chief 
Executive, the Mille Lacs Band of Ojibwe; Honorable Jefferson 
Keel, Lieutenant Governor, Chickasaw Nation; Honorable J. 
Michael Chavarria, the Governor of the Pueblo of Santa Clara; 
Mr. Ben Stevens, the Executive Director, Council of Athabascan 
Tribal Governments.
    Lady and gentlemen, we welcome you to our committee this 
morning. As I said earlier, we do have your prepared 
testimonies, and they will be made part of the record as if 
actually read. You are recognized to proceed as you wish. I 
believe the gentlelady from Oklahoma would like to introduce 
one of the members of the panel, and I recognize her now for 
that purpose.
    Ms. Fallin. Thank you, Mr. Chairman. I appreciate that. I 
had mentioned I would like to say a few words about Lieutenant 
Governor Keel because I have known him for a very long time. I 
ran into him a few minutes ago getting a cup of coffee down at 
the basement snack bar and just wanted to say welcome to 
Washington, D.C.
    He was very fortunate just to win his third term as 
Lieutenant Governor of the Chickasaw Tribe, and I have had the 
opportunity to work with him for many years. I was the former 
Lieutenant Governor of Oklahoma, so we have common positions 
that we have both enjoyed spending time together and working on 
behalf of the state.
    Please tell your Governor, Governor Anoatubby, how much we 
appreciate you coming up here. He represents Congressman Cole's 
district. Congressman Cole is on this committee. I don't know 
where he is at today. Congressman Boren of course is from 
Oklahoma. So we welcome you, and we are glad to have you here 
and thank you for helping us with this testimony on a very 
important piece of legislation. Welcome.
    Ms. Fallin. Thank you, Mr. Chairman. I yield back my time.

          STATEMENT OF THE HONORABLE JEFFERSON KEEL, 
             LIEUTENANT GOVERNOR, CHICKASAW NATION

    Mr. Keel. Thank you, Mr. Chairman. Ma'am, I certainly 
appreciate that. I am honored to be here. My name is Jefferson 
Keel, I am the Lieutenant Governor of the Chickasaw Nation. We 
are located in Oklahoma. On behalf of the tribes in Oklahoma I 
do want to thank you for the honor of being here to testify on 
behalf of those tribes that have entered into the self-
governance compacting arrangements with the Federal government.
    I also serve as the First Vice President of the National 
Congress of American Indians, and I can assure you that the 
National Congress of American Indians does in fact support this 
legislation and are in fact in favor of the passage of this.
    The Indian tribes in Oklahoma that have compacted with the 
Federal government under the Self-Determination Act have 
experienced tremendous success in operation of the programs and 
services that they have compacted to manage on behalf of the 
people that they serve.
    They have proven that they are both responsible, they 
accept the responsibility that comes with governing themselves, 
but also, they have proven and shown that they are closer to 
the people that they serve, they can in fact prioritize the 
needs of those people and can manage the assets and resources 
that have been given to them for the operation of those 
programs.
    The Chickasaw Nation has engaged in self-governance 
compacting with the Department of the Interior since Fiscal 
Year 1994. We have in fact achieved great success in the 
operation of those programs. We have a compact with the Indian 
Health Service within the Department of Health and Human 
Services since Fiscal Year 1995, and we do in fact enjoy 
success in the operation of that program.
    The greater level of success in the operation of health 
programs is due in fact to the authority and flexibility of 
self-governance law provided in Title V of the Indian Self-
Determination and Education Assistance Act.
    Since taking over the Federal operation of its health 
program, the Chickasaw Nation has expanded staffing, vastly 
improved capital infrastructure and increased service capacity 
well beyond anything anticipated. The number of physicians on 
the staff has increased by more than threefold.
    Tribal Federal partnerships and leveraging Federal funding 
have allowed for the construction of health clinics, wellness 
centers and a pharmacy distribution facility. The Federally 
designed hospital that had anticipated a capacity of 60,000 
patient visits per year under Federal operation has realized 
more than 300,000 patient visits in the past fiscal year.
    In addition to that, with regard to the BIA programs we 
have achieved similar success. Contained in Mr. Cason's 
testimony is in fact some examples that I would like to iterate 
just for the record. The accomplishments of the Chickasaw 
Nation in 2006 included education services to over 7,000 
students, over 950 students participated in remedial education 
and tutoring and 82 percent of those students received tutoring 
gained one grade level or more.
    The Chickasaw Nation is also engaged in the governing or 
the compacting of the law enforcement agency. We refer to them 
as the Lighthorse Police. They have implemented a new computer 
system which has aided in multiple dispatching methods and 
improved data collection, investigation and crime analysis and 
reporting.
    The flexibility allows us to enter into cross-deputization 
agreements with other local and state law enforcement agencies, 
and it does in fact allow us to better police and serve the 
people that we serve. There are a number of other successes 
that we enjoy, but in the essence of time, my written testimony 
has been provided, and I would actually submit those for the 
record.
    I want to thank you for the honor of allowing me to testify 
this morning. Thank you.
    Mr. Rahall. Thank you, Lieutenant Governor.
    Chairman Allen, you want to proceed?
    [The prepared statement of Mr. Keel follows:]

           Statement of Jefferson Keel, Lieutenant Governor, 
                          The Chickasaw Nation

    I am Jefferson Keel, Lt. Governor for the Chickasaw Nation, and I 
also served as the First Vice President of the National Congress of 
American Indians. On behalf of the Chickasaw Nation, thank you for this 
opportunity to testify in support of H.R. 3994, the Department of the 
Interior Tribal Self Governance Act of 2007.
    The Chickasaw Nation has engaged in self governance compacting with 
the Department of Interior since Fiscal Year 1994, and has achieved 
great success in the operation of its programs. Furthermore, the 
Chickasaw Nation has had a compact with the Indian Health Services 
within the Department of Health and Human Services since Fiscal Year 
1995, and has enjoyed even greater success.
    The greater level of success in the operation of health programs is 
due, in part, to the greater authority and flexibility of self-
governance law provide in Title V of the Indian Self Determination and 
Education Assistance Act (ISDEAA). Since taking over the federal 
operation of its health program, the Chickasaw Nation has expanded 
staffing, vastly improved capital infrastructure, and increased service 
capacity well beyond anything anticipated. The number of physicians on 
staff has increased by more than three-fold. Tribal-federal 
partnerships and leveraging federal funding have allowed for the 
construction of health clinics, wellness centers and a pharmacy 
distribution facility. And a federally-designed hospital facility that 
had an anticipated capacity of 60,000 patient visits per year under 
federal operation, realized more than 300,000 patient visits in the 
past fiscal year.
    Authority for clearly identified availability and use of tribal 
funds, tribal management of construction programs and streamlined 
administrative requirements contained in Title V of the ISDEAA have all 
contributed to more effective compact and funding agreement 
negotiation, program management and service delivery. Similar authority 
for Department of Interior and related programs is strongly desirable.
    The time for update Title IV of the ISDEAA is long overdue. The 
self governance compacting process authorized under Title V of the 
ISDEAA with the Department of Health and Human Services affords unique 
opportunities to tribes currently non-existent with the Department of 
the Interior.
    The strengthening and expansion of compacting authorities in H.R. 
3994 allow tribes more flexibility in investment and interest income, 
operating construction programs and conducting compact negotiations 
with Interior.
    Specific language allowing the prudent investment of advanced 
funding provides the opportunity for tribes to earn additional service 
dollars and to carry-over funds into subsequent fiscal years without 
jeopardizing future funding. In a federal budget environment where 
every federal dollar appropriated to discretionary programs becomes 
more dear, increasing a tribes' ability to provide more services 
through earned revenues becomes more important.
    Various capital improvements are sorely needed throughout Indian 
country, and the expansion of authority for the operation of 
construction programs contained in the bill, including advance payment, 
contingency and savings provisions, will greatly enhance tribal 
management of construction projects.
    H.R. 3994 authorizes a final offer process in compact negotiations, 
similar to that with DHHS, is of specific importance. No longer can a 
compact or funding agreement negotiation be dragged-out indefinitely. 
The inclusion of final offer provision establishes a definitive means 
and timeframe for concluding negotiations. Additionally, clear language 
on the availability of tribal shares will allow tribes to negotiate for 
fair funding for the administration of compacts and compacted programs.
    However, despite the clear advantages of the proposed bill for 
tribal compacting, a provision within the existing law needs to be re-
added that will further reduce the administrative burden of managing 
self governance compact and funding agreements. The existing language 
of Section 403(h), codified at 25 USC 458cc(h), would maintain an 
existing authority that is still needed.
    Therefore, I am requesting that the following provision be added to 
the language of H.R. 3994:
        ``(h) Civil actions
               (1) Except as provided in paragraph (2), for the 
            purposes of section 450m-1 of this title, the term 
            ``contract'' shall include agreements entered into under 
            this part.
               (2) For the period that an agreement entered into under 
            this part is in effect, the provisions of section 81 of 
            this title, section 476 of this title, and the Act of July 
            3, 1952 (25 U.S.C. 82a), shall not apply to attorney and 
            other professional contracts by Indian tribal governments 
            participating in Self-Governance under this part.''
    Mr. Chairman, as you well know, the very core of self governance is 
tribal governments retaining the ability to control and manage its 
affairs to better serve Indian people. A critical step in retaining 
this control is granting tribal governments the full right to exercise 
self-government through the transfer and effective management of 
federal programs designed to benefit Indian people. This is a vision 
that extends to all Indian people, and I urge you to support and 
promote this long-overdue reaffirmation of an Indian Tribe's inherent 
right to self-government.
    Thank you.
                                 ______
                                 

             STATEMENT OF THE HONORABLE RON ALLEN, 
              CHAIRMAN, JAMESTOWN S'KLALLAM TRIBE

    Mr. Allen. Thank you, Mr. Chairman, and thank you for 
accepting our testimony on this very important matter. I am 
Chairman of the Jamestown S'Klallam Tribe located up in 
northwest Washington.
    Mr. Rahall. Maybe you want to put your microphone on.
    Mr. Allen. I am sorry. Guess I had to turn that on, didn't 
I? OK. So anyhow, as the Chair of the Jamestown S'Klallam up in 
northwest Washington State I have been a Chair for 30 years and 
have been involved with these pieces of legislation that affect 
our tribes throughout that time.
    I have had the honor and pleasure of watching the tribes 
grow as governments and interact with the Federal government, 
taking on our responsibilities as governments and advancing our 
goals and objectives for our tribal citizens. It has been a 
fabulous experience, and I really want to emphasize to this 
committee that the tribal governments have increased our 
capacity many times over.
    Our ability to take on programs from the BIA to IHS to 
other agencies has moved forward exponentially and in a very 
impressive manner, which is really exciting for all of us in 
Indian country. This bill is an important bill for us to 
advance this concept.
    My tribe was one of the original 10 tribes back in 1988 
when this emerged out of that brouhaha that emerged with regard 
to mismanagement, fraud, abuse, misuse by Federal programs as 
they are applicable to Indian tribes in our communities. From 
that they basically said well, if the self-determination wasn't 
quite working right and the bureaucracy wasn't quite working 
right, what is the better system?
    We emerged after negotiating with the administration and 
subsequently proposing legislation to this Congress that it 
accepted with this self-governance concept. It really is about 
empowering the tribes as governments. Putting us in control of 
the resources that are intended for our people so that we can 
make choices just like the Federal government does or state 
government does on behalf of its citizens.
    That is what the system is all about. It is intended to 
reduce Federal bureaucracy and enhance the tribal operations 
and capacity to better use the very limited resources that are 
available for our citizens that Congress has made available for 
all of the various programs. We have had nothing but success.
    We have written books and, again, provided reports on the 
success of our program. It doesn't mean that we haven't had 
problems. We do have problems. Any time you are going to reduce 
bureaucracy the bureaucracy is going to fight it. The 
bureaucracy is always going to justify its intention and its 
purpose.
    We have found ourselves wrestling with the bureaucracy with 
regard to what Congress intended in terms of transferring these 
resources and functions over to the tribal governments. When 
the bills were passed we tried to negotiate regulations, and we 
went through five years, almost six years, of negotiating for 
regulations for a law that Congress passed.
    It became evident to us that we are going to have to ask 
Congress to clarify its intent by amending the legislation. Now 
subsequently, after the bill was passed in the early 1990s and 
IHS became involved through Title V, we were more successful 
there and Congress clarified, you know, what its intent was 
with regard to that agency, which is far larger than the BIA.
    The amount of money that Congress appropriates for those 
programs is far greater than the BIA. As a matter of fact, the 
success is greater over there. We have over 330 tribes 
participating in IHS. We have 230 tribes, 234 I think it is, 
with the BIA. Now, it doesn't mean that it is a failure on the 
BIA side, it just means that there are some recalcitrance 
issues that we have to deal with.
    So we believe that this bill is addressing many of those 
issues to continue to advance this improved relationship 
between the tribe and the Federal government with respect to 
the BIA and the non-BIA agencies that have programs that are 
very relevant to our interest.
    We think that it provides a vehicle and a clear process in 
terms of how we can negotiate and address the issues of concern 
on the Department side as well as the desires on the tribal 
side to come to a common agreement. Now, I will emphasize that 
there are a lot of issues and clarifications, sometimes 
confusion over how this process works. It is not easy, but no 
one said it was going to be easy, but it is working.
    We simply need further instruction from Congress, and this 
is common when Congress has advanced a new initiative, that you 
have to work out the issues and find a common ground to make it 
work forward. Now, what is not in this bill is a section that 
we would like you to consider, and we have attached it to our 
testimony, Section 419, that would deal with the transportation 
side of issues that affect our communities, and it is Section 
419 that deals with the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy of Users (SAFETEA-LU) 
program.
    We would ask you to consider that because transportation 
infrastructure for our tribal communities is as important as 
the services to our communities, and we believe that it should 
be incorporated in so that we eliminate a lot of the 
unnecessary bureaucracy, and the transfer of those functions 
and the oversight of those functions from DOT to BIA and 
Interior and back to the tribes.
    So I will close, Mr. Chairman, with those opening comments, 
and appreciate your leadership in helping us move this agenda 
forward, Representative Boren for introducing this legislation. 
We are excited to move this agenda forward. Thank you.
    Mr. Rahall. Ms. Benjamin, I am sorry, you may proceed.
    [The prepared statement of Mr. Allen follows:]

              Statement of W. Ron Allen, Tribal Chairman/
           Chief Executive Officer Jamestown S'Klallam Tribe

    Good morning. Thank you for the opportunity to be here today. My 
name is W. Ron Allen and I am the Tribal Chairman and Chief Executive 
Officer of the Jamestown S'Klallam Tribe located in Washington State. I 
am also the Chairman of the Department of the Interior (DOI) Self-
Governance Advisory Committee. Today, I offer my testimony in both 
these capacities.
    I am pleased to testify in support of H.R. 3994, a bill to 
strengthen Indian tribes' opportunities for Self-Governance by amending 
Title IV of the Indian Self-Determination and Education Assistance Act 
(P.L. 93-638 as amended). The proposed Title IV amendments advance 
several important purposes. First, they ensure consistency between 
Title IV and Title V, the permanent Self-Governance authority within 
the Department of Health and Human Services enacted in 2000. Second, 
they broaden and clarify the scope of compactable programs, especially 
those in DOI agencies other than the Bureau of Indian Affairs (BIA). 
Third, they introduce clear timelines and criteria under which BIA and 
other Interior agencies must consider tribal proposals, and the appeal 
procedures to be followed when a tribe challenges an agency decision 
declining a proposal.
    The true import of these proposed amendments, however, cannot be 
understood without an appreciation of the unprecedented positive impact 
Self-Governance has had on Indian tribes over the past almost 20 years.
Background of Title IV
    Although it is hard to imagine today, prior to 1975 the federal 
government administered almost all programs serving American Indian and 
Alaska Native tribes. In 1975, the ISDEAA was enacted with three 
primary goals: (1) to place the federal government's Indian programs 
firmly in the hands of the local Indian people being served; (2) to 
enhance and empower local tribal governments and their governmental 
institutions; and (3) to correspondingly reduce the federal 
bureaucracy.
    The original Title I of the Act, still in operation today, allows 
tribes to enter into contracts with the Department of Health and Human 
Services (DHHS) and the DOI to assume the management of programs 
serving Indian tribes within these two agencies. Frustrated at the 
stifling bureaucratic oversight imposed by BIA and the Indian Health 
Service (IHS), and the lack of flexibility and cost-effectiveness 
inherent in Title I contracting, a small group of tribal leaders helped 
win passage of the Tribal Self-Governance Demonstration Project. In 
1988, Congress launched a Demonstration Project authorizing the 
Jamestown S'Klallam Tribe and nine other tribes to enter into a 
demonstration phase. Seven of the nine Tribes entered into planning and 
negotiations grants and in 1991 negotiated compacts with DOI. In 1992, 
DHHS followed in the planning and negotiations process. Unlike Title I 
contracts--which subjected tribes to federal micromanagement of assumed 
programs and forced tribes to expend funds as prioritized by BIA and 
IHS officials--Self-Governance agreements allowed tribes to make their 
own determinations of how program funds should be allocated. The 
Demonstration Project proved to be a tremendous success, and in 1994, 
Congress enacted Title IV of the Indian Self-Determination Act, thereby 
implementing a permanent Tribal Self-Governance program within DOI.
The Success of Self-Governance
    The increasing number of tribes that have opted to participate in 
Self-Governance on an annual basis reflects the success of Self-
Governance. In Fiscal Year 1991, the first year Self-Governance 
agreements were negotiated by the BIA with tribes, only seven tribes 
entered into agreements. At that time, the total dollar amount 
compacted by Indian tribes was $27,100,000. By Fiscal Year 2006, 231 
tribes and tribal consortia entered into 91 annual funding agreements, 
operating over $300 million in programs, functions, services and 
activities.
    The growth in tribal participation in Self-Governance revealed by 
these numbers is remarkable. The number of tribes and tribal consortia 
participating in Self-Governance today is 33 times greater than in 
1991. While only a tiny fraction of tribes participated during the 
first year in 1991, today approximately 40% of all federally-recognized 
tribes are Self-Governance tribes and the interest by other tribes is 
continuing to grow.
    Under Self-Governance, tribes have assumed the management of a 
large number of DOI programs, including roads, housing, education, law 
enforcement, social services, court systems, and natural resources 
management. Why? Simply put, Self-Governance works because it:
      Promotes Efficiency. Devolving federal administration 
from Washington, D.C. to Indian tribes across the United States has 
strengthened the efficient management and delivery of federal programs 
impacting Indian tribes. As this Committee well knows, prior to Self-
Governance, up to 90% of federal funds earmarked for Indian tribes were 
used by federal agencies for administrative purposes. Under Self-
Governance, program responsibility and accountability has shifted from 
distant federal personnel to elected tribal leaders. In turn, program 
efficiency has increased as politically accountable tribal leaders 
leverage their knowledge of local resources, conditions and trends to 
make cost-saving management decisions.
      Strengthens Tribal Planning and Management Capacities. By 
placing tribes in decision-making positions, Self-Governance vests 
tribes with ownership of the critical ingredient necessary to plan our 
own futures--information. At the same time, Self-Governance has 
provided a generation of tribal members with management experience 
beneficial for the continued effective stewardship of our resources.
      Allows for Flexibility. Self-Governance allows tribes 
great flexibility when making decisions concerning allocation of funds. 
Whether managing programs in a manner consistent with traditional 
values or allocating funds to meet changing priorities, Self-Governance 
tribes are developing in ways consistent with their own needs and 
priorities, not a monolithic federal policy.
      Affirms Sovereignty. By utilizing signed compacts, Self-
Governance affirms the fundamental government-to-government 
relationship between Indian tribes and the U.S. Government. It also 
advances a political agenda of both the Congress and the 
Administration: namely, shifting federal functions to local 
governmental control.
    In short, Self-Governance works, because it places management 
responsibility in the hands of those who care most about seeing Indian 
programs succeed: Indian tribes and their members.
Need for Title IV Amendments
    As important and successful as the Self-Governance initiative has 
been for my Tribe and so many others, it is not perfect. Shortly after 
Title IV was enacted, the DOI began a rulemaking process to develop and 
promulgate regulations. The process was a failure in many ways. 
Ultimately, five years after the rulemaking process began, DOI 
published regulations that, from the tribal perspective, failed to 
fully implement Congress's intent when Title IV was enacted. Instead of 
moving the initiative forward, it moved backwards.
    Tribal leaders began discussions about how the statute could be 
amended. At the same time, Congress in 2000 enacted Title V of the 
ISDEAA which created a permanent Self-Governance authority within DHHS, 
and which directly addressed many of the issues that proved to be 
problematic during the Title IV rulemaking process. But many of the 
improvements and tribal authority reflected in Title V remain absent 
from Title IV. Consequently, many Self-Governance tribes are forced to 
operate under two separate administrative requirements, one for IHS and 
one for BIA.
    Tribal leaders decided that Title IV needed to be amended to 
incorporate many of Title V's provisions. It has long been a top 
legislative priority of tribal leaders to amend Title IV. Three years 
ago, I testified before the Senate Committee on Indian Affairs in 
support of S. 1715, a bill that would have amended Title IV in many of 
the same ways as H.R. 3994. Although that bill did not pass, tribes 
continued to work toward amending Title IV. Numerous meetings and 
extensive correspondence between tribal and federal representatives 
sought to narrow the remaining differences. On September 20, 2006, 
several tribal leaders presented testimony to the Senate Committee on 
Indian Affairs regarding problems in implementing Self-Governance 
within DOI under Title IV. These problems, ranging from inadequate 
funding levels to bureaucratic recalcitrance, have caused participation 
in tribal Self-Governance to level off and even recede. That is 
unfortunate since Self-Governance has dramatically improved the 
efficiency, accountability and effectiveness of programs and services 
for my Tribe and many other tribes and their members. The Senate 
hearing reinforced the need to continue the tribal-federal effort to 
reach agreement on Title IV amendments.
    In the past year, the ongoing negotiations between the Tribal Title 
IV Task Force and DOI representatives intensified. During those 
discussions, DOI representatives identified concerns with earlier 
versions of the draft legislation that the tribal technical team sought 
to address in subsequent versions. The proposed bill incorporates all 
of the resulting changes that have been agreed upon by tribal and 
federal representatives. While some points of contention remain, 
agreement has been reached on 95% of the issues. The vast majority of 
the proposed amendments are not new or radical ideas--most have been 
adapted from the DHHS version of Self-Governance in Title V.
    Thus, H.R. 3994 reflects nearly six years of discussion, drafting, 
negotiation, and redrafting. The time has come to pass this 
legislation, which would significantly advance Congress's policy of 
promoting Tribal Self-Governance.
Overview of H.R. 3994
    The proposed bill will bring Title IV into line with Title V, 
creating administrative efficiencies for tribes while also importing 
the beneficial provisions of Title V currently missing in the older 
Self-Governance statute. Let me quickly summarize a few of the key 
provisions in H.R. 3994. To address problems in the DOI's 
implementation of tribal Self-Governance, and to expand tribes' options 
for pursuing their right to Self-Governance, H.R. 3994 would, among 
other things:
      Expand the scope of contractible programs from those 
benefiting Indians exclusively to those of which Indians are ``primary 
or significant beneficiaries'';
      Allow tribes to contract their shares of programs 
involving federally reserved rights of tribes to water or other 
resources;
      Expand tribal rights to compact non-BIA programs within 
DOI;
      Clarify and limit the reasons for which the agency may 
decline to enter a proposed agreement, and the time frame for making 
the decision;
      Protect tribes from DOI attempts to impose unauthorized 
terms in compacts or funding agreements; and
      Provide a clear avenue of appeal and burden of proof for 
tribes to challenge adverse agency decisions.
    Of course, the DOI does not agree with the way H.R. 3994 addresses 
all of the issues listed above, and you may hear testimony from 
Department representatives opposing one or another provision of the 
bill. In weighing such testimony, I ask that you keep three facts in 
mind. First, the bill contains the consensus language on 95% of the 
original points of contention, which federal and tribal representatives 
were able to work through over the course of several years. The 
enormous progress made over that time should not be squandered merely 
because a few disagreements remain.
    Second, there is ample precedent for most of the provisions to 
which DOI has not yet agreed. Title V, which has worked very well in 
the context of health care services, served as the model for H.R. 3994 
and contains most of the contested provisions, none of which has caused 
the IHS concern over the years.
    Finally, to some extent Self-Governance presents an inherent, and 
perhaps intractable, tension between tribes and the Department. A 
bureaucracy such as the DOI will inevitably resist yielding its 
authority--and its funding--to other entities, such as tribes. For this 
reason, complete agreement between tribal and federal viewpoints is 
impossible, and Congress should not wait for such agreement before 
acting. I believe that H.R. 3994 appropriately balances the interests 
of the federal and tribal governments, and we believe this Committee 
will too.
Need to Clarify the Applicability of Title IV to the Department of 
        Transportation
    None of the provisions presently included in H.R. 3994 are new. 
Tribal leaders have been advocating them for over six years and many of 
them come directly from Title V itself. I would like to take a few 
minutes to discuss a provision that I believe should be added to the 
bill that would be new. However, a proposed Section 419 would clarify 
that Title IV applies to agreements entered into by tribes and the 
Department of Transportation (DOT) to carry out transportation programs 
such as the Indian Reservation Roads Program. See enclosed description 
of the provision.
    Let me explain why this new provision is a good idea. The 2005 
highway bill, SAFETEA-LU, authorized tribal governments to receive 
funding from and participate in a number of Department of 
Transportation (DOT) programs as direct beneficiaries without having 
the BIA or state governments acting as intermediaries. Agreements can 
be entered directly with the Secretary of Transportation to undertake 
transportation functions ``in accordance with the [ISDEAA].'' 
1 Some DOT officials have interpreted this language to mean 
the agreements must be consistent with the ISDEAA but are not really 
ISDEAA agreements. This erroneous interpretation has caused a great 
deal of confusion and disagreement over whether, and to what extent, 
Title IV applies to DOT. The new section 419 would make clear that the 
negotiation and implementation of tribal funding agreements with DOT 
will be governed by Title IV.
---------------------------------------------------------------------------
    \1\ 23 U.S.C. Sec. 202(d)(5).
---------------------------------------------------------------------------
Conclusion
    In conclusion, I would like to step back for a moment and reinforce 
a broader point. As Chairman of the DOI Self-Governance Advisory 
Committee, I have had the opportunity to talk regularly with many other 
tribal leaders regarding Self-Governance. Although they recognize the 
implementation problems cited above, and the need for the amendments 
embodied in H.R. 3994, every single tribal leader made a point of 
praising the overwhelming success of Self-Governance and the positive 
improvements in their respective communities as a result. That has also 
been our experience at my Tribe as well. Self-Governance allows us to 
prioritize our needs and plan our future in a way consistent with the 
Tribe's distinct culture, traditions, and institutions.
    My deepest hope is that this Congress will enact H.R. 3994 so that 
we can build on the successes of the past 19 years and further the 
Self-Governance of Indian tribes, in partnership with the United 
States, to achieve our mission and goals.
    Thank you.

                        Proposed new Section 419

``SEC. 419 Applicability of the Act TO THE DEPARTMENT OF TRANSPORTATION
    (a) The Secretary of the Department of Transportation shall carry 
out a program within the Department of Transportation to be known as 
the Tribal Transportation Self-Governance Program.
    (b) Notwithstanding any other provision of law, the Secretary of 
Transportation shall enter into funding agreements under this title 
with any Tribe who elects to utilize the authority of this title to 
govern any funds made available to Indian tribes under the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (Pub. L. 109-59) or successor authorities.
    (c) Notwithstanding any other provision of law, the negotiation and 
implementation of each funding agreement entered into under this 
section shall be governed by the provisions of this title. ``

                    Explanation for new Section 419

    The Safe, Accountable, Flexible, Efficient Transportation Equity 
Act: A Legacy for Users (SAFETEA-LU) authorized tribal governments to 
receive funding from and participate in a number of Department of 
Transportation (DOT) programs as direct beneficiaries without having 
the Bureau of Indian Affairs or state governments acting as 
intermediaries. For example, section 1119(g)(4) of SAFETEA-LU [23 
U.S.C. Sec. 202(d)(5)] provides for tribal governments to enter into 
contracts and agreements directly with the Secretary of Transportation 
to undertake transportation functions ``in accordance with the Self-
Determination and Education Assistance Act...'' (ISDEAA). Some DOT 
Federal Highway Administration (FHWA) officials have interpreted this 
``in accordance with'' language to somehow mean that FHWA-Tribe 
agreements under SAFETEA-LU are not ISDEAA agreements, and they have 
refused to include standard Title IV provisions in their agreements. 
This erroneous interpretation has sharply limited the number of FHWA-
Tribe agreements that have been executed, and has generated a great 
deal of confusion and disagreement over the scope and extent of the 
applicability of Title IV to those agreements.
    Section 419 will fix these problems by establishing a Tribal 
Transportation Self-Governance Program within the DOT. It directs DOT, 
upon the request of an Indian tribe, to enter into funding agreements 
under Title IV for any programs and funding made available to tribes by 
SAFETEA-LU. This section makes clear that the negotiation and 
implementation of those funding agreements will be governed by Title 
IV. Section 419 would echo existing authority in SAFETEA-LU and clarify 
in Title IV itself that Title IV applies to these DOT funds and 
programs.
                                 ______
                                 

         STATEMENT OF THE HONORABLE MELANIE BENJAMIN, 
           CHIEF EXECUTIVE, MILLE LACS BAND OF OJIBWE

    Ms. Benjamin. Good morning, Mr. Chairman, and members of 
the Committee. On behalf of the Mille Lacs Band of Ojibwe I am 
pleased to appear today in support of H.R. 3994. Less than two 
months ago we celebrated an important 20 year anniversary in 
Federal Indian policy. September 17, 1987, was the 200th 
anniversary of the U.S. Constitution.
    Tribes met to discuss the meaning of our relationship with 
the U.S. It was at this meeting that the concept of modern day 
self-governance policy was born. These visionary leaders 
prepared a tribal self-governance path for the rest of us to 
follow built on six foundations.
    First, that each Federal agency deal with tribes on a 
government-to-government basis. Second, that all Federal 
agencies recognize the fact that the most efficient way to 
provide services to tribal members is through Indian tribes. 
Third, that tribal, not Federal priorities should shape what is 
done in our communities.
    Fourth, that Federal agencies should rely on the fact that 
the elected leadership of tribes are accountable to tribal 
members. Fifth, the Federal systems should be converted into 
resource centers that provide technical assistance to tribal 
governments. Sixth, no program that is supposed to benefit at 
tribe should be kept out of reach of a tribe seeking to take 
over that function.
    This six pillars of tribal self-governance have served us 
well for the past 20 years, but as with all good ideas that 
have weathered the storms of time there is room for 
improvement, which brings me to the need for H.R. 3994, the 
bill before the Committee today.
    In 1994, Congress enacted Title IV which governs our BIA 
and Interior funded self-governance operations. When Congress 
wrote Title V in 2000, which governs Indian Health Service 
self-governance, it made several improvements. Unfortunately, 
Title IV has not received those same improvements, and so 
tribes like the Mille Lacs Band must operate under two sets of 
rules.
    Ironically, self-governance was supposed to streamline 
tribal operations. Instead, two different laws have made tribal 
administration more complex. H.R. 3994 would bring Title IV 
into conformity with Title V. This is long overdue. We support 
the bill because it clarifies many things.
    First, H.R. 3994 defines very narrowly the types of Federal 
functions that can't be transferred to Indian tribes. Second, 
the bill defines very broadly the tribal shares that can be 
transferred to Indian tribes. Combined, these two changes will 
streamline negotiations. Third, the bill would prohibit Federal 
officials from making unilateral changes to our agreements 
after they have been negotiated by requiring our consent to any 
changes.
    Fourth, tribal shares of central office functions were 
initially provided to some self-governance tribes. In the mid-
1990s the administration stopped this through an appropriation 
rider. The bill restores this practice. Fifth, tribal shares of 
the Office of the Special Trustee were also once provided to 
some self-governance tribes.
    Again, in the mid-1990s the administration stopped this 
practice by moving some trust management functions from BIA to 
OST and then claimed those dollars were beyond the reach of 
self-governance tribes. The bill restores the original system 
and practice. Sixth, and perhaps one of the most important 
changes, H.R. 3994 would apply final offer procedures if 
negotiations reach an impasse.
    This would require the Interior Department to follow 
specific timeframes in concluding negotiations. Similar 
provisions in Title V have streamlined negotiations with IHS 
since 2000. We also strongly support a new Section 419 which 
would clarify that the Secretary of Transportation is to enter 
into funding agreements under Title IV for reservation road 
funds.
    This provision is critical for tribes seeking to improve 
their infrastructure. Finally, Mr. Chairman, I want to note 
that last Saturday a 15 year old law enforcement agreement 
between the Mille Lacs Band of Ojibwe and the Mille Lacs County 
ended. In my written statement I have detailed the legal 
hostilities that resulted in the termination of the agreement, 
all which stem from the county's insistence that our 
reservation no longer exists.
    I want to refer you to a recommendation by University of 
Minnesota Professor Kevin Washburn when he appeared before the 
Senate Committee a few months ago to discuss law enforcement in 
Indian country. He talked about our situation with Mille Lacs 
County and suggested in extreme situations like ours when 
retrocession of Public Law 280 jurisdiction is not an option 
the Federal government must find a way to enter into a direct 
relationship with tribes for purposes of law enforcement.
    I attached his recommendations in my written statement for 
your further review. If there is a way to create a law 
enforcement pilot program under self-governance we would 
request your support and ask that Mille Lacs be included. In 
conclusion, I just want to mention a final word about where 
self-governance is going in the long run.
    About 12 years ago the Mille Lacs Band sat down with the 
Clinton administration and looked at whether we could move 
tribal self-governance to the next level. We sought to 
consolidate into one single agreement all Federal funds the 
Band was eligible to receive. This would bring us closer to 
restoring a full government-to-government relationship that our 
treaties once provided.
    To the Mille Lacs Band this is a logical progression of 
self-governance, and we are very interested in pursuing this 
idea. I thank you, Mr. Chairman, and members of the Committee 
for your support of self-governance and urge you to adopt H.R. 
3994.
    Mr. Rahall. Thank you. Let us see. Governor Chavarria.
    [The prepared statement of Ms. Benjamin follows:]

            Statement of Melanie Benjamin, Chief Executive, 
                       Mille Lacs Band of Ojibwe

    Good morning, Mr. Chairman and members of the Committee. I am 
pleased to appear today in support of H.R. 3994, a bill to amend Title 
IV of the Indian Self-Determination and Education Assistance Act to 
provide further self-governance by Indian tribes.
    On behalf of the Mille Lacs Band of Ojibwe, thank you for convening 
this hearing, and for collaborating with Representatives Boren and 
Pallone and others in introducing this bill.
    H.R. 3994 has the strong support of the Mille Lacs Band. It 
contains many provisions we and other Indian Tribes have long sought to 
be written into federal law. We ask that you make every effort to 
secure early passage of H.R. 3994 by the House and Senate.
    My testimony will survey some relevant history, describe why key 
provisions of H.R. 3994 are needed, and provide some examples of tribal 
self-governance successes that can and should be replicated. I will 
urge immediate expansion of Tribal Self-Governance express authority to 
the Department of Transportation, and eventually, in the form of a 
consolidated federal grant, to all federal agencies. And finally, I 
will ask that at some point in the near future you consider utilizing 
the Self-Governance Program as a vehicle for the federal government, 
through the Department of the Interior, to enter into a direct 
relationship with tribal governments in P.L. 83-280 states in the area 
of criminal law enforcement.
HISTORY
    Less than two months ago we celebrated an important, 20-year 
anniversary in federal Indian policy. It was on September 17th, 1987, 
that the late Chairman of the Mille Lacs Band, Art Gahbow, attended a 
meeting in Philadelphia with several other Tribal Chairmen, including 
Wendell Chino of the Mescalero Apache Tribe, and Roger Jourdain of the 
Red Lake Band of Chippewa.
    They met to discuss plans for the 200th Anniversary of the U.S. 
Constitution, and what this observation might mean for Indian tribes. 
It was at this meeting that the concept of what we today call, Tribal 
Self-Governance, was born. These visionary Tribal Leaders prepared a 
Tribal Self-Governance path for the rest of us to follow. It was built 
on six foundations insisted upon by Indian Tribes:
      First, that each federal agency deal with each Indian 
Tribe on a respectful, government-to-government basis.
      Second, that all federal agency decisions honor the fact 
that Indian Tribes, as the governments closest to those served, provide 
the best quality and most efficient services to Tribal members.
      Third, that federal law should allow Tribal government 
priorities, not federal priorities, to shape what is funded and done in 
Indian communities.
      Fourth, that federal agencies can and should rely on the 
fact that the elected leadership of Indian Tribes are, by definition, 
accountable to Tribal members.
      Fifth, that federal bureaucracies should be down-sized, 
reformed, and restructured into technical assistance resource centers 
that aid Tribal governments in meeting the needs of Tribal communities, 
with the resulting financial savings transferred to Tribal communities 
for program services.
      And sixth, no function, program, service or activity that 
is supposed to benefit an Indian Tribe should be kept out of the reach 
of any Indian Tribe seeking to take the money and do it for themselves.
    These six pillars of Tribal Self-Governance--government-to-
government relations, delegation of authority to Tribes, deference to 
Tribal priorities and program design, Tribal accountability, right-
sizing the federal bureaucracy, and no program or function off-limits--
have served well for the past 20 years. But as with all good ideas that 
have weathered the storms of time, there is room for improvement. And 
in some instances, there has been a creeping retreat, rather than 
steady progress, in implementing these principles. Which brings me to 
the need for H.R. 3994, the bill before the Committee today.
    But first, some Tribal Self-Governance history that is specific to 
the Mille Lacs Band of Ojibwe. My Tribe was one of the first ten tribes 
to be involved in the Self-Governance Demonstration Project in the late 
1980's, and in 1990 ours was the first Tribe to negotiate a Self-
Governance Compact with the Department of the Interior. We soon 
thereafter negotiated an agreement with the Indian Health Service 
(IHS). Since then, the project has grown to include more than 300 
tribes in BIA and/or IHS Tribal Self-Governance.
    I recall our first negotiation with two personal representatives of 
Interior Secretary Manuel Lujan sitting across the table from us in the 
double-wide trailer that then served as our tribal headquarters. We 
opened with prayer in our language and a tobacco pipe made its way 
around the table. The Mille Lacs Band set the negotiation agenda. We 
explained what the Band had to have in the way of an agreement. When we 
reached an impasse, we called our friends on Capitol Hill. Secretary 
Lujan's aides called him and came back to the table with agreement. 
Many terms were set in that initial negotiation year, all were founded 
on the six principles I just described.
    The Mille Lacs Band insisted upon, and got, respect from their 
federal counterparts in these negotiations. And the basic framework of 
that early agreement endures through to this day. But not without room 
for improvement. In fact, our nearly 17 years of experience with Tribal 
Self-Governance and the Department of the Interior tells us that we 
very much need H.R. 3994 enacted as soon as possible. Here's why.
WHY KEY PROVISIONS OF H.R. 3994 ARE NEEDED
    H.R. 3994 is the product of more than six years of discussion, 
drafting and negotiation between Tribal and Interior representatives. 
The bill before you reflects many compromises. In large part, that's 
attributable to the flexibility of Interior officials. But perhaps even 
more, it is due to the stamina of Tribal representatives. And our sense 
that we really need this bill.
    The overarching reason we need H.R. 3994 enacted is because, for 
six years now, the Mille Lacs Band, and many other Self-Governance 
Tribes, have had to operate under two sets of often conflicting rules. 
Ever since 2000, when the Congress enacted Title V to govern our Tribal 
Self-Governance operation of health programs funded by the IHS, the 
Mille Lacs Band has had to follow two different sets of procedures, 
meet two different sets of standards, and split its Self-Governance 
administration into two separate operations.
    Congress last reformed Title IV, governing our Interior-funded 
operations, in 1994. Informed by our experience, Congress improved upon 
Title IV when it wrote Title V to govern our IHS-funded operations in 
2000. But at that time Congress made no changes to Title IV. And so 
Self-Governance Tribes like the Mille Lacs Band have since then had to 
maintain different requirements and two sets of investments. Tribal 
Self-Governance is supposed to streamline Tribal operations and permit 
consolidation of Tribal effort. Instead, having two different laws, 
Title IV and Title V, has served to make Tribal administration more 
complex and difficult. H.R. 3994 would bring Title IV into conformity 
with Title V. This is long over due.
    What follows are some of the key provisions of H.R. 3994 that would 
bring Title IV into line with Title V, and thereby greatly facilitate 
more efficient Tribal administration at the Mille Lacs Band and allow 
our leadership to provide more services within the present constraints 
of limited federal funding.
    Clarify Inherent Federal Function. H.R. 3994 would for the first 
time narrowly and uniformly define by statute what is an inherent 
federal function that cannot be transferred to an Indian Tribe. Section 
401(8). Such a narrow and uniform definition will greatly streamline 
negotiations and result in a greater transfer of federal Indian funding 
to the local Tribal community level and assist federal officials in 
efficiently restructuring the federal administrative structure.
    Clearly Identify Tribal Share Funds. H.R. 3994 would add greater 
clarity to the definition of what is and is not a tribal share, and in 
combination with the narrow definition of an inherent federal function, 
greatly streamline negotiations and result in a greater transfer of 
federal funding to the local level. Section 401(11).
    Ban Unilateral Federal Changes to Agreements. H.R. 3994 would stop 
a practice that has reappeared in recent years of attempts by certain 
federal officials to make unilateral changes to Tribal Self-Governance 
agreements after they have been negotiated. Section 405(c). It would 
require the specific consent of a Self-Governance Tribe before any 
changes are made.
    Resume the Transfer of Central Office Functions to Tribes. A tribal 
share of all funds related to all functions, including those organized 
within the BIA Central Office, are to be made available to a requesting 
Self-Governance Tribe. Sections 405(b)(1) and 409(c). Tribal shares of 
Central Office functions were provided to some Self-Governance Tribes 
in the early to mid-1990's until the Administration collaborated with 
the Appropriations Committees and then-Senator Slade Gorton to stop 
this through an appropriations rider.
    Resume the Transfer of Office of Special Trustee Functions to 
Tribes. A tribal share of all funds related to all functions, including 
those organized within the Office of Special Trustee (OST), are to be 
made available to a requesting Self-Governance Tribe. Sections 
405(b)(1) and 409(c). Tribal shares of the OST were provided to some 
Self-Governance Tribes in the early to mid-1990's until the 
Administration moved some trust-management functions from BIA to OST 
and tried to claim they were beyond the negotiation authority of Self-
Governance Tribes.
    Transfer Non-BIA Functions to Tribes. Likewise to be made available 
to a requesting Self-Governance Tribe is a tribal share of funds 
related to all functions provided by non-BIA/OST offices of the 
Interior Department for the benefit of Indians because of their status 
as Indians or with respect to which Indian Tribes or individuals are 
the primary or significant beneficiaries. Section 405(b)(2). The 
Department has been reluctant to transfer significant authority or 
funding to Indian Tribes under the existing authority of Title IV, so 
further precision in this authority is included to encourage greater 
cooperation by the Department in response to Tribal negotiations.
    Streamline Negotiations With Final Offer Authority. One of the most 
important changes to Title IV in H.R. 3994 is in the ``final offer'' 
provisions that have worked so well to facilitate negotiations with IHS 
under Title V. Section 407(c). When negotiations reach an impasse, 
Section 407(c) would specific timeframes and standards by which the 
Department must respond to a Tribe's ``final offer''. Similar 
provisions in Title V have streamlined negotiations with IHS since 
2000.
    Make Uniform Burden of Proof Standards in Appeals. As in Title V, 
when negotiations break down, or other grounds arise for legal appeal 
by an Indian Tribe of a federal decision, H.R. 3994 would assign to the 
Department the burden of proof to demonstrate by clear and convincing 
evidence that its decision is validly made. Section 407(d). This 
approach has worked well with IHS since 2000. Having the same legal 
standard and procedure for Interior as IHS would facilitate Tribal 
administration.
    Expand Tribal Construction Authority. Where an Indian Tribe has 
hired or contracted with licensed professionals regarding health and 
safety considerations in the design and construction of a facility, 
H.R. 3994 would clarify that, as in Title V with the construction of 
clinics and hospitals with IHS funds, the responsibility and 
accountability for adherence with standards rests with the Indian Tribe 
and its professional certifications. Section 408(c). This approach will 
reduce the duplicative costs of federal engineering oversight while 
guaranteeing compliance with industry standards.
    Make Investment Standard Uniform for Titles IV and V. One advantage 
of current authority for advance lump sum funding is that an Indian 
Tribe can invest those funds until they must be spent during the 
program year. However, while hundreds of millions of IHS funds are 
annually invested by Indian Tribes under the ``prudent investment 
standard'' pursuant to Title V, the BIA has declined to allow Indian 
Tribes to similarly invest funds transferred to Indian Tribes under 
Title IV. As a result, Indian Tribes have had to maintain two separate 
investment portfolios, losing the advantages of a single and 
coordinated investment structure. H.R. 3994 would conform Title IV 
authority to Title V authority and permit an Indian Tribe to invest its 
Title IV advance funds using the prudent investment standard. Section 
409(j)(3).
    Expedite Regulation Waiver Requests. Tribal requests to waive 
certain regulatory requirements have often gone ignored in the past two 
decades. H.R. 3994 would resolve this in a manner similar to the one 
used in Title V, by applying specific timeframes and standards by which 
the Department must respond to a Tribe's request for waiver of a 
regulation. Section 410(b).
    Bring Unfettered Self-Governance Authority to Federal Indian Roads 
Programs. Ever since Congress amended SAFETEA-LU, the roads program, to 
authorize direct self-governance agreements between the Department of 
Transportation (DoT) and Self-Governance Tribes, the lack of precision 
in the statute has slowed its implementation. Accordingly, I and other 
Self-Governance Tribal leaders are asking that you add a provision to 
H.R. 3994, a new Section 419, which would state simply and effectively 
that the Secretary of Transportation shall enter into funding 
agreements under Title IV with any Tribe that elects to utilize the 
authority of Title IV to govern any funds made available to Indian 
tribes under SAFETEA-LU, and that the negotiation and implementation of 
each such funding agreement shall be governed by Title IV, as amended 
by H.R. 3994.

                        Proposed new Section 419

``SEC. 419 Applicability of the Act TO THE DEPARTMENT OF TRANSPORTATION
    (a) The Secretary of the Department of Transportation shall carry 
out a program within the Department of Transportation to be known as 
the Tribal Transportation Self-Governance Program.
    (b) Notwithstanding any other provision of law, the Secretary of 
Transportation shall enter into funding agreements under this title 
with any Tribe who elects to utilize the authority of this title to 
govern any funds made available to Indian tribes under the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (Pub. L. 109-59) or successor authorities.
    (c) Notwithstanding any other provision of law, the negotiation and 
implementation of each funding agreement entered into under this 
section shall be governed by the provisions of this title. ``

          Explanation of proposed new Section 419 to H.R. 3994

    The Safe, Accountable, Flexible, Efficient Transportation Equity 
Act: A Legacy for Users (SAFETEA-LU) authorized tribal governments to 
receive funding from and participate in a number of Department of 
Transportation (DOT) programs as direct beneficiaries without having 
the Bureau of Indian Affairs or state governments acting as 
intermediaries. For example, section 1119(g)(4) of SAFETEA-LU [23 
U.S.C. Sec. 202(d)(5)] provides for tribal governments to enter into 
contracts and agreements directly with the Secretary of Transportation 
to undertake transportation functions ``in accordance with the Self-
Determination and Education Assistance Act...'' (ISDEAA). Some DOT 
Federal Highway Administration (FHWA) officials have interpreted this 
``in accordance with'' language to somehow mean that FHWA-Tribe 
agreements under SAFETEA-LU are not ISDEAA agreements, and they have 
refused to include standard Title IV provisions in their agreements. 
This erroneous interpretation has sharply limited the number of FHWA-
Tribe agreements that have been executed, and has generated a great 
deal of confusion and disagreement over the scope and extent of the 
applicability of Title IV to those agreements. The proposed new Section 
419 to H.R. 3994 will fix these problems by establishing a Tribal 
Transportation Self-Governance Program within the DOT. It directs DOT, 
upon the request of an Indian tribe, to enter into funding agreements 
under Title IV for any programs and funding made available to tribes by 
SAFETEA-LU. This section makes clear that the negotiation and 
implementation of those funding agreements will be governed by Title 
IV. Section 419 would echo existing authority in SAFETEA-LU and clarify 
in Title IV itself that Title IV applies to these DOT funds and 
programs.
TRIBAL SELF-GOVERNANCE SUCCESSES
    My predecessors who led my Tribe imagined a future in which Mille 
Lacs Band members were politically empowered, self-determining, self-
governing, and self-sufficient. They imagined a world in which the 
Mille Lacs Band not only was able to take care of its members, but also 
to take care of future generations of Band members.
    My generation of leaders must still look to our imagination for 
such a world. Our world today remains beset by hurdles thrown on our 
path, some by petty federal bureaucracies, some by county officials who 
attack our rights, and some by a neglectful and distracted Congress 
(which of course would be obviated by prompt enactment of H.R. 3994, a 
move that would go a long way towards making our imagined world a 
reality).
    Nevertheless, our imagination has begun to pay off:
      Over 300 Indian Tribes now participate in some form of 
Tribal Self-Governance. With enactment of H.R. 3994, and the greater 
administrative efficiencies that it will bring, I am certain that 
number will increase.
      For the Mille Lacs Band, and for many other Indian 
Tribes, the last decade or so has seen our Tribal members choosing to 
return home to their Indian communities and Reservations. There are 
more and more jobs available in Indian Country. There is more and more 
meaningful work here than was available 20 years ago. In utilizing our 
resources, we are always striving to protect our way of life, our 
culture, our ceremonies, and our language. Tribal Self-Governance has 
been the main cause of this, as we govern ourselves according to our 
own Tribal priorities.
      One benefit of Self-Governance is that many Indian people 
who previously served as federal employees have now come back to offer 
their training and expertise to their own tribal communities. As our 
Band government and enterprise workforce grows, I imagine a time when 
the Band reciprocates by sending Band-trained experts to serve in 
federal agency positions, under a reverse-Intergovernmental Personnel 
Act or reverse-IPA program.
      Self-Governance has enhanced our ability to govern. Our 
sovereignty is inherent, but our ability to govern ourselves properly 
was difficult when permission was required of the federal government 
for our every fiscal move. The enactment of Title IV changed that. We 
enact budgets. We determine program priorities. We administer services. 
We manage programs. We recruit, hire and fire a Tribal workforce. We 
raise Tribal revenue from a variety enterprises and activities. We are 
responsible and accountable to our Band membership. Much of this can be 
traced to our assumption of federally-funded programs, functions, 
services and activities under Tribal Self-Governance.
IMMEDIATE ISSUE ON LAW ENFORCEMENT
    There is an additional issue that has come up only in the last few 
days, and that is the need for a federal law that would authorize, 
perhaps on a demonstration or pilot basis, a Self-Governance Tribe like 
the Mille Lacs Band to utilize an ``escape valve'' to resolve conflicts 
in the provision of law enforcement services in certain emergency 
situations where public safety requires it.
    The Mille Lacs Band provides significant law enforcement services 
on our Reservation. We spend approximately $2 million a year on law 
enforcement activities and employ 19 full-time tribal police officers 
who are certified under both State and Tribal law. These officers have 
exercised primary responsibility for policing the portions of the 
Reservation in which most Band members live, and routinely provide 
assistance to the County Sheriff's Office as well as the police offices 
in local towns.
    The State of Minnesota also has law enforcement jurisdiction on our 
Reservation, under a federal statute known as Public Law 83-280. In 
1991 and again in 1998, we entered into cooperative agreements with 
Mille Lacs County to coordinate the provision of law enforcement 
services on the Reservation.
    Less than a week ago, we ended the agreement with Mille Lacs 
County. While we have continuing law enforcement and other agreements 
with neighboring counties, we were unable to continue the agreement 
with Mille Lacs County because of the rise in hostile actions by County 
leadership directed toward Band members, Band law enforcement officials 
and Band Government.
    Under our agreements with the County, our officers had referred 
many criminal cases to the County Attorney for prosecution. Typically, 
we referred cases involving non-Indian defendants, over whom we have no 
prosecutorial jurisdiction, or Indian defendants when the seriousness 
of the charge warranted greater penalties that could be imposed under 
State law.
    Recently, the relationship between the County and the Band 
deteriorated. The County Attorney insisted that we refer every case 
handled by our law enforcement officers to the County for prosecution, 
even when those cases involved only Band member defendants suspected of 
violating Band laws. The County Attorney also insisted that our 
officers not confer with our attorneys before deciding which cases to 
refer, and demanded that our attorneys not communicate with Band 
officers about such matters.
    These extraordinary demands apparently stemmed from the County 
Attorney's challenge to the existence of the Mille Lacs Reservation. In 
a memo to County employees last year, the County Attorney ordered all 
employees to stop referring to Indian land as ``reservation'' land and 
to purge County files of all references to the Reservation. She has 
since prosecuted cases against Band members for ``civil/regulatory'' 
violations on the Reservation, over which the State has no jurisdiction 
under Public Law 83-280, on the theory that there is no Mille Lacs 
Reservation.
    In addition, her office caused an arrest warrant to be issued for a 
Band child who had been the victim of a crime, on a failure to appear 
charge. This led to the child's arrest, incarceration overnight, and 
appearance in court in handcuffs, leg shackles and an orange jail 
jumpsuit. The County Attorney has defended and refused to apologize for 
this treatment of a child crime victim.
    We will continue to provide law enforcement services on our 
Reservation, notwithstanding the end of our Agreement with the County. 
However, the County Attorney is now threatening to sue to challenge our 
officers' law enforcement credentials, and may take other actions that 
hinder cooperation among law enforcement agencies on the Reservation.
    Public Law 83-280 has a provision for ``retrocession'' of state 
jurisdiction to the federal government, but it requires the consent of 
the state. University of Minnesota Law Professor Kevin Washburn 
testified several months ago about the need for an escape valve in 
situations like ours. When retrocession of P.L. 83-280 jurisdiction is 
not an option, the federal government should find a way to enter into a 
direct relationship with an Indian Tribe for purposes of law 
enforcement. We would like to work with the Committee to develop such 
authority and make it part of Title IV. I will be providing your staff 
with a copy of Professor Washburn's statement.
    A Tribal option for retrocession, that is, a choice, would further 
Tribal self-government by putting key law enforcement questions in the 
hands of the Tribe and force the state to be responsive to the Tribe if 
it wishes to keep the Tribe as a partner. It would also further public 
safety because it would make the government accountable to the 
community it is supposed to be serving. If a Reservation community 
believes that the state is doing a good job, then the state can 
continue. But if the state is doing a poor job, then it can install a 
federal/Tribal system in which Tribal officials will be forced to 
exercise greater accountability for public safety.
WHERE WE MUST GO AFTER H.R. 3994 IS ENACTED
    About twelve years ago, the Mille Lacs Band sat down with the 
Clinton Administration and looked at whether we could move Tribal Self-
Governance to the next level. We sought to consolidate into one single 
agreement all federal dollars the Band was eligible to receive. This 
would bring us closer to restoring the full, government-to-government 
relationship that our treaties once provided. To the Mille Lacs Band, 
this is a logical progression of Self-Governance and we are very 
interested in pursuing this idea.
    There is no sound policy reason why Tribal Self-Governance must be 
limited to the BIA and IHS and Tribal roads programs. Tribes receive 
funds aimed at Tribal communities from many different federal agencies: 
housing and community development grant funds from HUD, rural 
development grants from USDA, environmental program funds from EPA, 
child and family grant funds from HHS's Administration for Children and 
Families, addiction and mental health funds from HHS's Substance Abuse 
and Mental Health Services Administration, education grants from DoEd, 
energy development funds from DoE, border security funds from DHS, and 
on and on.
    Just imagine the creativity and efficiencies that would be 
unleashed if Tribal governments would be able to consolidate all these 
sources of funding into one Tribal Self-Governance agreement and 
administer the funds under one set of rules that respected Tribal 
priorities, Tribal accountability, and Tribal Self-Governance.
CONCLUSION
    Title IV is in dire need of a major overhaul to bring it into 
conformity with Title V. Without prompt enactment of H.R. 3994, Tribes 
like the Mille Lacs Band will be forced to waste time, effort and money 
maintaining duplicative and separate Tribal Self-Governance structures 
and programs. Reforming Title IV, as proposed in H.R. 3994, will bring 
great efficiencies to our Tribal administrative efforts.
    I also urge you to join with me in imagining into reality one 
single Tribal Self-Governance agreement for all federal funding.
    But first, enact H.R. 3994 and get Title IV caught up to Title V.
    If you have any questions, please contact me at (320) 532-7486. You 
may also contact Tadd Johnson, the Mille Lacs Band's Special Counsel on 
Government Affairs, at (320) 630-2692.
                                 ______
                                 

  STATEMENT OF THE HONORABLE J. MICHAEL CHAVARRIA, GOVERNOR, 
                     PUEBLO OF SANTA CLARA

    Mr. Chavarria. Good morning. Un Bi Agin Di, Un Sengi Thamu. 
Out of respect and good morning. Greetings in my Tewa language. 
Good morning, Chairman, and members of the Committee.
    Out of respect I come before you to testify on H.R. 3994 
introduced by Congressman Boren and others which proposes to 
amend the Indian Self-Determination Education Act by providing 
further self-governance by Indian tribes and nations and for 
other purposes, which bill is also known as Department of 
Interior Tribal Self-Governance Act of 2007.
    My name is Joseph Michael Chavarria, I am the Governor of 
Santa Clara Pueblo located in land of enchantment in the great 
State of New Mexico. Before I proceed, Chairman, may I 
respectfully ask that I say a few words in my Tewa language out 
of respect.
    [Witness spoke a prayer in Tewa language.]
    Mr. Chavarria. In my prayer, I asked the Creator to look 
down upon us today to give us the strength, the courage and 
wisdom that are needed, and to give each and every one of us 
insight to examine how the enactment of H.R. 3994 will impact 
tribes, nations and pueblos.
    As a tribal leader in this day and age I can tell you that 
challenges still linger in the midst of our many successes. My 
pueblo has found the collaboration and partnership with 
Federal, state and local agencies assist greatly in meeting 
those challenges.
    As a productive pueblo we have created opportunities 
through self-governance compacts, funding agreements and 
through agreements with the state, the Federal and local 
agencies all of which assist in greatly enhancing and 
protecting our natural resources including our people, timber, 
water, which are all necessary for the continuance of our life 
here on this Earth.
    If H.R. 3994 is enacted the Title IV amendments will allow 
our pueblo and other tribes and pueblos to expand self-
governance operations within and outside the BIA, increase our 
Federal program responsibilities, reduce the number of 
Federally operated programs and reduce the obstacles that exist 
to our self-governance operations.
    Santa Clara Pueblo has experienced many benefits through 
self-governance, but has also been met with resistance from the 
BIA to the pueblos assuming greater self-governance.
    For example, during our recent forestry compact 
negotiations we expanded a significant amount of time, and 
effort and resources in order to get from the BIA accurate 
descriptions of our program services, tribal share formulas, 
factual data using those formulas, inherent Federal functions 
and funds available for those tribal funds, all of which should 
have been made readily available to us.
    However, when the information was made available to us it 
was usually the day before our negotiations and often contained 
incorrect program descriptions and inaccurate data regarding 
our pueblo. The amendment to Section 401 of this bill will help 
by defining tribal share and inherent Federal functions which 
would make more information and more money available to tribes.
    Section 405[c] of H.R. 3994 would also prohibit the 
Secretary from making unilateral changes to funding agreements. 
This prohibition addresses a very difficult problem that my 
pueblo has had dealing with the Indian Reservation Rules 
program.
    During this time my pueblo has struggled to obtain BIA 
signatures on an IRR addendum, a document that outlines the 
conditions and responsibilities for Santa Clara Pueblo to take 
over road construction activities on our reservation. Time and 
time again my pueblo negotiated and submitted an IRR addendum 
that was based on the latest BIA model only to have each 
addendum rejected or left unsigned at central office.
    Recently central office made unilateral changes to the 
latest IRR addendum we submitted, changes that weakened and 
watered down our agreement. Entire sections and provisions from 
the negotiated addendum were revised or deleted taking all good 
faith out of our negotiations.
    Section 405[c] would prohibit such unilateral actions by 
central office. I respectfully suggest that H.R. 3994 would 
even help more if it included provisions that would enable 
self-governance tribes to directly negotiate future road 
construction agreements with the Department of Transportation 
Federal Highway Administration using the Indian self-
determination Title IV rights and protections.
    This bill contains improvements over current Title IV law 
that allow my pueblo to continue to progress as a government 
and as a people while keeping us accountable for our use of 
Federal funds.
    Such improvements include the subsequent funding agreement 
provisions and restrictions against unilateral changes in 
Section 405, a timely advanced payments provision and 
restrictions against Department of Interior withholding funds 
in Section 409, and for new tribes the authorization of 
planning and negotiation grants, shortfall funds and a formula 
for central office shares.
    We thank you for these and other improvements that are 
contained within the bill, and I know my pueblo's self-
governance program will greatly benefit. Another important 
section for Santa Clara Pueblo is Section 405 where it includes 
provisions regarding non-BIA programs.
    This will merely give my pueblo the opportunity to contact 
Department of Interior agencies that deal with our pueblo, 
people, land, water and wildlife, to begin the dialogue with 
the U.S. Fish and Wildlife Service, National Park Service, U.S. 
Geological Survey.
    If H.R. 3994 is enacted, Santa Clara could negotiate with 
the U.S. Geological Survey (USGS) to take responsibility for 
some portion of completing the cadastral surveys that are much 
needed right now on reservation lands under conditions that 
include verification that survey standards are being met.
    It would also give Santa Clara Pueblo an opportunity to 
negotiate a Title IV agreement with the U.S. Fish and Wildlife 
Service to reduce poaching, provide a joint enforcement of the 
pueblo's wildlife codes, improve our ability to sustain 
wildlife and improve all live habitat on my pueblo's lands, 
lakes and rivers.
    If enacted, H.R. 3994 will give all tribes, pueblos and 
nations the opportunity to determine their destiny by utilizing 
the Self-Determination Education Assistance Act to further 
accomplish self-governance in the future. Thank you for this 
opportunity to testify before you, Chairman, and members of the 
House Natural Resources Committee.
    Santa Clara Pueblo has also submitted written testimony to 
the Committee that expresses the pueblo's support of H.R. 3994 
in more detail. Kun De La Ha. Thank you very much, sir.
    Mr. Rahall. Thank you. Mr. Stevens, we will hear from you, 
then recess for the pending roll call vote on the Floor, come 
back for questions.I21[The prepared statement of Mr. Chavarria 
follows:]

             Statement of J. Michael Chavarria, Governor, 
                         Pueblo of Santa Clara

    Un Bi Agin Di, Un Sengi Thamu:
    Out of Respect and Good Morning. Greetings in my Tewa language.
    Good Morning Chairman and members of the Committee. Out of respect 
I come before you to testify on H.R. 3994 (introduced by Congressman 
Boren and others), which proposes to amend the Indian Self-
Determination and Education Assistance Act by providing further self-
governance by Indian Tribes and for other purposes, which bill is also 
known as the ``Department of Interior Tribal Self-Governance Act of 
2007.''
    My name is Joseph Michael Chavarria. I am the Governor of Santa 
Clara Pueblo located in the Land of Enchantment in the Great State of 
New Mexico. Before I proceed may I respectfully ask that I say a few 
words in my Tewa Language.
    In my prayer I have asked the Creator to look down upon us today to 
give us the strength, courage and wisdom that are needed and to give 
each and everyone of us the insight to examine how the enactment of 
H.R. 3994 will impact Tribes, Nations, and Pueblos.
    As a Tribal Leader in this day and age, I can tell you that 
challenges still linger in the midst of our many successes. My Pueblo 
has found that collaboration and partnerships with federal, state, and 
local agencies assist greatly in meeting those challenges. As a 
proactive Pueblo, we have created opportunities through Self-Governance 
Compacts and Funding Agreements and through agreements with federal, 
state, and local agencies, all of which assist greatly in enhancing and 
protecting our natural resources, including our People, timber, 
wildlife, and water, which are all necessary for the continuance of our 
life here on this earth.
    If H.R. 3994 is enacted, the Title IV amendments would allow our 
Pueblo and other Tribes and Pueblos to expand Self-Governance 
operations within and outside the BIA, increase our federal program 
responsibilities and reduce the number of federally operated programs, 
and reduce the obstacles that exist to our Self-Governance operations.
    For instance, Section 401 of this bill proposes to define the terms 
``tribal share'' and ``inherent Federal function,'' which are not 
currently defined in Title IV. It has been our experience that this 
lack of definition of these terms has resulted in an overbroad 
determination by the Bureau of Indian Affairs of the programs, 
services, functions and activities (PSFA) that are ``inherent Federal 
functions.'' As a result, less money is made available for tribal 
shares. These definitions would make it clear that Congress intended 
for tribes to assume all PSFAs except for those that cannot legally be 
delegated to Indian tribes. Accordingly, more tribal share funds would 
be available to Santa Clara and other Pueblos and Tribes who want to 
take responsibility for federally operated programs.
    In the last few years, as our Pueblo has attempted to expand our 
Self-Governance, we have been met with resistance from the BIA. 
Forestry Management provides a good example. We had to expend a 
significant amount of effort and resources in order to get from the BIA 
accurate descriptions of program services, tribal share formulas, 
factual data used in the formulas, inherent Federal functions, and 
funds available for tribal shares--all of which should have been made 
readily available to us.
    When the BIA finally provided the necessary information to us, it 
was often only provided the day before our negotiations and often 
contained incorrect program descriptions and inaccurate data regarding 
our Pueblo. Funding for inherent Federal functions was often so 
inflated that less money was made available for all 24 tribes in our 
Region or for the eight Pueblos in our Agency than was allocated for 
federal positions (See Example A for Northern Pueblo Agency funding, 
attached hereto). Additionally, the tribal shares identified did not 
always add up to 100% of what little funding was being made available 
to tribes. When we questioned the data, some federal officials became 
very defensive. Others just shrugged their shoulders and pointed out 
that correcting the errors would take more time than was available for 
negotiations and getting signatures on the agreement. And actually, 
they were right. With inherent federal funding so inflated that tribal 
shares were minimal and the threat of an unsigned agreement (meaning 
the Pueblo would receive no funding for its next year), the obstacles 
often seemed insurmountable.
    We respectfully suggest that H.R. 3994 would help even more if it 
included provisions that would require DOI agencies to limit their 
residual funding at all levels to the minimal amounts necessary for 
carrying out inherent Federal functions as defined in these amendments, 
to negotiate tribal share formulas with Regional tribes at least once 
every three years, and to use tribal data in funding formulas that is 
updated at least bi-annually.
    Section 405 proposes that, under prescribed circumstances, a 
funding agreement will remain in effect when negotiations have not been 
concluded as to a new funding agreement, and, thereby, fund the tribe 
in the successor year while negotiations continue regarding unresolved 
issues. This amendment would level the playing field between the 
negotiating parties, as tribes would no longer be hemmed in by the 
threat of losing funding if negotiations regarding a new funding 
agreement are stalled.
    Section 405 also prohibits the Secretary from making unilateral 
changes to funding agreements. This prohibition addresses a very 
difficult problem that our Pueblo has had with the Indian Reservation 
Roads program for the last two years. During that time, our Pueblo 
struggled to obtain BIA signatures on an IRR Addendum, a document that 
outlines the conditions and responsibilities for Santa Clara to take 
over roads construction on our Reservation. Time and time again, our 
Pueblo negotiated and submitted an IRR Addendum that was based on the 
latest ``BIA model,'' only to have each Addendum rejected or just left 
unsigned in the Central Office. Last summer, we again negotiated tribal 
and BIA responsibilities and terms and conditions with the Regional 
Roads staff and the Regional Director and submitted our IRR Addendum 
for Central Office signature. As before, the document was not signed. 
Worse, the Central Office made unilateral changes to it--changes that 
weakened and watered down the IRR Agreement. Entire sections and 
provisions from the negotiated Addendum were revised or deleted. There 
was no communication with our Pueblo about the changes. These actions 
by the Central Office took all ``good faith'' out of our negotiations; 
the changes appeared to be dictates from an unseen bureaucratic figure 
who never contacted or met with us or attended our negotiation 
sessions.
    Section 405 in H.R. 3994 would prohibit such unilateral actions by 
the Central Office. And, we respectfully suggest that H.R. 3994 would 
help even more if it included provisions that would enable Self-
Governance tribes to directly negotiate future roads construction 
agreements with the Department of Transportation Federal Highway 
Administration using ISDEAA Title IV rights and protections.
    If H.R. 3994 is enacted, the Title IV amendments would make BIA 
Self-Governance (Title IV) much more like Indian Health Service Self-
Governance (Title V). This would greatly benefit the Pueblo since Title 
V has provisions that address the issues my Pueblo has struggled with 
before and will likely continue to face in the future, such as federal 
officials who resisted our desire to take responsibility for managing 
our forests, federal rules and requirements that restricted our ability 
to provide timely and flexible services to our people such as in higher 
education and social services, and delays in making funds available 
which then slowed down our ability to both provide services and to 
strengthen our federally funded programs in areas such as law 
enforcement.
    The amendments would also benefit other New Mexico Pueblos and 
Tribes and would encourage them to enter into Self-Governance 
agreements. For several years, the Pueblo of Santa Clara has provided 
Self-Governance information to other New Mexico Pueblos and Tribes to 
try to answer their questions and increase their interest in Self-
Governance. This has been difficult, though, because other tribes 
rightfully point out that tribal share funding is minimal, inherent 
Federal functions use up most Regional Office and many Agency Office 
dollars, accurate tribal share and formula information is difficult to 
get, BIA planning and negotiation grants are no longer available, 
shortfall funding is no longer available, and there are no longer any 
Central Office shares. If H.R. 3994 is enacted, these obstacles will be 
reduced or overcome. The Section 405 improvements should make more 
tribal share information and funding available, Section 413 calls for 
planning and negotiation grants to help new tribes research and prepare 
for Self-Governance, Section 413 also calls for shortfall funding which 
helps during the transition time when federal funding is being 
transferred from Regional and Agency offices to tribes, and Central 
Office shares are again required under H.R. 3994. In total, these Title 
IV amendments will make it easier and more beneficial for other 
Pueblos, Nations, and Tribes to prepare for and participate in 
Department of Interior Self-Governance.
    From our experience in Self-Governance, we see the ISDEAA's 
strength. Self-Governance has transferred much responsibility and 
funding from federal agencies to the participating tribes. Self-
Governance has authorized tribal governments to flexibly use program 
funding to provide more and better services to their people. In a 
recent negotiation, we were told by BIA officials that our tribe would 
actually receive fewer services if we returned funding for a difficult 
program that we had taken over and that we were doing more in this 
program than could the Bureau. These amendments will allow us to 
continue to use the law's strength and will reduce the obstacles in our 
way.
    This bill contains improvements over current Title IV law that will 
allow our Pueblo to continue to progress as a government and as a 
People while keeping us accountable for our use of federal funds. This 
bill includes many provisions that were enacted in the Title V 
legislation with the Indian Health Service but that have not been 
included in agreements under Title IV with the Bureau of Indian 
Affairs. Such improvements include the subsequent funding agreement 
provisions and restrictions against unilateral changes in section 405, 
the timely advance payments provisions and restrictions against DOI 
withholding funds in section 409, and, for new tribes, the 
authorization of planning and negotiation grants, shortfall funds, and 
a formula for Central Office tribal shares. We thank you for these and 
other improvements that are in the bill and we know that our Pueblo's 
Self-Governance program will benefit.
    This bill also will open new areas for our Pueblo that could assist 
us in the future. Because our BIA Self-Governance has been very 
successful, we are interested in reaching similar agreements with the 
Department of Energy, the U.S. Forest Service, and other federal 
agencies that regularly interact with our tribal government. The 
section 405(b) provisions regarding non-BIA programs will provide 
immediate opportunities to contact Department of the Interior agencies 
that deal with our land, water, and wildlife and with the U.S. National 
Park Service regarding nearby Bandelier National Monument. Section 
405(b) gives a structured way for the Pueblo to assume responsibility 
and funding and to coordinate services with those federal programs that 
affect our resources. For instance, once H.R. 3994 is enacted, Santa 
Clara could negotiate an agreement with the U.S. Geological Survey to 
take responsibility for some portion of completing the cadastral 
surveys that are needed right now on Reservation lands under conditions 
that include verification that survey standards are met. And the Pueblo 
would like to negotiate a Title IV agreement with the U.S. Fish and 
Wildlife Service to reduce poaching, provide for joint enforcement of 
the Pueblo's game codes, and improve our ability to sustain wildlife 
and improve wildlife habitat on Pueblo lands, lakes, and rivers.
    As a Pueblo, we are not rich or wealthy with dollars; however, we 
are rich and wealthy in our Culture, Traditions and Language. Today's 
challenge of the federal dollar dwindling on a yearly basis has forced 
many tribes to take on a new animal--economic development. In order to 
provide necessary services to our people that were supposed to be 
provided by the federal government we have undertaken many critical 
service programs such as Social Services, Tribal Courts, Law 
Enforcement, Forestry, Child Welfare Assistance, Realty, Community 
Health Representatives, Head Start, Senior Citizen Programs and have 
provided supplemental funding to these programs in the amount close to 
one million dollars annually. If not required to fill gaps in the 
federal funding, these supplemental tribal funds could have been used 
to create an endowment fund for scholarships to send our children to 
any college they may want to attend, to start new businesses, or to 
provide assisted living for our elders. These funds could have also 
assisted the Pueblo in providing health care insurance to each and 
every tribal member, since the critical services at the Indian Health 
Services are being drastically eliminated at a steady and alarming 
rate. Why? Because of lack of funding.
    If enacted, H.R. 3994 will give all Tribes, Pueblos and Nations the 
opportunity to determine their destiny by utilizing the Self-
Determination and Education Assistance Act to accomplish further Self-
Governance in the future.
    Thank you for this opportunity to testify before you, Chairman and 
members of the House Natural Resources Committee. Kunda Wo' Ha'
Example A --
    Santa Clara compacted Forest Management into Self-Governance in 
2005 and has experienced significant hardships acquiring appropriate 
funding amounts and receiving correct information from the BIA. Due to 
over-inflated residual amounts, the managing BIA Agency is receiving 
much more money than Santa Clara to manage much less commercial forest 
land (commercial land is the BIA's own benchmark measure for 
determining Forest Management funding). While Santa Clara owns 74% of 
the forests in its Agency, 1 it is only receiving 28% of the 
total available Agency program budget to manage this important 
resource. 2 In addition to losing most money to residual BIA 
budgets, the Pueblo has also been shorted by the BIA's refusal to use 
our current forested acres in the appropriate funding formulas even 
though these acres are in trust status and are incorporated into our 
BIA-approved Forest Management Plan. These problems and holdups are 
severely impacting the state of our forests and precious ecosystems. 
These BIA tactics need to be addressed to give Tribes the ability to 
adequately manage their resources before their forests are lost to 
catastrophic wildfire and insect/disease outbreaks. I urge that this 
Committee strongly consider these problems and ultimately make these 
BIA agencies more accountable for successfully negotiating Self-
Governance programs such as Forest Management and using accurate 
figures and reasonable residual amounts.
---------------------------------------------------------------------------
    \1\ Information from material provided by BIA in its 2008 Forest 
Development Funding Tables. SCP has 21,440 commercial timber forest 
acres, while the Northern Pueblo Agency is responsible for a total of 
29,051 commercial timber forest acres.
    \2\ Information from material provided by BIA in its 2008 Forest 
Management Funding Tables. SCP is to receive $80,106 out of a total NPA 
budget of $280,976, which is 28%.
---------------------------------------------------------------------------
                                 ______
                                 

   STATEMENT OF BEN STEVENS, EXECUTIVE DIRECTOR, COUNCIL OF 
                 ATHABASCAN TRIBAL GOVERNMENTS

    Mr. Stevens. Thank you, Mr. Chairman, members of the 
Committee. My name is Ben Stevens, I work with the folks at the 
Council of Athabascan Tribal Governments, CATG, as the 
Executive Director. My organization and the 10 tribes that we 
represent strongly support H.R. 3994 as it will expand 
opportunities for tribes and tribal organizations to enter into 
Title IV agreements with Department of Interior agencies other 
than the BIA.
    My testimony focuses on this aspect of the bill because 
CATG has had instructive experiences with two such agencies, 
one successful and productive and one not so successful. First, 
let me tell you a little bit about who we are. CATG is an 
Alaskan Native nonprofit organization created in 1985 by a 
consortium of 10 tribal governments in the Yukon Flats region 
of interior Alaska.
    The traditional homelands of CATG's tribes include the 
entire Yukon Flats National Wildlife Refuge and portions of the 
Arctic National Wildlife Refuge. Since time memorial our tribal 
governments have managed these lands and resources in this 
region.
    CATG has been involved in self-governance since 1999 when 
it became a cosigner of the Alaska Tribal Health Compact and 
negotiated its first self-governance compact and funding 
agreement with the BIA under Title IV. CATG has since been 
recognized by researchers from the Kennedy School of 
Government, Harvard, as an example of a successful organization 
promoting and implementing Alaska tribal self-governance.
    The most valuable resource our tribes and our members have 
is the land on which both the traditional economy and the 
culture is based. Most of the land in our tribe's traditional 
homeland is now considered Federal public lands under the 
jurisdiction of the U.S. Fish and Wildlife Service and the BLM, 
the Bureau of Land management.
    Today, I will tell you two stories about CATG's attempts to 
participate in the management of these lands. Both hold lessons 
on the potential of self-governance if the current bill is 
enacted. First, a success story. In 2004, CATG and the U.S. 
Fish and Wildlife Service entered a funding agreement under 
which CATG was to carry out certain programs related to the 
Yukon Flats National Wildlife Refuge.
    These included subsistence harvest data collection, moose 
population counts, environmental education and outreach, 
logistics and maintenance activities. This was the first Title 
IV agreement that the U.S. Fish and Wildlife Service entered 
with a tribal entity, and it did not come easy. At first, CATG 
approached the U.S. Fish and Wildlife Service with a Title I 
proposal.
    That was rejected because the refuge does not benefit 
Alaska natives solely but rather a broader public. CATG then 
approached them with a Title IV agreement which would allow, 
but does not require, non-BIA agencies to compact activities of 
special geographic historical or cultural significance to the 
participating tribe requesting the compact.
    Because this provision is purely discretionary the Service 
could have walked away at any time making negotiations 
extremely difficult. Through hard work, though, and a lot of 
blind trust we forged an agreement that has benefitted both the 
Federal and tribal interests.
    Instead of wasting Federal dollars and putting resources at 
risk as the nay sayers predicted we found improved management 
and stewardship of the tremendous resources within the refuge. 
In 2006, the refuge manager submitted a letter in support of 
CATG and Harvard's Honoring Nations program endorsing CATG as 
an outstanding example of tribal governance.
    Recently, officials from the U.S. Fish and Wildlife 
Service's headquarters here in D.C. traveled up to the refuge 
to see for themselves the successes reported by the Alaska 
region. They were impressed. They not only expressed interest 
in continuing our relationship but hoped to develop similar 
types of strategic partnerships in other areas of the country.
    Unfortunately, my second story is not much of a success. It 
illustrates that our success is the exception rather than the 
rule. In 2005, CATG sent the BLM a letter requesting to begin 
negotiations for fire related activities up in the region. The 
first meetings were encouraging. The BLM had heard of our 
successes with the refuge and endorsed the concept of 
collaborative working relationships.
    However, when it came time to identify the funding directly 
associated with activities the BLM rejected CATG's proposed 
administrative budget. CATG had no negotiating leverage under 
the current Title IV as BLM kept reminding CATG that the law 
allowed but did not require them to enter into agreement.
    Ultimately, CATG settled for an agreement with a 
drastically reduced scope of work, one that was whittled down 
in the subsequent year, and this year we haven't even heard 
from them yet.
    Mr. Rahall. Mr. Stevens, I am sorry. We are going to recess 
now for a roll call vote. We will come back and hear the rest 
of your testimony as well as questions. The Chair would like to 
note that Mr. Cason, Assistant Deputy Secretary, has remained 
with us for the testimony of the witnesses, and I am sure they 
appreciate and I know the Committee appreciates his being with 
us during this second panel as well. The Committee will stand 
in recess for 15 minutes.
    [Whereupon, at 11:08 a.m., the Committee recessed, to 
reconvene at 11:23 a.m., this same day, Thursday, November 8, 
2007.]
    Mr. Rahall. The meeting is reconvened. Mr. Stevens, you may 
begin your testimony.
    Mr. Stevens. Thank you, Mr. Chairman. I was at a point 
where I was going to say that the example that we have 
experienced with the Bureau of Land Management is a story that 
illustrates a simple fact about the current Title IV, the 
discretionary provision that authorizes non-BIA agencies to 
work with tribes, does not work.
    By contrast, the provisions in H.R. 3994 would have changed 
the entire dynamic in the discussions between CATG and BLM. The 
new law would require non-BIA agencies to negotiate funding 
agreements for programs for which Indian tribes or Indians are 
primary or significant beneficiaries. The agency could not 
simply walk away from CATG's proposal to assist in the 
management of those traditional lands.
    Moreover, H.R. 3994 would add crucial timing provisions to 
prevent agencies from dragging out negotiations indefinitely 
which BLM has done. CATG's experience clearly illustrates what 
self-governance can accomplish for tribes and for the public 
and what obstacles remain in the current law.
    We respectfully request the Committee's support for H.R. 
3994 so that more tribes and more bureaus within Interior can 
benefit from the self-governance program in a way that CATG and 
the Fish and Wildlife Service have benefitted from their 
partnership in the Yukon Flats National Wildlife Refuge. Thank 
you.
    [The prepared statement of Mr. Stevens follows:]

             Statement of Ben Stevens, Executive Director, 
                Council of Athabascan Tribal Governments

    Good morning. My name is Ben Stevens, and I am the Executive 
Director of the Council of Athabascan Tribal Governments (CATG). My 
organization and the ten tribal governments it represents strongly 
support H.R. 3994, which would greatly enhance the opportunities for 
the Alaska Native Villages in our region to exercise their self-
governance rights.
    My testimony focuses on Title IV agreements with Department of the 
Interior agencies other than the Bureau of Indian Affairs (BIA). Before 
addressing this critical issue, however, let me briefly describe who we 
are.
CATG and Its History of Self-Governance
    CATG is an Alaska Native non-profit organization created in 1985 by 
a consortium of ten Tribes in the Yukon Flats region of the Interior of 
Alaska. The traditional homelands of CATG's tribes comprise a 55,000 
square mile region extending from the White Mountains in the South to 
the Brooks Range in the north, and from Rampart, downriver of the 
Trans-Alaska Pipeline east to the Canadian border.
    The purpose of CATG is to provide essential services to the member 
villages, such as natural resource management activities, health care 
and educational services, and pursuit of economic development 
opportunities. The region of CATG encompasses a large amount of federal 
public lands, including the entire Yukon Flats National Wildlife Refuge 
(YFNWR), and portions of the Arctic National Wildlife Refuge. Since 
time immemorial, the tribal governments of CATG have managed the lands 
and resources in the region.
    CATG has been involved in self-governance since 1999, when it 
became a co-signer of the Alaska Tribal Health Compact and began 
carrying out Indian Health Service (IHS) programs in the region. That 
same year, CATG negotiated its first self-governance compact and 
funding agreement with the Bureau of Indian Affairs (BIA) under Title 
IV of the Indian Self-Determination and Education Assistance Act 
(ISDEAA). CATG has been cited as a model of what the ISDEAA was 
intended to accomplish--and what Alaska tribal organizations have 
accomplished in terms of effective self-governance and service 
delivery. Researchers from the Kennedy School of Government at Harvard 
University summarized CATG's accomplishments as follows:
        CATG has been successful at running health, natural resources, 
        and early childhood education programs, has helped to prevent 
        service delivery jobs--badly needed in villages characterized 
        by high unemployment--from migrating to Fairbanks, has expanded 
        local management capacities, has served as a resource to local 
        governments, and has engaged local citizens in generating their 
        own solutions to problems. 1
---------------------------------------------------------------------------
    \1\ Stephen Cornell & Joseph P. Kalt, Alaska Native Self-
Government: What Works? at 7 (Harvard Project on American Indian 
Economic Development, 2003).
---------------------------------------------------------------------------
    Because carrying out governmental programs consistent with self-
governance principles worked so well for IHS and BIA programs and 
activities, CATG sought to expand self-governance into an area of 
central importance to its member Villages: management of the land and 
resources that provide the subsistence base for members of all of the 
tribal governments in our region. We worked with two non-BIA federal 
Agencies in these efforts: the United States Fish & Wildlife Service 
(USFWS or Fish & Wildlife) and the Bureau of Land Management. Our 
experience with one was a success and with the other we faced 
unforeseen challenges that ultimately resulted in failure. I will talk 
about both of these experiences below because both hold lessons on the 
potential of self-governance to expand and flourish if the Title IV 
amendments are enacted into law.
Success Story: The Fish & Wildlife Service Compact For Yukon Flats 
        National Wildlife Refuge
    For many years, CATG has worked on behalf of its constituent tribes 
to ensure proper management of the region's natural resources that are 
vital to the continuation of Alaska Native cultures. Through a series 
of cooperative agreements CATG entered into with the USFWS, CATG 
implemented one of the primary purposes of the Alaska National Interest 
Lands Conservation Act: the continuation of subsistence traditions by 
Alaska Natives. For example, the 1997 USFWS-CATG cooperative agreement 
states:
        Harvesting of subsistence resources is essential to residents 
        of the area not only as sources of nutrition but also as the 
        cornerstones of their cultures. The harvesting of subsistence 
        resources is done within traditional territories and 
        distribut[ion] is governed by social obligations and kinship. 
        Subsistence foods are the primary sources of protein for the 
        area's Native residents. 2
---------------------------------------------------------------------------
    \2\ 1997 Cooperative Agreement
---------------------------------------------------------------------------
    CATG brought to the partnership with the USFWS a wealth of 
traditional and ecological knowledge. CATG has experience working with 
the local people to gather accurate data and has demonstrated its 
efficiency and effectiveness.
    CATG sought to expand this partnership by taking responsibility for 
certain work related to the Yukon Flats National Wildlife Refuge (YFNWR 
or Refuge) under the authorities set out in the ISDEAA. Initially CATG 
sought to negotiate an agreement with the USFWS under Title I of the 
ISDEAA, but USFWS rejected the proposal on the basis that the refuge 
programs could not be contracted under Title I because they do not 
exclusively benefit Indians. In 2002, CATG proposed to enter into an 
Annual Funding Agreement (AFA) with Fish & Wildlife under the Title IV 
Self-Governance Program. Like its Title I proposal, CATG could not 
include Refuge programs under the mandatory provisions of Section 
403(b)(2) of the ISDEAA, because the Refuge does not benefit Alaska 
Natives exclusively. Under the discretionary provisions of section 
403(c), however, a Title IV AFA can include programs, services, 
functions and activities that are of ``special geographic, historical 
or cultural significance to the participating Indian tribe requesting a 
compact.'' 3 After initially rejecting CATG's proposal, Fish 
& Wildlife eventually agreed that the Refuge's programs are of such 
significance to the CATG member Villages.
---------------------------------------------------------------------------
    \3\ 25 U.S.C. Sec. 458cc(c).
---------------------------------------------------------------------------
    Negotiations were sometimes difficult, particularly because Section 
403(c) is discretionary and the USFWS could walk away at any time. 
Through hard work, though, CATG and Fish & Wildlife eventually entered 
an AFA for FY 2004. This was the first Title IV agreement the USFWS 
entered with a tribe or tribal organization anywhere in the United 
States. Under the AFA, CATG performed the following activities related 
to the Refuge:
      Locate and Survey Public Access Easements
      Environmental Education and Outreach
      Subsistence Wildlife Harvest Data Collection
      Eastern Yukon Flats Moose Population Estimation Survey
      Logistics (Ft. Yukon Equipment and Facility Maintenance)
CATG brought to the partnership a wealth of traditional and ecological 
knowledge. It has experience working with local people to gather 
accurate data and 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.
    The partnership embodied in the Title IV agreement with Fish & 
Wildlife is now over three years old, and by all accounts it has been a 
success. In 2006, the USFWS Manager in charge of the Refuge submitted a 
letter of support of CATG as a semifinalist in Harvard's ``Honoring 
Nations 2006'' program, endorsing CATG as an outstanding example of 
tribal governance. In this letter, attached as an exhibit to my 
testimony, the Refuge Manager concluded that ``our two annual funding 
agreements with CATG have helped improve our communications with local 
residents of the Yukon Flats and have helped us both (the Refuge and 
CATG) improve our management and stewardship of the wonderful natural 
resources within the Yukon Flats ecosystem.''
    Recently, officials from Fish & Wildlife headquarters in 
Washington, D.C. traveled to the Refuge to see for themselves the 
successes reported by the Alaska region. These officials were so 
impressed that they hoped to develop similar types of collaboration 
with tribes and tribal organizations in other regions of the country.
    Unfortunately, there have been few success stories like CATG's Fish 
& Wildlife agreement nationally or even in Alaska. As the next story 
shows, part of the problem is that Title IV, as currently configured, 
does not give tribes and tribal organizations enough leverage in 
negotiations with non-BIA agencies, so the benefits illustrated by 
CATG's Refuge agreement are too often lost.
Lessons from the BLM Fire Management Negotiations
    Having successfully negotiated a Title IV agreement with Fish & 
Wildlife, and having seen the tangible benefits to the Refuge and to 
the people in the region that resulted, CATG sought to expand its self-
governance responsibilities to fire management functions carried out in 
the region by BLM's Alaska Fire Service. In 2005, CATG sent BLM a 
letter of interest requesting to negotiate a funding agreement to 
perform fire-related activities in the Upper Yukon region. CATG 
proposed to assume these activities under section 403(c). Like Fish & 
Wildlife before it, the BLM initially resisted on the grounds that 
fire-fighting activities have no particular significance to CATG and 
its member tribes. CATG eventually was able to convince the agency that 
fires are part of the natural resource system in which subsistence and 
other cultural patterns are embedded.
    After that initial stumbling block, the first meetings were 
encouraging: The BLM agreed that collaboration could result in 
significant improvements for fire management in the region. When it 
came time to actually identify the funding to be transferred, however, 
the BLM rejected CATG's proposed administrative budget. CATG had no 
negotiating leverage under the current Title IV: BLM staff kept 
reminding CATG during the negotiations process that the law allowed but 
did not require them to enter an agreement, and the agency was free to 
simply walk away at any time.
    Rather than accept the full scope of work that it had initially 
proposed with no funds for administrative support--a recipe for 
failure--CATG ultimately agreed to a much narrower scope limited to 
fire crew training and certification for the 2006 fire season. The 
funding agreement was signed by the parties on December 15, 2005. 
Giving Congress 90 days for review, as required by the current Title 
IV, the agreement should have been final and funds ready to distribute 
by March 15, 2006. But the BLM did not submit the agreement to Congress 
until March, or close to three months after the agreement was signed by 
the parties, resulting in additional delays. By the time the AFA was 
approved, it was too late in the season for CATG to train crews 
effectively, and the work actually carried out was limited to observing 
BLM pack tests and refresher courses.
    When CATG proposed to restore the original scope of work for the 
following year, 2007, the BLM did not even come to the table to 
negotiate a Title IV agreement, but proposed a take-it-or-leave it 
$4,000 contract. This year, CATG once again has written the BLM 
proposing negotiations on a full range of fire management activities 
for 2008, but BLM has yet to even respond to CATG's correspondence. 
Under existing Title IV authorities CATG has no real option to place 
pressure on BLM to even meaningfully sit down and negotiate over these 
programs.
Conclusion
    These two stories illustrate the potential benefits of the self-
governance program as well as some of the problems inherent in the 
existing statute.
    CATG's experience with USFWS illustrates how the program can 
effectively address the interests of the United States and the tribal 
governments in the YFNWR. On the other hand, CATG's experience with BLM 
illustrates some real problems with the current Title IV statute: The 
discretionary provisions for assuming non-BIA functions place unlimited 
discretion in the hands of federal agency officials who may not have 
any interest in implementing Congress' policy of self-governance to 
decide for themselves if they want to collaborate with a tribal 
organization like CATG. The simple fact is that CATG's experience with 
the BLM makes clear that the discretionary provisions in the existing 
Title IV statute need to be amended to fulfill Congress' and tribes' 
visions of how the self-governance program should be implemented by 
non-BIA Agencies.
    The non-BIA provisions in H.R. 3994 would have significantly 
changed the entire dynamic in the CATG-USFWS and BLM negotiations in 
several key ways:
      Proposed 405(b)(2)(A) provides that non-BIA Interior 
agencies ``shall'' enter funding agreements for ``those programs with 
respect to which Indian tribes or Indians are primary or significant 
beneficiaries.'' While there will always be funding and other issues to 
hash through, the agency could not simply walk away, as both the USFWS 
and BLM threatened to do.
      H.R. 3994 would also amend Title IV to add crucial timing 
provisions to prevent agencies from dragging out negotiations 
indefinitely, as BLM has done in the past three years. In the event the 
parties cannot reach agreement, the new section 407(c)(1) would allow 
tribes to submit a ``final offer'' to which the agency must respond 
within 45 days, or the offer is deemed approved. The same section 
clearly states the reasons for which a final offer can be rejected, and 
sets forth the appeal process. These provisions, substantially 
identical to those in Title V, the IHS self-governance statute, are 
lacking in the current Title IV, giving Interior agencies no incentive 
to continue negotiating and no consequences for failing to do so.
      Finally, H.R. 3994 eliminates the 90-day congressional 
review requirement. This requirement has not served a meaningful 
oversight function, but it did result in delays and is an additional 
means non-BIA Interior agencies can use to stall implementation of an 
agreement.
    In sum, CATG's experience provides a good example of what tribal 
self-governance can accomplish with both BIA programs and with non-BIA 
programs within the Department of Interior. Unfortunately, the current 
Title IV makes our experience with the BLM fire management project the 
norm, and our successful collaboration with Fish & Wildlife the 
exception. We respectfully request the Committee's support for H.R. 
3994, so that more Tribes--and more agencies within Interior--can 
benefit from the Self-Governance Program
    Thank you.
                                 ______
                                 
                                 [GRAPHIC] [TIFF OMITTED] 38969.001
                                 
                                 .eps[GRAPHIC] [TIFF OMITTED] 38969.002
                                 
    .epsMr. Rahall. Thank you, Mr. Stevens. My first question 
is for Chairman Allen. H.R. 3994 expands the scope of 
contractible programs, ``from those benefitting Indians,'' to 
those for which Indians are, ``the primary or significant 
beneficiaries.'' Which programs will now be contractible 
because of the expansion to programs in which Indians are the, 
``primary or significant beneficiaries''?
    Mr. Allen. Thank you, Mr. Chair. I don't have a 
comprehensive answer to it. What it allows us as with Parks, 
and Fish and Wildlife, and BLM and BOR, there are a number of 
programs that are applicable to the tribes that fit under that 
criteria. What this bill would do, it will authorize the tribes 
and strengthen the current provisions in the bill for the 
tribes to negotiate with the Secretary for those functions.
    Some people are alarmists, you know? That means that tribes 
are going to completely take over a park. It doesn't allow us 
to do that because there are some inherent Federal functions 
and there are some activities that we can't take over.
    I would say that in each area with respect to the tribes' 
rights, the nexus with respect to that tribe, whether it is 
Alaska, or whether it is Oklahoma or anywhere else in Indian 
country, it allows us to go to those bureaus and negotiate for 
those functions that actually have a nexus relationship, a 
cultural significant relationship to the tribe and the tribe's 
activities, and we can enter in negotiation for those functions 
that we believe that we should be able to compact.
    Mr. Rahall. Thank you. I appreciate your answering that 
totally wrong perception that seems to be out there in some 
peoples' minds that this legislation would cause the Department 
of the Interior to turn over units of the national parks to 
Indian tribes because the legislation is explicit in 
prohibiting the delegation of any inherent Federal function 
from the Park Service to an Indian tribe. I am glad you 
answered that.
    Mr. Allen. If I might add, Mr. Chair, we agree. We have 
always agreed with that issue. The inherent Federal function is 
an area where we have been trying to get a clearer definition, 
and that has been very challenging between the tribes and 
Interior, and we have been asking for a clearer definition.
    Now, there are other Federal functions that are gray areas, 
and our view is that those are negotiable. Let us just talk 
about what we can take over that can be compacted out and/or 
identify the functions that the Secretary has to retain because 
of his or her legal obligations.
    Mr. Rahall. Thank you. Let me ask you, your written 
testimony indicates that participation in self-governance has 
receded. How many tribes have returned self-governance 
programs?
    Mr. Allen. I don't know of any tribe that has actually 
returned. I don't know of a tribe that has actually retroceded 
any program at all that I can think of. There may be an example 
or two out there. There are 234 tribes that are currently 
compacting functions, A through Z. They have actually been 
adding and not subtracting.
    Mr. Rahall. Do you know how many tribes may be interested 
in participating in self-governance because of this 
legislation?
    Mr. Allen. There are many tribes that want to actually 
participate. The problem that this bill will help address is it 
provides some finality to negotiations. There has been some 
entrenching by the system in terms of actually identifying the 
resources that are available to them and that they should be 
able to negotiate for, activity, or function, et cetera, within 
each of their respective areas.
    So that has been part of the problem is the sincerity of 
it. That is what this bill would do is it would provide a clear 
process and a finality to final offers and responses so we can 
know where we have an impasse.
    Mr. Rahall. Thank you. Ms. Benjamin, let me ask you, in 
your written testimony you mention that the Clinton 
administration, the Appropriations Committee and then Secretary 
Slate Gordon stopped the transfer of the tribal share of 
central office funds. I am accurate in that?
    Ms. Benjamin. Yes. Thank you, Mr. Chairman.
    Mr. Rahall. Well, again, my question is what was the 
administration's and the Congress' rationale for stopping the 
transfer of the tribal share of central office funds?
    Ms. Benjamin. Central office claimed it needed tribal 
shares for BIA management, and so we lost services at our 
reservation. I think a lot of times the Federal bureaucracies 
always insist they need our dollars.
    Mr. Rahall. The bill authorizes the transfer of Office of 
Special Trustee functions. What Office of Special Trustee 
functions and programs will be eligible for transfer upon 
enactment of this legislation?
    Ms. Benjamin. Trust management.
    Mr. Allen. Well, if I might, Mr. Chair?
    Mr. Rahall. Yes.
    Mr. Allen. Because many of the functions for trust 
management, after these got transferred over to OST they 
developed an argument in Interior that those were more Federal 
functions because of the Cobell case that they had to actually 
administer. So essentially what they have done is they have 
taken those activities, those functions, off the table so that 
the tribes can't go after those particular programs.
    We believe that we can administer them and that they are 
not inherent Federal functions or they are not even in a gray 
area that they have to carry out those activities. So we 
believe that there is quite a few different functions and 
programs out there that are administered in terms of 
management, trust resources, management of the individual 
accounts and so forth that we actually can take over.
    Now, some tribes I think have retained some of those 
functions today, but now it has stopped. Tribes want to 
continue to go after those programs and believe that we 
rightfully should be able to administer them.
    Mr. Rahall. Thank you. Lieutenant Governor Keel, let me ask 
you a question. The bill authorizes tribes to invest funds 
using the prudent investment standard. Has your tribe invested 
Title V funds using this standard, and does your tribe use the 
interest to provide additional services for which the 
underlying funds were allocated?
    Mr. Keel. Thank you, Mr. Chairman. Under Title V we do 
engage in what we refer to as third-party billing. Under the 
authorities that we have we are able to bill for private 
insurance and third-parties for services that are provided, 
particularly for Indian healthcare. We in turn utilize that 
revenue that we receive to improve and expand the level of 
services that are provided through our health system.
    As an example, the amount of money that is received per 
capita in Oklahoma for Indian healthcare for our citizens is 
about $850 per person per capita for the tribal citizens in 
Oklahoma. We take that revenue, obviously that is the lowest in 
the country, but we are able to utilize the services or the 
money, revenue, that we generate through third-party 
collections and hire additional physicians.
    We have changed our healthcare delivery system in Oklahoma 
in the Chickasaw Nation health system to a family practice 
model. We operate four outpatient clinics whereby we utilize 
third-party revenues, and we have hired family practice medical 
doctors who are Board certified physicians. They in turn 
supervise the outpatient clinics in the four clinics that we 
manage.
    We have improved the level and quality of services whereas 
under the old system our patients, our citizens, would not be 
able to see the same physician sometimes. They would come back, 
see another physician, or whatever. Under this model they now 
have a family practice physician who supervises their care.
    We have also been able to develop a diabetes treatment 
clinic which specifically focuses on the treatment of diabetes 
for all of the Native American patients, not necessarily just 
Chickasaw. These are not Chickasaw patients, but these are all 
Native Americans that are identified with diabetes. That frees 
up a lot of the resources, and particularly time and other 
available resources, to deal with other lesser ambulatory 
services.
    So the flexibility that we have been able to gain through 
the third-party revenues, as you mentioned, interest or 
whatever, that does allow us to improve not only the level but 
the quality of services that are provided to our people.
    Mr. Rahall. Thank you. Governor Chavarria, let me ask you a 
question. In your written testimony you indicate that the 
Department has made over broad determinations of the programs, 
services, functions and activities that are inherent Federal 
functions. What types of programs, services, functions and 
activities has the Department deemed inherent Federal functions 
in which the tribe disagreed and which would be eligible for 
compacting under the legislation?
    Mr. Chavarria. Panel, you are going to have to help me out 
on this one here. Ron? I think one of the things that we are 
looking at on that program, function, services, we are looking 
at what is actually eligible and actually helping us define the 
inherent Federal functions to determine what can a tribe then 
compact?
    Because right now that is a gray area for us is what is 
actually inherent Federal function that is eligible to be 
compacted for Santa Clara Pueblo to then perform our duties on 
behalf of our constituents there in Pueblo country. I think 
that with that provision that is going to help us then 
determine what is going to better be compactable for us in 
Santa Clara and leave the other obligations with the Secretary.
    Mr. Rahall. OK. Let me ask my final question, Mr. Stevens. 
H.R. 3994 mandates that non-BIA agencies within the Department 
of Interior enter into funding agreements for, ``programs with 
respect to which Indian tribes or Indians are primary or 
significant beneficiaries.'' My question is given this mandate, 
what options does the Department have to reject a situation 
where a tribe is truly not capable of performing the duties 
required of the program?
    Mr. Stevens. What options would the Department have?
    Mr. Rahall. To reject a situation where a tribe is truly 
not capable of performing the duties required of the program?
    Mr. Stevens. I am not really sure how to answer that. Mr. 
Allen, can you help me there?
    Mr. Allen. Yes. Mr. Chair, these are discretionary 
programs, and so the Secretary in negotiating for the activity 
or function that the tribe is negotiating for, Secretary has 
the authority to identify or ask the tribe to identify its 
capability to administer that program.
    In its discretion, that is retaining the Secretary's 
discretion, he or she can say that in their judgment that the 
tribe has not exhibited the capacity, the accountability and 
the capability to administer that particular program or 
activity, and they can decline the proposal, the proposed 
compact activity that the tribe is asking for. So that will be 
in their declination.
    Right now they are not required to even do that, and so we 
want them to in their declination to basically show us why you 
believe that we don't have the capacity so that we have the 
ability to go back and say no, we do have the ability. So that 
is where the Secretary retains the discretion, and all we are 
looking for is the identification of that issue.
    If I might add, you know, in Mr. Keel's answer to the 
investment, the interest, when we get the money in a lump sum 
we do put it in and invest it, and we get interest. What you 
will notice, in every one of our programs that we are 
completely underfunded. We have made this case to Congress many 
a time.
    So what we do is when we generate additional revenues from 
the investment we can show you categorically that money goes 
back into those programs basically to address what we call 
unmet need. So it wouldn't matter whether it is healthcare, 
which happens in IHS, or if it is a small amount of money that 
we can generate on the DOI, BIA programs, so it is an 
investment.
    To even make the case even stronger, categorically you will 
see that the tribes add dollars, their own dollars, to that 
program so that it functions even better.
    Mr. Rahall. Thank you. Yes, sir?
    Mr. Keel. Mr. Chairman, in addition to the answer that has 
already been provided, I believe that in the bill itself there 
is a requirement for a planning phase for each tribe to go to 
be undertaken. In that planning phase the determination would 
be made whether or not the tribe would be capable of 
undertaking a particular program or not.
    That determination would then be made not only by the 
Secretary but by the tribe. It would be a joint effort. That 
truly comes back to the government-to-government relationship 
where the determinations are made not unilaterally but jointly 
to determine whether or not a tribe could assume or not assume, 
or whether or not they would prefer to assume either in whole 
or in part some of those programs.
    Mr. Rahall. Thank you. Anybody else wish to comment on the 
question or any of the questions? Yes, sir?
    Mr. Allen. Just one final comment, Mr. Chair. We work 
really hard with Interior, and we want to compliment Interior 
in terms of working with the tribe to try to bring a proposed 
bill to you that has worked out the majority of the issues. We 
believe that we have done a good job, and we are really 
appreciative of the Interior actually stepping up with their 
personnel to work out the majority of the issues.
    There were a lot more a few years back. This has been about 
a three year process in developing the bill to where it is. 
Just like Title V you are going to get basically 90, 95 percent 
of the issues resolved, and we are just going to make our pitch 
to you, here is what they believe is what they want in a bill, 
and here is what we believe what we want, and then we ask you 
to basically make the decision.
    That is what happened in Title V. In Title V Congress sided 
with the tribes, and we have shown in the last seven years of 
experience that it works. So we have a difference of opinion, 
and that is going to happen. We just can't resolve all issues 
in negotiation and ask the Congress to basically make the 
decision.
    Mr. Rahall. Appreciate it. Thank you. Thank you all for 
being here today. Again, the Chair wants to thank the Assistant 
Deputy Secretary, Mr. Cason, for staying with us during the 
entire hearing this morning. Thank you. the Committee will 
stand adjourned.
    [Whereupon, at 11:45 a.m., the Committee was adjourned.]

    [Additional material submitted for the record follows:]
    [A statement submitted for the record by The Honorable 
Clifford Lyle Marshall, Chairman, Hoopa Valley Tribe, follows:]

Statement submitted for the record by Chairman Clifford Lyle Marshall, 
                           Hoopa Valley Tribe

    Chairman Rahall and Members of the Committee, my name is Clifford 
Lyle Marshall. I am the Chairman of the Hoopa Valley Tribe, a federally 
recognized Indian Tribe whose life and culture depend on the fishery 
resources of the Klamath River Basin (which includes the Trinity River 
as the largest tributary of the Klamath River). I offer these written 
comments in support of H.R. 3994, Tribal Self-Governance Act of 2007, a 
bill to amend the Indian Self Determination and Education Assistance 
Act (ISDEAA) to enable tribes to contract to perform activities that 
might otherwise be performed by various agencies of the U.S. Department 
of the Interior.
    Tribal contracting abilities can be used either directly, as a 
lever to improve deliveries of services and to reduce federal 
bureaucracy, or as a mechanism to incorporate tribal input in the 
management of trust resources and assets. I draw your attention in 
particular to section 405(b)(2)(B) of H.R. 3994 that would enable 
Indian tribes to contract to perform programs, or portions thereof, 
that ``restore, maintain or preserve a resource (for example, 
fisheries, wildlife, water, or minerals) in which an Indian tribe has a 
federally reserved right, as quantified by a Federal court.'' Because 
of the wealth of experience reflected in the Hoopa Valley Tribe's 
departments and staff, we believe that this provision would improve 
environmental protection and resource management to the benefit of the 
Tribe and the United States. Resources and ecosystems elsewhere would 
also benefit from enhanced tribal management capacity. I focus my 
written testimony on this section of the proposed legislation.
A. Hoopa Valley Tribe's Reliance on the Fishery
    The Hoopa Valley Tribe, the Hupa people, and the Klamath/ Trinity 
Rivers stand to directly benefit from the passage of H.R. 3994.
    The Trinity River, which is located in northwestern California, 
once contained thriving salmon runs. The lower 12 miles of the Trinity 
River flow through the Hoopa Valley Reservation, which extends six 
miles to either side of the river. The impressive fish stocks defined 
the life and culture of the Hoopa Valley and Yurok Indian Tribes. As 
described by the Interior Department Solicitor in 1993, a primary 
purpose for establishing the reservations of the Hoopa Valley and Yurok 
Tribes along the Trinity and Lower Klamath Rivers, respectively, ``was 
to secure to these Indians the access and right to fish without 
interference from others'' in order to preserve and protect their right 
to maintain a self sufficient livelihood from the abundance provided by 
the rivers. Since time immemorial, the fishery resources of the Klamath 
and Trinity Rivers have been the mainstay of the life and culture of 
the Tribe. The fishery resources of the Trinity River and Lower Klamath 
River Basins have been characterized as ``not much less necessary to 
the existence of the Indians than the atmosphere they breathe.'' Blake 
v. Arnett, 663 F.2d 906, 909 (9th Cir. 1981).
    As the U.S. District Court for the Northern District of California 
has noted:
          [T]o modern Indians of the Hoopa Valley Reservation, fishing 
        remains a way of life, not only consistent with traditional 
        Indian customs, but also as an eminently practical means of 
        survival in an area which lacks the broad industrial or 
        commercial base which is required to provide its population, 
        Indian or otherwise with predictable, full time employment and 
        income adequate to provide sufficient quantities and qualities 
        of the necessities of life.
United States v. Wilson, 611 F. Supp. 813, 818 n.5 (N.D. Cal. 1985), 
rev'd on other grounds sub nom., United States v. Eberhardt, 789 F.2d 
1354 (9th Cir. 1986). As a result, ``the [Hoopa Valley and Yurok] 
tribes are entitled to a sufficient quantity of fish to support a 
moderate standard of living, or 50% of the Klamath fishery harvest in 
any given year, whichever is less.'' Memorandum from John D. Leshy, 
Solicitor of the Department of the Interior to the Secretary of the 
Interior 3, 15, 18-21 (Oct. 4, 1993), cited with approval, Parravano v. 
Babbitt, 70 F.3d 539, 542 (9th Cir. 1995), cert. denied, 518 U.S. 1016 
(1996).
    The quantification of the Tribe's fishing right, as recognized by 
the Solicitor's Office and affirmed by the Federal courts, creates a 
protectable property right in a share of harvestable fish and the water 
necessary to make those fish productive, which are reserved by federal 
law. See, e.g., Central Valley Project Improvement Act Pub. L. 102-75, 
Sec. 3406(b)(23), 106 Stat. 4714, 4720 (expressly identifies fulfilling 
the federal trust responsibility to restore and enhance the fishery 
resources of the Hoopa Valley Tribe). These tribal rights provide 
strong tools to compel federal, state and private actors to halt 
damaging activities. See United States v. Washington, 2007 WL 2437166 
(W.D. Wash. 2007) treaty requires State not block spawning areas). The 
Tribe is actively involved in water allocation issues and fishery 
protection in the Klamath and Trinity River Basins. However, what the 
Tribe can do is limited by access to funds. The proper management of 
the Tribe's fishery resources by the Bureau of Reclamation 
(Reclamation) is no less important to our future and rights than any 
other program presently included in the BIA's budget. Unfortunately, 
the mere fact that our fishery resources are being managed by the 
Reclamation, because it is the manager of the Central Valley Water 
Project, has been viewed by the Department of the Interior as a reason 
to prevent and complicate contracting its programs with the Tribe. In 
the Department's view, even programs that exist because of the United 
States' trust responsibilities to restore and maintain the fishery 
resources that are intended for the Tribe are discretionary under the 
present Self-Governance provisions of the ISDEAA. As explained below, 
if passed, H.R. 3994 will make it possible for the Tribe to contract to 
perform activities directly that might otherwise be performed by 
various agencies of the Interior Department thereby benefiting the 
Tribe and the resource.
B. Importance of H.R. 3994
    Section 405(b)(2)(A) provides an important recognition of purposes 
of Title IV of the Indian Self Determination and Education Assistance 
Act (``ISDEAA'') and a critical expansion of the ability of tribes to 
contract for programs that benefit both Indians and non-Indians. H.R. 
3994 would amend Title IV to provide a new section 405(b)(2) that 
provides that ``a funding agreement shall...authorize the Indian Tribe 
to plan, conduct, consolidate, administer and receive full tribal share 
funding for all programs carried out by the Secretary outside the 
Bureau of Indian Affairs'' that are for the benefit of Indians because 
of their status as Indians or that are programs with respect to which 
Indian tribes are ``primary or significant beneficiaries.'' Allowing 
tribes to contract for programs that benefit both Indian and non-Indian 
beneficiaries addresses one of the major practical and legal hurdles 
tribes face in obtaining contract funding for significant tribal 
programs.
    The existing language in the ISDEAA is interpreted by the 
Department as giving the Secretary absolute and unbridled discretion to 
manage non-Bureau of Indian Affairs (BIA) trust programs in manners 
that create significant financial burdens on the Tribe. For example, 
the Department is not required to execute funding agreements with the 
Tribe in any specific timeframe, allowing for unnecessary and 
detrimental bureaucratic delays. The trust fishery resources, however, 
do not comply with the same bureaucratic delays in their life cycles. 
Since the Tribe entered into its first funding agreement with the 
Reclamation in 1993, the Tribe has had to advance in no-interest loans 
over $11 million to carry out programs associated with the Trinity 
River Restoration Program because the activity needed to be performed 
before the contract was finally approved. The Tribe has documented that 
at times its contracts have not been approved until after the eighth, 
sometimes even the eleventh month, of a fiscal year. Every one of these 
programs which are funded by the Tribe has direct benefits to non-
Indians as well as Indians. Attached is a table demonstrating the 
timing of funding agreements between the Tribe and Reclamation since 
1993 until 2005.
    Besides creating a significant financial burden for the Tribe, 
delays in executing contracts have also created administrative, 
programmatic and staffing nightmares for the Tribe. For example, 
funding non-interest advances for carrying out Trinity River 
Restoration programs has caused internal problems under our budget 
deficit controls set forth in the Tribe's Budget Ordinance. Our 
Fisheries Department staff has had to create budget ``enterprise'' 
accounts under the Tribe's budget which allow the Tribe to carry out 
deficit spending until Reclamation finally approves the contract. In FY 
2006, the Tribe's contract with Reclamation was not completed until 
September--the eleventh month of the fiscal year. After the Reclamation 
contract is finally approved, the Tribal Fiscal and Fisheries staff are 
required to reconstruct the entire year's spending to transfer budget 
expenses from the enterprise deficit account to the Reclamation 
contract budgets. From the programmatic and staffing perspectives, our 
Tribal Government is never sure what expenses and costs are really 
going to be budgeted for and reimbursed by Reclamation's contracts. In 
some cases, Reclamation has made adjustments to budgets after the Tribe 
has performed a fishery management activity and has disallowed costs 
even though they were agreed to in previous years.
    The Tribe believes strongly that these problems stem from the vague 
and overly discretionary interpretations of the existing ISDEAA. The 
Department of the Interior has often argued that creating mandatory 
contract requirements for non-BIA programs will create problems in 
carrying out programs that benefit non-Indians. However, the Department 
has never explained how non-Indians are benefited by Reclamation's 
funding remaining in the U.S. Treasury for most of the fiscal year 
while their fishery management activities are being carried out using 
non-interest loan funds provided by the Tribe.
    There are clear inconsistencies between the Department's 
application of unbridled discretion in carrying out the Trinity River 
Restoration Program and recurring delays in executing contracts with 
the Tribe. Even the Courts have been clear about the United States' 
trust obligations to effectively carry out the Trinity River 
Restoration Program. In August 2004, the 9th Circuit Court of Appeals 
ruled in the Tribe's favor and against the Central Valley Project (CVP) 
contractors. The Court stated:
          The number and length of the studies on the Trinity River, 
        including the EIS, are staggering, and bear evidence of the 
        years of thorough scrutiny given by the federal agencies to the 
        question of how best to rehabilitate the Trinity River fishery 
        without unduly compromising the interests of others who have 
        claim on Trinity River water. We acknowledge, as the district 
        court highlighted, concerns that the federal agencies actively 
        subverted the NEPA process, but our review of the EIS shows 
        that the public had adequate opportunity to demand full 
        discussion of issues of concern.
          Twenty years have passed since Congress passed the first 
        major Act calling for restoration of the Trinity River and 
        rehabilitation of its fish populations, and almost another 
        decade has elapsed since Congress set a minimum flow level for 
        the River to force rehabilitative action. Flow increases to the 
        River have been under study by the Department of the Interior 
        since 1981. ``[R]estoration of the Trinity River fishery, and 
        the ESA-listed species that inhabit it...are unlawfully long 
        overdue.
          As we have disposed of all of the issues ordered to be 
        considered in the SEIS, nothing remains to prevent the full 
        implementation of the ROD, including its complete flow plan for 
        the Trinity River. We remand to the district court for further 
        proceedings not inconsistent with this opinion.
    Westlands Water District v. U.S. Dept. of Int., 376 F.3d 853, 878 
(9th Cir. 2004). Clearly, the Department's consistent failures to carry 
out the ISDEAA's Self-Governance contract requirements in a timely and 
proper manner are in direct conflict with these legal mandates. The 
source of this abuse of discretion is the ambiguous and vague language 
of the existing ISDEAA, which is intended to be addressed by the non-
BIA provisions contained in H.R. 3994.
    The existing system does not work. An example of the importance of 
this bill is the administration of Trinity River restoration activities 
under the Interior Secretary's Record of Decision of December 2000 
(``ROD''). The ROD was adopted to carry out the Secretary's 
responsibility to restore and protect Hoopa tribal fish resources as 
mandated by Congress in Pub. L. 102-575, Sec. 3406(b)(23), 106 Stat. 
4720 (Oct. 30, 1992). Despite the express Congressional recognition of 
trust responsibility and the purpose to protect tribal fisheries, the 
Department of the Interior agencies handling Trinity restoration work 
have denied the Hoopa Valley Tribe's right to carry out or manage 
specific restoration activities. The Tribe challenged this action, but 
the Ninth Circuit Court of Appeals affirmed the district court's 
decision that the Tribe could not contract specific services because 
the Tribe was not the sole intended beneficiary of the restoration 
program. Hoopa Valley Tribe v. Ryan, 415 F.3d 986 (9th Cir. 2005). 
Rejecting the Tribe's proposal to contract particular programs, 
functions, services, and activities to implement Congressionally 
mandated restoration of the Trinity River and the Trinity fishery meant 
that, even though the Department of Interior and the Federal courts 
have affirmed the Tribe's right to 50% of the harvestable fish of the 
Trinity River system, the Tribe could not contract to provide a 
significant portion of the river and fishery restoration work. This 
result is counter-intuitive and most certainly contrary to the needs of 
the resource.
    Without the provisions of H.R. 3994, the Tribe remains unable to 
include those activities in its self-governance compact. The Tribe's 
work and Congress's directive created these programs. Interior's 
management of the programs jeopardizes them and makes successful 
restoration elusive.
    In stark contrast, enabling tribes to contract for non-BIA 
administered programs that affect ``quantified rights'' will serve many 
positives. H.R. 3994 will promote efficiency by allowing tribal leaders 
and staff familiar with the resource and local conditions to make more 
informed management decisions that could also save on costs. By placing 
tribes in decision making positions with respect to their own 
``quantified rights,'' H.R. 3994 will vest tribes with the information 
and resources necessary for enhanced stewardship of our resources. Most 
importantly, H.R. 3994 affirms tribal sovereignty by shifting federal 
functions to local control and enabling tribes to decide for themselves 
how best to manage these critical resources.
    A bedrock principle of the ISDEAA was that prolonged federal 
domination of Indian service programs and programs benefiting Indians 
had retarded, rather than enhanced, the progress of Indian people. 
Worse, federal program administration has failed to protect resources. 
Where an Interior Department program directly affects tribal reserved 
rights such as fisheries, wildlife, water or minerals, the experience 
of the past 30 years has demonstrated the importance and the benefits 
of permitting tribes to carry out the services. Indian tribes have a 
proven track record of protecting these vital resources.
    Congress is committed to ``the establishment of a meaningful Indian 
self determination policy which will permit an orderly transition from 
the Federal domination of programs for, and services to, Indians to 
effective and meaningful participation by the Indian people in the 
planning conduct and administration of those programs and services.'' 
25 U.S.C. Sec. 450a(b). Both the plain language of Sec. 450f(a)(1)(E) 
and the underlying policy declared in Sec. 450a(b) compel the 
conclusion that H.R. 3994 makes a reality by expanding the universe of 
contractible programs available to Indian tribes. As such, H.R. 3994 
helps end the ``Federal domination of Indian service programs,'' 25 
U.S.C. Sec. 450, that Congress sought to eliminate through the ISDEAA.
    Congressional, administrative and judicial records have all 
demonstrated the importance of the fishery resources of the Klamath and 
Trinity Rivers to the health and well being of the Hoopa Valley Tribe. 
Even the Bureau of Reclamation cannot overlook the influence that the 
fishery resources has on the future economic well-being and livelihood 
of the Hupa people. The Tribe urges you to favorably recommend this 
legislation for passage by the House.
    Thank you for your consideration of our testimony. If you have any 
questions, please contact me at the Hoopa Valley Tribal Office.
[GRAPHIC] [TIFF OMITTED] 38969.003

                                 .eps__
                                 
    [A statement submitted for the record by The Honorable Chad 
Smith, Principal Chief, Cherokee Nation, follows:]

[GRAPHIC] [TIFF OMITTED] 38969.004

.eps[GRAPHIC] [TIFF OMITTED] 38969.005

                               .eps
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