[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
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
Committee address: http://resourcescommittee.house.gov
U.S. GOVERNMENT PRINTING OFFICE
38-969 PDF WASHINGTON DC: 2008
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
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