[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
H.R. 3490, H.R. 3522, H.R. 5608, H.R. 5680 AND S. 2457
=======================================================================
LEGISLATIVE HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
Wednesday, April 9, 2008
__________
Serial No. 110-65
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
Dale E. Kildee, Michigan Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas Chris Cannon, Utah
Frank Pallone, Jr., New Jersey Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin Jeff Flake, Arizona
Islands Stevan Pearce, New Mexico
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam Cathy McMorris Rodgers, Washington
Jim Costa, California Louie Gohmert, Texas
Dan Boren, Oklahoma Tom Cole, Oklahoma
John P. Sarbanes, Maryland Rob Bishop, Utah
George Miller, California Bill Shuster, Pennsylvania
Edward J. Markey, Massachusetts Bill Sali, Idaho
Peter A. DeFazio, Oregon Doug Lamborn, Colorado
Maurice D. Hinchey, New York Mary Fallin, Oklahoma
Patrick J. Kennedy, Rhode Island Adrian Smith, Nebraska
Ron Kind, Wisconsin Robert J. Wittman, Virginia
Lois Capps, California
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
Rick Healy, Chief Counsel
Christopher N. Fluhr, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Wednesday, April 9, 2008......................... 1
Statement of Members:
Boren, Hon. Dan, a Representative in Congress from the State
of Oklahoma, Statement submitted for the record............ 78
Kildee, Hon. Dale, a Representative in Congress from the
State of Michigan.......................................... 47
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 2
Prepared statement of.................................... 3
Statement of Witnesses:
Andy, Fidelia, Chairwoman, Columbia River Inter-Tribal Fish
Commission................................................. 61
Prepared statement on H.R. 5680.......................... 63
Cason, Hon. James, Associate Deputy Secretary, U.S.
Department of the Interior................................. 4
Prepared statement on H.R. 5608.......................... 6
Danforth, Hon. Gerald, Chairman, Oneida Business Committee,
Oneida Tribe of Indians of Wisconsin....................... 32
Prepared statement on H.R. 5608.......................... 34
Day, Hon. Kevin, Chairman, Tuolumne Band of Me-Wuk Indians... 53
Prepared statement on H.R. 3490.......................... 54
Forsgren, Dennis Lee, Jr., Consultant, Miccosukee Tribe of
Indians of Florida......................................... 71
Prepared statement on H.R. 5680.......................... 72
Gidner, Jerry, Director, Bureau of Indian Affairs............ 40
Prepared statement on H.R. 5680, H.R. 3522, H.R. 3490, S.
2457................................................... 43
Hogen, Hon. Philip N., Chairman, National Indian Gaming
Commission................................................. 9
Prepared statement on H.R. 5608.......................... 10
McSwain, Robert G., Acting Director, Indian Health Service... 13
Prepared statement on H.R. 5608.......................... 15
Rolin, Hon. Buford, Chairman, Poarch Band of Creek Indians... 25
Prepared statement on H.R. 5608.......................... 27
Shirley, Dr. Joe, President, The Navajo Nation............... 22
Prepared statement on H.R. 5608.......................... 24
Welsh-Tahbo, Hon. Valerie, Secretary, Tribal Council,
Colorado River Indian Tribes............................... 49
Prepared statement on H.R. 5680.......................... 51
Additional materials supplied:
Jicarilla Apache Nation, Letter submitted for the record on
H.R. 3522.................................................. 79
Lummi Indian Nation, Statement submitted for the record on
H.R. 5608.................................................. 80
McIntosh, Paul, Executive Director, California State
Association of Counties, Letter submitted for the record... 81
McNeil, Chris E., Jr., President & CEO, Sealaska Corporation,
Statement submitted for the record on H.R. 5680............ 81
National Congress of American Indians, Statement submitted
for the record............................................. 83
Snow, Ronda J., Lac du Flambeau Tribal Member, and Ginew
Grandmother Spokesperson, Letter submitted for the record
on H.R. 5680............................................... 91
Stevens, Ernest L., Jr., Chairman, National Indian Gaming
Association, Statement submitted for the record on H.R.
5608....................................................... 91
LEGISLATIVE HEARING ON H.R. 5608, TO ESTABLISH REGULAR AND MEANINGFUL
CONSULTATION AND COLLABORATION WITH TRIBAL OFFICIALS IN THE
DEVELOPMENT OF FEDERAL POLICIES THAT HAVE TRIBAL IMPLICATIONS,
TO STRENGTHEN THE UNITED STATES GOVERNMENT-TO-GOVERNMENT
RELATIONSHIPS WITH INDIAN TRIBES, AND TO REDUCE THE IMPOSITION
OF UNFUNDED MANDATES UPON INDIAN TRIBES; H.R. 3522, TO RATIFY A
CONVEYANCE OF A PORTION OF THE JICARILLA APACHE RESERVATION TO
RIO ARRIBA COUNTY, STATE OF NEW MEXICO, PURSUANT TO THE
SETTLEMENT OF LITIGATION BETWEEN THE JICARILLA APACHE NATION
AND RIO ARRIBA COUNTY, STATE OF NEW MEXICO, TO AUTHORIZE
ISSUANCE OF A PATENT FOR SAID LANDS, AND TO CHANGE THE EXTERIOR
BOUNDARY OF THE JICARILLA APACHE RESERVATION ACCORDINGLY, AND
FOR OTHER PURPOSES; H.R. 3490, TO TRANSFER ADMINISTRATIVE
JURISDICTION OF CERTAIN FEDERAL LANDS FROM THE BUREAU OF LAND
MANAGEMENT TO THE BUREAU OF INDIAN AFFAIRS, TO TAKE SUCH LANDS
INTO TRUST FOR TUOLUMNE BAND OF ME-WUK INDIANS OF THE TUOLUMNE
RANCHERIA, AND FOR OTHER PURPOSES; S. 2457, A BILL TO PROVIDE
FOR EXTENSIONS OF LEASES OF CERTAIN LAND BY MASHANTUCKET PEQUOT
(WESTERN) TRIBE; AND H.R. 5680, TO AMEND CERTAIN LAWS RELATING
TO NATIVE AMERICANS, AND FOR OTHER PURPOSES.
----------
Wednesday, April 9, 2008
U.S. House of Representatives
Committee on Natural Resources
Washington, D.C.
----------
The Committee met, pursuant to call, at 10:05 a.m. in Room
1324, Longworth House Office Building, Hon. Nick J. Rahall, II
[Chairman of the Committee] presiding.
Present: Representatives Rahall, Smith, Kind, Grijalva,
Inslee, Sarbanes, Kildee, Baca and Napolitano.
STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF WEST VIRGINIA
The Chairman. The Committee is meeting today to receive
testimony on several bills of interest to Indian tribes, H.R.
5608, H.R. 3522, H.R. 3490, and S. 2457.
H.R. 5608, the Consultation and Coordination with Tribal
Governments Act, is a measure which I introduced with my dear
friend, Congressman Dale Kildee. There is a maxim from ancient
Roman law regarding the need for consultation. I will not
attempt the Latin, but it translates to: What touches all must
be approved by all.
When it comes to issues affecting Indian Country, it seems
almost everyone, with the exception of the Administration,
understands what this means. It means that Indian tribes are
governments and as such must be consulted with, not dictated
to. My bill simply requires that Federal agencies establish a
consultation process that is to be used prior to taking an
action which would have a direct effect on Indian tribes. It
tracks an executive order President Clinton issued in 2000.
Now, I expect we will hear opposition to this bill from the
Administration that it is too costly or somehow unworkable,
unnecessary and generally difficult to implement, yet I think
tribes will say that having new mandates forced upon them is
costly, unworkable, unnecessary and generally very difficult to
implement. Throughout history when Indian policy has been made
without tribal input, the results have been failure after
failure. When Indian tribes are consulted and a part of the
process up front, the results are successful policies.
I wish it were not necessary to have this legislation, but
time after time this Administration has set out new policies
and mandates with no consultation whatsoever or, maybe even
worse, sending out letters notifying tribes of soon to be
announced policies and calling that action consultation.
On January 3 of this year, the Bureau of Indian Affairs
released a memorandum containing what was called guidance on
taking off-reservation land into trust for gaming purposes. It
instituted a never before discussed or heard of ``commutable
distance test'' to every land into trust application where the
land being acquired is a commutable distance from the current
reservation. Then immediately the next day, several pending
land into trust applications were denied. The very next day.
The BIA can sure move quickly when it wants to. Land into
trust applications lie around for years. A new policy--oh,
excuse me, new guidance--is released and bam, the next day
letters go out disapproving several applications.
Now, I am not saying that taking land into trust far from a
reservation is not a valid issue, but there is no law or
regulation opposing it and it is a valid issue for discussion,
for consultation. I cannot say whether or not those
applications were worthy, but I can say that the Indian tribes
who spent time and money on them are worthy of consultation.
Another example of the need for this legislation occurred
when the National Indian Gaming Commission issued proposed
regulations to redefine Class 2 operations without adequate
tribal consultation. The Commission then released an economic
impact study which showed that their proposed regulations would
negatively impact the revenues of Indian tribes.
My understanding is these proposed regulations are even
today still under consideration by the Commission. This
disregard of working with tribes in meaningful--and I stress
meaningful--consultation is not working, and it is not fair.
The Committee has invited the witnesses here today to testify
on this legislation, and I promise you we will listen to what
you have to say and take your positions and recommendations
seriously.
With that, I conclude my opening statement. I see no
Ranking Member on the Republican side, so we will proceed with
the panel.
Our first panel in regard to H.R. 5608 is composed of The
Honorable James Cason, Associate Deputy Secretary, U.S.
Department of the Interior; The Honorable Philip Hogen, the
Chairman of the National Indian Gaming Association; and Mr.
Robert McSwain, Acting Director, Indian Health Service.
Gentlemen, we welcome you to the Committee. We have your
prepared testimonies. They will be made part of the record as
if actually stated, and you will have five minutes to summarize
or proceed as you wish.
I see we have in the audience this morning an old friend,
Tadd Johnson, a former staff director of our Indian Affairs
Subcommittee, as well as the former chairman of the National
Indian Gaming Commission. Tadd is here visiting with his family
from Minnesota. It is nice to see you back, and we welcome you
as well, Tadd.
Statement of The Honorable Nick J. Rahall, II, Chairman,
Committee on Natural Resources
The Committee is meeting today to receive testimony on several
bills of interest to Indian tribes: H.R. 5608, H.R. 3522, H.R. 3409, S.
2457 and H.R. 5680.
H.R. 5608, the ``Consultation and Coordination with Tribal
Governments Act'' is a measure which I introduced with my dear friend
Congressman Dale Kildee.
There is an maxim from ancient Roman law regarding the need for
consultation. I will not attempt the Latin but it translates to--What
touches all must be approved by all.
When it comes to issues affecting Indian Country, it seems almost
everyone, with the exception of the Administration, understands what
this means. It means that Indian tribes are governments and as such
must be consulted with--not dictated to.
My bill simply requires that Federal agencies establish a
consultation process that is to be used prior to taking an action which
would have a direct effect on Indian tribes. It tracks a an Executive
Order President Clinton issued in 2000.
Now I expect we will hear opposition to this bill from the
Administration. That it is too costly, or somehow unworkable,
unnecessary, and generally difficult to implement. Yet, I think tribes
will say that having new mandates forced upon them is costly,
unworkable, unnecessary and generally very difficult to implement.
Throughout history when Indian policy has been made without tribal
input the results have been failure after failure. When Indian tribes
are consulted and a part of the process up front, the results are
successful policies.
I wish it were not necessary to have this legislation. But time
after time, this Administration has set out new policies and mandates
with no consultation what so ever--or maybe even worse--sending out
letters notifying tribes of soon to be announced policies and calling
that action--``consultation.''
On January 3rd of this year, the Bureau of Indian Affairs released
a memorandum containing what was called, ``Guidance on taking off-
reservation land into trust for gaming purposes.'' It instituted a
never before discussed or heard of, ``commutable distance test'' to
every land into trust application where the land being acquired is a
``commutable'' distance from the current reservation.
Then immediately the next day, several pending land into trust
applications were denied. The very next day! The BIA can sure move
quickly when it wants to.
Land into trust applications lie around for years--a new policy--
oh, excuse me, new ``guidance'' is released and BAM, the next day
letters go out disapproving several applications.
Now, I am not saying that taking land into trust far from a
reservation is not a valid issue. But there is no law or regulation
opposing it and it is a valid issue for discussion, for consultation. I
cannot say whether or not those applications were worthy, but I can say
that the Indian tribes who spent time and money on them are worthy of
consultation.
Another example of the need for this legislation occurred when the
National Indian Gaming Commission issued proposed regulations to
redefine Class Two operations without adequate tribal consultation. The
Commission then released an economic impact study which showed that
their proposed regulations would negatively impact the revenues of
Indian tribes. My understanding is these proposed regulations are even
today still under consideration by the Commission.
This disregard of working with tribes in meaningful consultation is
not working and it is not fair.
The Committee has invited the witnesses here today to testify on
this legislation. And I promise you that we will listen to what you
have to say and take your positions and recommendations seriously.
Thank you.
______
The Chairman. All right. Mr. Secretary, do you want to
proceed? We welcome you once again to the Committee.
STATEMENT OF THE HONORABLE JAMES CASON, ASSOCIATE DEPUTY
SECRETARY, U.S. DEPARTMENT OF THE INTERIOR
Mr. Cason. Thank you, Mr. Chairman. It is my pleasure to
come visit again.
Good morning, Mr. Chairman and Members of the Committee. My
name is James Cason. I am the Associate Deputy Secretary at the
Department of the Interior. I am here today to testify on H.R.
5608, which imposes additional requirements upon the
government-to-government consultation policies already adopted
by the Federal government for issues affecting Indian tribes.
The Department strongly supports government-to-government
consultation. However, we strongly oppose this legislation.
I would like to stress that the Department is in compliance
with Executive Order 13175, engaging in both formal and
informal consultation with Indian tribes on a regular basis.
Formal consultation takes place when the Department is
considering new policies or regulations that would have
substantial direct effects on the tribes.
The Department is also guided by a number of issues by
tribal advisory bodies to address tribal specific needs,
including the Bureau of Indian Affairs/Tribal Budget Advisory
Committee and its subcommittees, the Indian Reservation Roads
Program Coordinating Committee, the Self-Governance Advisory
Committee, the Special Trustee's Advisory Board and the
Intertribal Monitoring Association.
The Department's bureaus further take a proactive approach
on reaching out to tribal governments to communicate and work
with them on day-to-day issues and engage in negotiated
rulemaking with Indian tribes where appropriate. Specific
examples are included in my written testimony that has been
entered for the record.
While the Department firmly believes in the need for
dialogue in consultation with Indian tribes, it must object to
this attempt to subvert the tenor and requirements of the
executive order intended only to improve the internal
management of the Executive Branch, and turn it into a
congressional mandate that encourages litigation and creates an
unworkable consultation structure. We do not believe this
legislation is necessary or practical.
H.R. 5608 would be impractical to administer due to its
breadth and impact. The bill significantly alters Executive
Order 13175, which is only intended to provide internal
guidance for Federal agencies. H.R. 5608 would change the
standard of when consultation would be required from
substantial to likely impact, vastly increasing the number of
tribes for which the Department must consult when taking
action. Further, it would broaden the scope of what types of
action would need formal consultation to cover almost
everything any bureau in the Department does.
H.R. 5608 would turn an executive order that specifically
states it is not intended to create causes of action against
the government into a statutory mandate that has the potential
to create massive amounts of litigation. As one involved in
extensive litigation in Indian affairs, I would like to avoid
that if possible.
This legislation fails to take into account the vast
amounts of time, funds and staff resources that would be needed
to engage in formal consultation on every agency action. It
also fails to account for emergency situations and removes the
Secretary's discretion.
In summary, enactment of this bill would result in halting
virtually every action within the Department that involves
Indians. Even executive communication with Congress would be
stifled. For instance, in order to testify on this piece of
legislation if it were enacted, the Department would have to
provide ample opportunity for tribes to provide input and
recommendations on the Department's views on this legislation.
In order to testify, the Department would need to: 1] Send
a Dear Tribal Leader letter to the leaders of 562 Federally
recognized tribes asking for their input and recommendations
before the Department began to formulate its response and
notifying them of at least one consultation session; 2] We
would have to provide the tribal leaders at least 30 days for
tribal comments; 3] We would have to hold a consultation
session, of which tribal leaders request at least 30 days
notice.
We would have to review their comments over the next
several weeks, formulate proposed legislative comments, repeat
Steps 1 through 5, and then send a final Dear Tribal Leader
letter relating the chosen comments and then, finally, wait 60
days from the date of sending the final Dear Tribal Leader
letter before providing legislative comments to this committee,
sometime around August or September of this year, barring any
possible delay from litigation on the matter.
Several months would go by before the Department would be
able to provide a response to proposed legislation or even to
simple congressional inquiries. To put it in real terms, I
would not be able to testify for this hearing until August if
this bill were in effect. Such a formalized system is just
unworkable in practice.
The executive order works well because it provides internal
management guidance. The Department has embraced this guidance
and gone to great effort to implement its terms. In accordance
with the directives of Executive Order 13175, each bureau of
the Department has adopted a consultation policy and, as I
previously mentioned, engages in both formal and informal
consultation with Indian tribes on a regular basis.
There is no need for the executive order to be broadened
nor for it to be enacted into law. We welcome the opportunity
to work with the Committee and Indian Country on improvements
to the consultation process.
This concludes my remarks. I would be happy to answer any
questions the Committee may have. Thank you.
[The prepared statement of Mr. Cason follows:]
Statement of James Cason, Associate Deputy Secretary,
U.S. Department of the Interior, on H.R. 5608
Good morning, Mr. Chairman and Members of the Committee. My name is
James Cason and I am the Associate Deputy Secretary at the Department
of the Interior (Department). I am here today to testify on H.R. 5608,
which imposes additional requirements upon the government-to-government
consultation policies already adopted by the Federal government for
issues affecting Indian tribes. The Department strongly supports
government-to-government consultation, however, we strongly oppose this
legislation.
While the Department firmly believes in the need for dialogue and
consultation with Indian tribes, it must object to this attempt to
subvert the tenor and requirements of an Executive Order ``intended
only to improve the internal management of the executive branch'', and
turn it into a Congressional mandate that encourages litigation and
creates an unworkable consultation structure. We do not believe this
legislation is necessary or practical.
In accordance with the directives of Executive Order (E.O.) 13175,
which this legislation seeks to alter, each Bureau of the Department
has adopted a consultation policy. The Bureau of Indian Affairs (BIA)
developed its policy on December 13, 2000.
I would like to stress that the Department is in compliance with
E.O. 13175. The Department already engages in both formal and informal
consultation with Indian tribes on a regular basis.
Formal consultation takes place when the Department is considering
new policies or regulations that would have substantial direct effects
on the tribes. This type of government-to-government consultation
includes mailing letters to all 562 federally recognized Indian tribes
and asking for their advice on whether action is needed. Tribes
generally have at least 30 days to comment in writing and also have the
option of making comments and suggestions at one or more tribal
consultation sessions. This occurs even before any Notice of Proposed
Rulemaking is published for public comment in the Federal Register.
The Department is guided on a number of issues by tribal advisory
bodies to address tribal-specific needs. These include the Bureau of
Indian Affairs/Tribal Budget Advisory Committee and its subcommittees,
the Indian Reservation Roads Program Coordinating Committee, the Self-
Governance Advisory Committee, the Special Trustee's Advisory Board,
and the Intertribal Monitoring Association. We are in the process of
working with the National Congress of American Indians to create
committees to guide the BIA's modernization initiative.
The Department's Bureaus further take a proactive approach of
reaching out to tribal governments to communicate and work with them on
day-to-day issues. For example, the Fish and Wildlife Service (FWS)
routinely works with the tribes on migratory bird and endangered
species issues. The Bureau of Reclamation has several agreements with
tribes regarding water management issues. The National Parks Service
(NPS) has several Memoranda of Understanding and agreements with tribes
that have historical association with particular units of the park
system. The NPS also regularly conducts meetings with tribes to discuss
issues of mutual concern, including the use of natural resources and
access to sacred sites. The Office of Surface Mining works with tribes
on operational issues and regulatory activities. The Bureau of Land
Management (BLM) consults with Indian tribes on a regular basis
regarding a range of projects and issues, including land use plans and
on-the-ground projects. In particular, the Native American Minerals
Management Group in the Arizona State Office coordinates and consults
with tribes on mineral operations such as leasing and monitoring.
The Department has also engaged in negotiated rulemaking with
Indian tribes where appropriate. For example, negotiated rulemaking was
used by the BIA to develop new rules implementing the Indian Self-
Determination and Education Assistance Act (ISDEA) and the Indian
Reservation Roads programs, by the Bureau of Indian Education to
implement the No Child Left Behind Act, and by the Minerals Management
Service for Indian gas valuation.
H.R. 5608
H.R. 5608 would be impractical to administer due to its breadth and
impact. The bill significantly alters E.O. 13175. It would change the
standard of when consultation would be required (substantial to likely
impact). It would change the scope of what types of actions would need
formal consultation. It would turn an internal guidance that
specifically states it is not intended to create causes of action
against the government to a statutory mandate that has the potential to
create massive amounts of litigation. In addition to exponentially
increasing the number of actions requiring formal consultation, it
fails to account for emergency situations and removes the Secretary's
discretion.
E.O. 13175 requires consultation with tribes regarding
``regulations, legislative comments or proposed legislation, and other
policy statements or actions that have substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.'' In
contrast, H.R. 5608 changes this standard to require consultation for
``any measure by the agency that has or is likely to have a direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes,
such as regulations, legislative comments or proposed legislation, and
other policy statements or actions, guidance, clarification, standards,
or sets of principles.''
H.R. 5608 broadens the scope of when formal consultation is needed
to cover almost everything any Bureau of the Department does. The bill
expands the requirement to consult with Indian tribes to include
guidance, clarification, standards, or sets of principles. This
language is so broad that many day-to-day agency actions would be
affected.
The language of the bill is also too vague and overbroad to provide
sufficient direction to the Department. We understand that many of
these terms are in E.O. 13175, which this legislation tracks, but
ambiguity in a statute is far more problematic than ambiguity in a
document intended for internal guidance. For instance, the term
``accountable consulting process'' does not define to whom the agencies
will be held accountable or in what manner. Litigants could try to
raise arguments about interpretation regarding virtually every phrase
of the legislation in lawsuits to determine what constitutes ``has or
is likely to have a direct effect'', ``tribal implications'', ``fully
considered'', ``ample opportunity'', ``substantial direct compliance
cost'', ``accountable consultation process'', and other terms used in
this bill.
The legislation moreover vastly increases the number of tribes with
which the Department must consult when taking action. Under the
legislation, the Department would be required to formally consult with
any tribe upon which the action has or is likely to have a direct
effect. This is a fundamental and far-reaching change from the wording
of E.O. 13175, which requires consultation, whether formal or informal,
with any tribe upon which the action would have a substantial direct
effect.
The ambiguity in the language and the change in standard would
result in halting virtually every action of the Department. Even
Executive communication with the Congress would be stifled. For
instance, in order to testify on this piece of legislation if it were
enacted, the Department would have to provide ample opportunity for
tribes to provide input and recommendations on the Department's views
on the legislation. In order to testify, the Department would need to:
1. send a ``Dear Tribal Leader'' letter to the leaders of 562
federally recognized tribes asking for their input and recommendations
before the Department began to formulate its response and notifying
them of at least one consultation session;
2. provide the tribal leaders at least 30 days for tribal
comments;
3. hold the consultation session, of which tribal leaders request
at least 30 days notice;
4. review over several weeks the tribal input and recommendations;
5. formulate the proposed legislative comments;
6. repeat steps 1-5;
7. send a final ``Dear Tribal Leader'' letter relating the chosen
comments; and
8. wait 60 days from the date of sending the final ``Dear Tribal
Leader'' letter before providing the legislative comments to the
Committee this August barring a possible delay by any litigation on the
matter.
Several months would go by before the Department would be able to
provide a response to proposed legislation or even to simple
Congressional inquiries. Such a formalized system is unworkable in
practice.
Exigent Circumstances
The legislation also does not make an exception for emergency
situations. Section 2(1)(D) requires the Department to wait 60 days
after written notification to tribal officials before taking any
action. The Department's agencies would be left with no ability to
bypass consultation in exigent circumstances such as a forest fire that
threatens human lives or trust resources as happened in southern
California this summer. Quick action by the BLM, the BIA, and other
agencies minimized the fire damage, protected sacred cultural and
tribal governmental sites, and provided housing and emergency services
to tribal members and the affected public. The Department would be
faced with either not protecting the public and tribal resources or not
complying with this Act.
Cost
The cost of implementing this bill would be prohibitive. Formal
consultations are very expensive to conduct. They involve substantial
travel and lodging costs for Federal employees as well as costs to host
and conduct the meetings. Significant costs associated with meetings
included numerous individual and follow up meetings with tribes, rental
of meeting rooms, travel, and technical expertise.
The Trust
The legislation also appears to remove or diminish the Secretary's
discretion and in fact, in some cases, to upend the trust relationship.
The Secretary manages trust assets not only for Indian tribes, but also
to individual Indians. It is possible for the interests of an
individual Indian to run counter to the interests of his or her tribe.
It is part of the Secretary's responsibility to balance these competing
interests. H.R. 5608 would unavoidably tilt this balancing act by
mandating consultation with tribes in formulating policies, even where
those policies pertain primarily to individual Indians. This would pose
a clear conflict.
In addition, there are also instances in which an individual Indian
will petition the Department for relief from the actions of that
individual's tribe. H.R. 5608 would greatly complicate the Department's
ability to act as a facilitator in those situations if the Department
is required to formally consult with the Tribe that has taken the
actions from which the individual is seeking redress.
Exposure of Confidential Information
Key government concerns and interests, potentially including Indian
trust data policies, could be exposed to the public under the proposed
legislation as it fails to exempt confidential policies from
disclosure. For example, the Minerals Management Service's Minerals
Revenue Management (MRM) program collects, accounts for, and
distributes revenues associated with mineral production from leased
federal and Indian lands. Under Section 2(1)(C) of the bill, compliance
targeting methodologies or tolerances could be exposed and thereby
grossly undermine the Department's ability to protect trust assets.
The bill could create a need to consult with tribes on lawsuits in
which a tribe is an opposing party, a co-party or not involved with the
litigation but affected by the litigation in some way, which could
require the government to share privileged legal opinions, litigation
strategies, and risk assessments. Additionally, if the legislation is
followed, the MMS may be required to consult with Indian landowners on
mineral litigation and leases even when there are no Indian minerals at
stake.
Federalism Concerns
We are concerned that the bill creates federalism and separation of
powers problems by intruding into the process for federal policymaking.
By enacting this legislation, Congress would be prohibiting the
Executive Branch from making essential daily operational decisions.
The Department of Justice has long noted that legislation
containing ``specific directives to a particular executive agency to
solicit and consider comments or recommendations from another
agency....clearly constitute[s] an inappropriate intrusion by Congress
into executive branch management and an encroachment on the President's
authority with respect to deliberations incident to the exercise of
executive power.'' Common Legislative Encroachments on Executive Branch
Authority, 13 Op. O.L.C. 248, 253 (1989). It has also stated that the
Executive Branch should object to legislation such as H.R. 5608 that
``unnecessarily interferes with the flexibility and efficiency of
decision making and action,'' such as legislation attempting ``to
dictate the processes of executive deliberation'' or ```micromanaging''
executive action.'' The Constitutional Separation of Powers Between the
President and Congress, 20 Op. O.L.C. 124, 135 (1996). Such legislation
``threaten[s] the structural values protected by the general separation
of powers principle'' and ``undercuts the constitutional purpose of
creating an energetic and responsible executive branch.'' Id. H.R. 5608
is inconsistent with these core separation of powers principles and
purposes.
Conclusion
The Department of the Interior is strongly opposed to the enactment
of H.R. 5608. Not only will it substantially increase litigation
against the Federal Government, it fails to take into account the vast
amounts of time, funds, and staff resources that would be needed to
engage in formal consultation on every agency action.
The Executive Order works well because it provides internal
management guidance. The Department has embraced this guidance and gone
to great effort to implement its terms. There is no need for the
Executive Order to be broadened, nor for it to be enacted into law. We
welcome the opportunity to work with the Committee and Indian Country
on improvements to the consultation process.
This concludes my remarks. I will be happy to answer any questions
the Committee may have. Thank you.
______
The Chairman. Chairman Hogen?
STATEMENT OF THE HONORABLE PHILIP N. HOGEN,
CHAIRMAN, NATIONAL INDIAN GAMING COMMISSION
Mr. Hogen. Good morning, Mr Chairman. I would like to
acknowledge the presence of Commissioner Norm DesRosiers, Vice
Chair of the Commission, who accompanied me here this morning.
I appreciate the opportunity to offer the NIGC's views on this
proposed legislation.
I grew up in Kodoka, which is seven miles north of the Pine
Ridge Reservation out in South Dakota. We had an old gunsmith
there by the name of Pete Stout, and one of the things that
Pete used to say was it is a mighty mean man that won't sign a
petition. It is kind of with those kinds of feelings that I say
I can't embrace this legislation that would enhance
consultation.
Consultation is important, and we at NIGC do think as much
of it as anybody does. It is probably not a perfect process,
but I think it is effective, and I think if you make it too
complicated, and I would identify with the remarks that
Assistant Secretary Cason has made. If you get too many rules,
you will just bring the process to a halt.
I would like to basically share with the Committee how we
go about consultation at NIGC. We obviously have a multitude of
issues that we deal with. We only have 230 tribes that are
actually engaged in gaming. We don't have 562 that we do
business with every day, but we obviously can't go to all of
those reservations on every issue that arises before us, and so
we try to schedule regional consultations on a regular basis,
trying to coordinate those meetings when tribes are gathered
together for other purposes, like they will be meeting out in
San Diego, the National Indian Gaming Association meeting later
this month, and they will be out in Reno for the NCAI meeting.
We send letters. We identify the issues that we would like
to discuss and invite tribes to come speak with us. Many tribes
accept those invitations. Many do not. We attempt to
accommodate their schedules as we do that. We sit down. We try
to tell them what we are doing, and we invite their views on
the topics.
Occasionally, we will schedule a session that will be
specific to one particular issue. This gaming classification
issue that, Mr. Chairman, you mentioned in your opening
remarks, is one of those. We did over 60 consultations, I
think, with respect to that. All of those were on the record.
We have the transcripts of those consultations on our website.
But government requirements that sometimes agencies be
nimble and to go out and do 60 consultations on each and every
issue or more are impractical, and I am afraid that requiring
this and giving a cause of action if there is a challenge to
the quality of the consultation would be very problematic.
I think the concern the tribes often have with NIGC, more
so than did we adequately consult, was that we didn't agree
with everything they said when we did consult, and I don't
think that you can condemn the process just because the NIGC
didn't agree.
I think we did consult, and we often are sympathetic to
their points of view. I would like to see tribes make as much
money as they possibly can gaming and not have to send the
states a nickel, but we have statutory rules we have to apply,
and sometimes we can't then go where they would like us to go
in doing that. We have honest disagreements with respect to how
that works.
The legislation also references unfunded mandates. Well,
NIGC is, I think, qualitatively distinguishable from agencies
like HUD and maybe BIA in terms of the programs that they
conduct for the benefit of Indian people, building houses or
providing roads, and things of that nature.
We are a regulatory agency. Now, we ought to consult with
the tribes when we make the rules, and when it comes to time to
actually apply those rules, I don't think you can hold a
consultation each and every time that you make a decision that
would in effect adjudicate some of those issues that are before
us, and I am not sure that under the bill as drafted that is
adequately distinguished.
So as I said, we do a lot of consultation. We have, I
think, an effective policy. It is probably not perfect and we
will try to do better, but if our hands become tied and we get
sued every time somebody questions whether the consultation was
adequate, I think things would grind to a halt.
That wouldn't be good for Indian gaming. It wouldn't be
good for Indian Country. It wouldn't be good for Indian people.
But we certainly are supportive of the concept and attempt to
adhere strictly to the executive order and our adopted
consultation policy.
Thank you, Mr. Chairman. I would be happy to try and
respond to any questions you might have.
[The prepared statement of Mr. Hogen follows:]
Statement of Phil Hogen, Chairman,
National Indian Gaming Commission, on H.R. 5608
Chairman Rahall and members of the Committee: Thank you for
allowing me to speak with you today. I am Phil Hogen, Chairman of the
National Indian Gaming Commission. I am here to comment on H.R. 5608, a
bill to establish regular and meaningful consultation and collaboration
with tribal officials.
H.R. 5608 identifies NIGC, the Department of the Interior and the
Indian Health Service as agencies requiring an accountable consultation
process. Without a doubt, the need for tribal consultation applies to
many federal agencies and programs, and certainly--and prominently--to
the work of the National Indian Gaming Commission (NIGC).
NIGC is firmly committed to the consultation process. The agency is
strongly opposed to this bill, however.
In keeping with the obligation to consult, NIGC adopted its
consultation policy in early 2004 and published it in the Federal
Register. A copy is attached. This policy was itself a product of the
Commission's consultation with tribes as it was formulated. In the
course of formulating this policy, NIGC also gathered and examined the
consultation policies of other federal agencies, and discussed the
utility of those policies with those agencies.
The question that the bill seeks to answer, I believe, is what kind
of consultation constitutes adequate, accountable consultation. This
bill does not answer that question, and it certainly does not answer
the question as to how the NIGC, a regulatory agency, can meet these
new consultation responsibilities while at the same time effectively
fulfilling its statutory obligations under the Indian Gaming Regulatory
Act. In fact, it is our firm belief that enactment of this legislation
would eviscerate the agency's good faith ability to regulate.
We continue to seek consultation in the most effective ways. While
there are 562 recognized tribes in the United States, only about 230
are engaged in Indian gaming, and so it is that group to whom the NIGC
has most often turned for consultation. The great breadth of tribal
diversity is reflected in their varying cultures, economies, and
geography. They vary from having large land bases to small, large
tribal membership to small, urban settings to rural. Some are found in
jurisdictions where there is much non-tribal commercial gaming and
others where gambling opportunities are almost exclusively tribal.
Thus, the Commission quickly learned that a position or policy favored
by tribes with small land bases and memberships, located where huge
urban populations make for great market opportunities, will not
necessarily be favored by tribes with large tribal memberships and
large, remote, rural reservations near no large population centers.
It is not possible, of course, for the Commission to visit every
tribe on its reservation each time an issue or policy might affect
tribes. Gaming tribes have formed regional gaming associations, such as
the Great Plains Indian Gaming Association (GPIGA), the Oklahoma Indian
Gaming Association (OIGA), the Washington Indian Gaming Association
(WIGA), the California Nations Indian Gaming Association (CNIGA), the
Midwest Alliance of Sovereign Tribes (MAST), and the New Mexico Indian
Gaming Association (NMIGA), among others, as well as national
organizations such as National Indian Gaming Association (NIGA),
National Congress of American Indians (NCAI) and United South and
Eastern Tribes (USET). Those organizations meet annually or more often,
and NIGC has taken those opportunities to invite tribal leadership to
attend consultation meetings on a NIGC-to-individual-tribe basis.
Consulting at gaming association meetings maximizes the use of the
Commission's time and minimizes the travel expenses that tribes, who
ordinarily attend those meetings anyway, must expend for consultation.
Many tribes accept these invitations, many do not. Some tribes send
their tribal chair, president or governor, and members of their tribal
council, while others send representatives of their tribal gaming
commissions, or in some instances staff members of the gaming
commissions or of the tribal gaming operations. The consultation
sessions are always most effective when tribal leadership, by way of
tribal chair or council, is present. The letters of invitation, samples
of which are attached, identify issues on which NIGC is currently
focusing and about which the agency is seeking tribal input. The
letters always include an invitation to discuss any other topics that
might be of particular interest to an individual tribe. Some tribes
have limited their consultations to a single issue, such as NIGC's
proposals to better distinguish gaming equipment permissible for
uncompacted Class II gaming from that permitted for compacted Class III
gaming.
We do not only make ourselves available for numerous consultations,
but we also listen seriously to what we hear at those consultations.
The regulations NIGC adopts are published with thorough preambles,
which attempt to summarize all of the issues raised in the government-
to-government consultation sessions the Commission has held with
tribes, as well as those raised by all other commenter's providing
written comment, during the comment period on the regulation. I have
attached the preamble from the Commission's recently adopted facility
license regulation as an example.
The NIGC does not believe its current consultation practices are
perfect, but we do believe that they are effective. We also believe
that consultation should not mean agreement and that the parties
consulting should not measure the good faith or effectiveness of the
consultation by whether agreement is reached. Experience has shown that
there is little or no clamor for consultation if the action being
considered is favorably received throughout the Indian gaming industry.
NIGC's recent reduction in the fees it imposes on gross gaming revenues
to fund NIGC operations provides such an example.
On the other hand, if the issue the agency is considering is viewed
as problematic, often there are concerns expressed that consultation
has been inadequate. A further challenge the NIGC has observed is that
consultation is most often criticized by tribes when the eventual
policy that the agency settles on is at odds with the position
expressed by tribes during consultations. That is, the NIGC's failure,
from the tribal point of view, was not in the consultation per se but
rather that the Commission did not agree with tribal points of view. It
does not seem fair or just that the only consultation deemed adequate
is that in which the Commission always fully comports with tribal
points of view. NIGC often finds itself sympathetic to tribal points of
view, but it is also bound by statutory constraints. For example the
Indian Gaming Regulatory Act's characterization of a number of gambling
practices as Class III requires the sanction of tribal-state compacts.
I am fearful that if legislation such as H.R. 5608 is enacted,
nearly every policy adopted by the National Indian Gaming Commission
will be subject to challenge in court by one of the 230 gaming tribes
on the basis that the regulation was not supported by consultation. I
am also fearful that the Commission's mission of providing the gaming
regulation mandated in IGRA will be overwhelmed by such litigation.
A problem created by the proposed legislation is distinguishing
``policies that have tribal implications'' from those that do not. In
the legislation, the former are defined as:
any measure by the agency that has or is likely to have a
direct effect on one or more Indian tribes, on the relationship
between the federal government and Indian tribes, or on the
distribution of power and responsibilities between the federal
government and Indian tribes, such as regulations, legislative
comments or proposed legislation, and other policy statements
or actions, guidance, clarification, standards, or sets of
principles.
It would seem that this would leave precious little for a
regulatory agency such as the NIGC to do without first engaging in
consultation. Determining the extent of the consultation that would be
adequate likely would be problematic too.
An example of this would be the agency's position on this
legislation. The Office of Management and Budget coordinates the views
of the federal family on legislation that impacts the administration.
On March 25, 2008, OMB asked the NIGC to provide its views on H.R. 5608
within the remainder of that week. Needless to say, if H.R. 5608 were
the law of the land, doing so would have been impossible given the
requirement that consultations must first occur. Questions that the
proposed bill also leaves unanswered are: How long would such
consultation take? How many tribes would have to be consulted? Where
would that consultation best occur? How would that consultation be best
documented?
Next, with respect to the application of consultation requirements,
I think it is appropriate to draw distinctions between federal agencies
and their functions. If a federal program will build homes on Indian
lands for Indian people, certainly extensive consultation ought to
occur with respect to the implementation of such meritorious programs.
That federal activity, however, I believe, can be qualitatively
distinguished from the regulation or oversight that an agency such as
the National Indian Gaming Commission is mandated to provide.
While the following example is perhaps too stark, it may have some
application here. To require that before the basketball referee calls a
foul or charges a player with ``traveling,'' it would probably be
impractical and of questionable fairness if on each occasion he or she
had to first hear the point of view of the player on whom the foul or
the traveling was called, and of course, in fairness, to hear from the
opposition, and then the coaches of both teams. As the rules of the
game are written, those who participate ought to be invited to the
table to discuss them. However, in the application of those rules,
consultation is inappropriate and certainly impracticable, and I am
concerned that similar constraints on regulatory agencies, which might
be imposed by H.R. 5608, ought to be avoided. The definition found in
section 2(4), ``Policies that have tribal implications,'' would require
clarity and need to clearly distinguish the adjudicative functions of
regulatory agencies from the rulemaking they conduct.
Similarly, section 6, addressing unfunded mandates, would pose
great challenges to those who make rules that relate to commercial
enterprises, such as tribal bingo halls and casinos. If the National
Indian Gaming Commission imposed a regulation that required
surveillance cameras to be placed over the counter of the cashiers that
count the money at the gaming facility, under an enacted H.R. 5608, a
tribe might argue that such surveillance could not be so required,
unless the federal government paid for the cameras. First, NIGC does
not use federal taxpayers' dollars. Instead, the agency's activities
are supported by fees on the tribes; as a result, requiring federal
payment of a regulatory cost does not work in the context of NIGC's
budgetary status. Furthermore, it is not appropriate with respect to
regulatory requirements for commercial activities such as gaming, which
the NIGC helps regulate under IGRA.
Finally, administrative agencies are peculiar in that they exercise
quasi-executive, quasi-legislative (rulemaking) and quasi-judicial
(adjudication) functions. Reduced to essentials, rulemaking is the
adoption of regulations that have the force and effect of law,
adjudication is the application and further interpretation of those
rules in particular cases in dispute. Fair process is required for each
of the processes, but nowhere in the Administrative Procedure Act,
which is a remarkable and proven body of law by which our federal
government has successfully operated for over 40 years, are there any
constraints similar to those which would be imposed by H.R. 5608.
There is a history to the development of consultation. That the
United States has trust obligations to Indian tribes is recognized
explicitly in many treaties. Chief Justice John Marshall, in his famous
trilogy of opinions written in the 1830s, characterized the
relationship generally as that of a guardian and ward. While the United
States is not a common law trustee, the federal-tribal relationship is
in fact a government-to-government relationship, and as the United
States fulfills its role in that relationship, it needs to bear its
obligations in mind. The world has changed much since Chief Justice
Marshall's time, and not the least of these changes is the positive
movement by tribes toward self-determination and self sufficiency. In
recent decades, federal Indian policy has fostered that evolution.
The United States, of course, needs to consider the needs and
desires of tribes, and as tribes attain greater political and economic
stability, the greater the deference the United States ought to afford
their expressions of need and desire. What this means, of course, is
that the federal government ought to consult with tribes as it
formulates and executes policies that impact those tribes.
President Bush reiterated the Administration's adherence to a
government-to-government relationship in his Memorandum for the Heads
of Executive Department and Agencies in September 2004. E.O. 13175
directs federal agencies to conduct meaningful government-to-government
consultation with tribes when policies that affect them are formulated.
Challenges to such policies cannot legally be founded on perceived or
alleged shortcomings of the consultation process attending those
policies. This legislation, however, would require a degree of
collaboration with the regulated community (Indian gaming tribes) that
is wholly inconsistent with a robust and healthy regulatory mission
such as NIGC's.
Thank you for the opportunity to present the Commission's view on
H.R. 5608. We stand ready to answer any questions.
[NOTE: Attachments submitted for the record have been retained in
the Committee's official files.]
______
The Chairman. Mr. McSwain?
STATEMENT OF ROBERT McSWAIN, ACTING DIRECTOR,
INDIAN HEALTH SERVICE
Mr. McSwain. Mr. Chairman and Members of the Committee,
good morning. I am Robert McSwain, the Acting Director of the
Indian Health Service. I am pleased to have the opportunity to
testify on H.R. 5608, a bill to establish regular and
meaningful consultation in collaboration with tribal officials.
We are the Indian Health Service, and I think the first
thing that embodies our relationship with the tribe is our
mission. The mission of the Indian Health Service, in
partnership with American Indian and Alaska Native people, is
to raise their physical, mental, social and spiritual health to
the highest level possible, so our partnership with tribes is
embodied in our basic mission.
Now to H.R. 5608. The IHS strongly opposes this bill
because it adds unnecessary administration burden that would
divert resources from the provision of health care services. As
set forth in my prepared statement, H.R. 5608 is overly broad
in scope, in defining policies that have tribal implication,
leaves little or no discretion to the IHS Director by making
all agency decisions subject to tribal consultation and
formalizing all contacts between tribes and the IHS, thereby
diverting limited resources away from the mission of health
care.
On the other hand, the bill is too narrow. It only focuses
on the Department of the Interior, the IHS and the National
Indian Gaming Commission. I am aware of certainly a lot of
other departments that are doing great work in consultation
with tribes, and they are omitted.
Consultation between the Department of Health and Human
Services and tribes can be traced back 50 years to Public Law
83-568, known as the Transfer Act. Several references therein
require the Secretary of HEW to obtain the consent of the
governing body of the tribe or its organized council before
closing a hospital or to contract the provision of services
with private or other non-Federal health agencies or
organizations, so we have been duty bound to consult with
tribes for at least 50 years, 50 plus years.
DHHS and IHS consultation with tribes has evolved over the
years and as refinements of consultation policies have occurred
in consultation and collaboration with tribal leaders. Allow me
to quote from the current IHS consultation policy:
``It is the IHS policy that consultation with Indian tribes
will occur to the extent practicable and permitted by law
before any action is taken that will significantly affect
Indian tribes. Such acts refer to policies that have tribal
implications and substantial direct effects on one tribe or
more regarding the relationship between the Federal government
and the Indian tribes or the distribution of power or
responsibility between the Federal government and Indian
tribes.''
Another excerpt: Nothing in this policy waives the
government's deliberative process privilege. For example, in
the instances where IHS is specifically requested by Members of
Congress to respond to or report on proposed legislation, the
development of such responses and of related policy is a part
of the Executive Branch's deliberative process privilege and
should remain confidential.
In addition, in specified instances where Congress requires
the IHS to work with tribes on the development of
recommendations that may require legislation, such reports,
recommendations or other products are developed independent of
an IHS position, the development of which is governed by the
Office of Management and Budget Circular A-19.
The IHS consultation policy has been revised on several
occasions. We regularly update as guided by the following
statement from the same policy:
``This circular considers a wide range of needs and unique
characteristics in crafting these guidelines. Therefore, it is
important for the IHS consultation policy to remain dynamic and
be responsive to changing circumstances that affect Indian
tribes. The IHS will seek to integrate its efforts with those
of other Federal departments and agencies. Such
intradepartmental coordination will benefit the Federal
departments and agencies, as well as Indian tribes and the
Indian organization.'' Certainly, the last revision of the IHS
policy expanded on our current process of consulting on the
annual budget process.
The evolution of a tribal consultation in the IHS includes
the establishment of standing committees. I have listed all
those committees but, for the record, we have these standing
committees that advise us on a variety of issues: The Tribal
Leaders Diabetes Advisory Committee, the Health Promotion
Disease and Prevention Advisory Committee, Direct Service
Advisory Committee, et cetera. I won't go through all of them,
but it is in my statement. These are all made up of either
tribal leaders or their designees.
The history of forming tribal-led workgroups, which are
predominantly tribal people, work on a wide range of policy
issues such as resource allocation, methodologies and
organization and structure. The products of these workgroups
are then consulted with all 562 tribes. On the departmental
level, HHS also holds regional consultation sessions, in
addition to a national annual budget and policy consultation
session, to provide opportunities for Indian tribes and HHS
officials to discuss various budget and policies issues.
There are a number of HHS advisory committees throughout
the Department of Health and Human Services. To name just a
few, and I know that you will be discussing this a little bit
more later today on another panel about the Center for Medicaid
and Medicare services, they have a special technical advisory
committee group. Centers for Disease Control just established a
Tribal Consultation Advisory Committee, the HHS American Indian
and Alaska Native Research Advisory Council.
The IHS, and certainly the Department, has put considerable
effort and resources into ensuring that consultation and other
communication with tribes is accomplished to the largest degree
practicable. In closing, the provisions of the proposed bill
clearly are intended to mandate that a high degree of
consultation with tribes should take place.
I am here today to state that the IHS and its parent,
Department of Health and Human Services, routinely undertakes a
high level of appropriate consultation. As such, we believe the
legislation would impose an unnecessary burden and limit the
discretion of the Secretary and the IHS to prioritize health
care to American Indian and Alaska Native people.
Thank you for this opportunity to present on behalf of the
Indian Health Service regarding H.R. 5608. I am pleased to
answer any questions that you may have. Thank you.
[The prepared statement of Mr. McSwain follows:]
Statement of Robert G. McSwain, Acting Director, Indian Health Service,
U.S. Department of Health and Human Services, on H.R. 5608
Mr. Chairman and Members of the Committee:
Good Morning. I am Robert McSwain, Acting Director of the Indian
Health Service. I am pleased to have the opportunity to testify on H.R.
5608.
IHS strongly opposes this bill because it adds unnecessary
administration burdens that would divert resources from the provision
of health care services.
With respect to the scope of the consultation requirements in the
bill, the section 2(4) definition of ``policies that have tribal
implications'' is all-encompassing, thus seemingly removing any agency
discretion from the IHS Director and arguably making all agency
decisions subject to tribal consultation. Under section 4(3) of the
bill, IHS would be required to encourage Tribes to develop their own
policies to carry out IHS programs and IHS would be required to defer
to such policies if they do not violate other laws. Both of these
requirements appear to encroach on the authority of the Executive
Branch. In addition, section 2(1)(D) of the bill requires, without any
exception, that as part of the proposed accountable consultation
process, ``any policies that have tribal implications'' shall not
become effective until at least 60 days after written notification to
tribal officials. This provision imposes a requirement that fails to
consider circumstances, including emergencies, in which waiting 60 days
is not practicable.
Language in Section 6 of the proposed bill is of great concern
given our costs to implement much needed improvements to our financial
systems and the ongoing priority to improve and assure the security of
our IT systems in the implementation of electronic health records and
other health management systems beneficial to both the IHS and tribally
administered health programs. The IHS will not have the funds available
to make these improvements without negatively impacting services
provided to the Tribes.
In the last section of the bill, addressing the process for Indian
tribes to apply for waivers of statutory and regulatory requirements,
the language states a decision should be rendered ``not later than 120
days of receipt of such application by the agency, or as other wise
provided by Federal law or regulation.'' This proposed change would
actually increase the current statutory time limit of 90 days and slow
down the federal response to a tribal request for a waiver.
The IHS Consultation policy provides for consideration of Tribal
interests in Federal decision-making policy while assuring that its
Federally Inherent responsibility is carried out. It also serves all
Tribes regardless of how Tribes choose to have the IHS funded health
services administered to its tribal members--by tribal contract or
compact under the Indian Self-Determination and Education Assistance
Act for all or portions of their health program, or directly by IHS
through the federally operated system.
The IHS provides health services to nearly 1.9 million American
Indians and Alaska Natives. In carrying out its responsibility, the IHS
maintains a unique relationship with more than 560 sovereign Tribal
governments that represent a service population in some of the most
remote and harsh environments within the United States as well as in
modern metropolitan locations such as Anchorage and Phoenix. For all of
the American Indians and Alaska Natives served by these programs, the
IHS is committed to its mission to raise their physical, mental,
social, and spiritual health to the highest level possible in
partnership with Tribes.
The IHS consultation policy was originally developed in 1997 in
response to a 1994 Presidential Memorandum to Heads of Executive
Departments and Agencies, and has been revised in response to the
subsequent Executive Orders on Consultation and Coordination with
Indian Tribal Governments, and tribal government requests for
improvement. The development and revisions of the IHS policy is an
example of Tribal Consultation in action as it has been the product of
a workgroup comprised of Tribal Leaders in collaboration with IHS
federal representatives. The IHS policy on Tribal Consultation was last
revised and published in January 2006. This revision too was
accomplished through a workgroup of Tribal Leaders and IHS
representatives working together to enhance Tribal consultation in
virtually every facet of our interactions with Indian Tribes. The IHS
remains committed to carrying out tribal consultation consistent with
the current Executive Order, Presidential Memorandum, and the
Department of Health and Human Services (HHS) Tribal Consultation
policy. We encourage and facilitate increased Tribal participation and
collaboration at all levels within the IHS system.
The IHS Tribal Consultation Policy describes our commitment to
working in partnership on a Government-to-Government basis with Indian
Tribes. It is designed to enhance collaboration and partnership between
IHS local operating units, Area Offices, and Headquarters and Indian
Tribes to ensure that the requirement for Tribal consultation permeates
the entire IHS system.
The IHS will consult with Indian Tribes to the extent practicable
and permitted by law before any action is taken that will significantly
affect Indian Tribes. This includes policies with Tribal implications
and that have substantial direct effects on one or more Indian Tribes
served by the IHS as a result of their special government-to-government
relationship.
For example, as partners with the IHS in delivering needed health
care to American Indians and Alaska Natives, Tribal leaders and health
program representatives participate each year in an extensive
consultation process as part of IHS' budget formulation activities.
This process begins with IHS staff, Tribal leaders and health program
staff, and Urban Indian health program representatives at each IHS Area
developing recommendations for budget changes linked to health
priorities. Then, at a national meeting of Tribal representatives, a
national set of health priorities and budget recommendations are
developed based on input from each of the 12 Areas, and which are
presented by tribal leadership to the Department at its annual Tribal
budget consultation session. The tribal recommendations guide that
fiscal year's budget priority setting decisions within the IHS and HHS.
On other non-budget matters, Tribal consultation also occurs when
appropriate.
Currently, the IHS has 8 advisory committees and workgroups
comprised of Tribal Leaders and/or their representatives established to
provide input from the Tribal leadership and Tribal community to the
agency. These advisory committees or workgroups are: Tribal Leaders
Diabetes Advisory Committee, Health Promotion and Disease Prevention
Advisory Committee, Direct Service Tribes Advisory Committee, Tribal
Self Governance Advisory Committee, IHS Budget Formulation Workgroup,
Contract Support Cost Workgroup, Facilities Appropriations Advisory
Board. Additionally, a Behavioral Health Advisory Committee is in the
process of being formed.
On the Departmental level, HHS also holds regional consultation
sessions, in addition to the national annual Tribal budget and policy
consultation session, to provide opportunities for Indian Tribes and
HHS officials to discuss various budget and policy issues. There are a
number of HHS advisory committees in which Tribal officials and
authorized staff participate to communicate their interests and provide
Tribal input: Center for Medicaid and Medicare Services Tribal
Technical Advisory Group; Centers for Disease Control's Tribal
Consultation Advisory Committee; and the HHS American Indian/Alaska
Native Health Research Advisory Council. The IHS and HHS have already
put considerable effort and resources into assuring that consultation
and other communication with Tribes is accomplished to the largest
degree practicable.
We believe the IHS Tribal Consultation policy and practices in
place are an open, collaborative and effective communication process
that have greatly enhanced the capability of the IHS and Tribally
operated health programs to work in partnership to make the best
possible decisions. The bill under consideration by this committee is
significant and very broad in its scope and, while well intended, would
place unnecessary burdens and costly undertakings on the IHS that would
serve to divert resources away from needed health care services to
implement these activities.
In closing, the provisions in the proposed bill clearly are
intended to mandate that a high degree of consultation with Tribes
should take place. The IHS routinely undertakes a high level of
appropriate consultation. As such, we believe this legislation would
impose an unnecessary burden and limit the discretion of the Secretary
and the IHS to prioritize health care to American Indian and Alaska
Native people.
Thank you for this opportunity to present on behalf of the IHS with
regard to H.R. 5608. I am pleased to answer any questions that you may
have.
______
The Chairman. Thank you.
No opening statement?
[No response.]
The Chairman. Thank you, gentlemen, for your testimony.
Let me begin with Mr. Cason. You testified that ``formal
consultation takes place when the Department is considering new
policies or regulations that would have a substantial, direct
effect on the tribes.''
My question is, would you describe in detail the
consultation process that occurred in the development of the
January 3, 2008, guidance for taking off-reservation land into
trust?
Mr. Cason. Well, Mr. Chairman, we had the consultation
policy when we adopted the underlying regs, which were the 25
C.F.R. 151 rules. That went through a formal rulemaking process
and was adopted.
The guidance that came out on January 3 was a further
elaboration of one of the provisions of the rules. I don't
remember exactly, but I think it was 25 C.F.R. 151.11 or .12,
somewhere in that, and that basically said that part of the
rule basically says that as the distance grows away from the
reservation, the Department will give more consideration to the
implications of the distance.
It was unclear in the context of Section 20 of IGRA for
two-part determination cases or applications how to apply that
specific regulatory provision, and in the course of months of
discussing it within the Department and in visiting with
various Indian tribes, both of whom already have gaming and
those who don't have gaming, the Department finally settled in
on guidance that adopted the provision that you referred to
earlier, which was the commuting rule.
That basically said as a Department, as a policy, as
guidance, that we wanted to have more continuity between the
ability for tribal residents to actually work in casinos
sponsored by the tribe rather than just approach an income
stream from anywhere in the country.
So the result of the process was one that has been over the
long term looking at the comments on Indian gaming and
consultation with a lot of individuals and tribes that are in
the Indian gaming to arrive at a conclusion about how we would
deal with that aspect of the rules.
The Chairman. You testified that you think the legislation
is overly broad. This committee does not want, of course, to
prevent emergency actions or to disclose confidential
information. What we want, of course, is to ensure that
consultation occurs.
So I would like for you to explain how you think the bill
should be amended to allow the Department to act in emergency
situations and to prevent the disclosure of confidential
information.
Mr. Cason. Well, Mr. Chairman, my reading of the bill and I
think in consultation with the various parties within Interior,
this bill would basically create an impasse in the decision-
making process because it is laden with a very formal, time-
consuming approach to deal with the bills.
As we do consultation, and I personally have been involved
in many instances which I would call consultation, we basically
approach consultation from a standpoint of what is involved,
how material is it, how broad of an impact does it have, how
many tribes are affected by it, how quickly we have to provide
answers or make decisions, and all of those factors and others
will dictate how you approach consultation.
We currently do a lot of consultation within the
Department, and on an emergency situation, as you mentioned,
often you have very little time to deal with that. In an
emergency situation, you have to make a decision about to whom
I have to talk, how do I get it done quickly. The formal
structure in this bill doesn't provide for that.
I would like to echo a comment made by Chairman Hogen as
well. It has been my experience in having consultation sessions
that there is a profound difference in how we view consultation
versus some in Indian Country, which is--consultation to me is
basically where we solicit the views of those people we are
interacting with that would be affected by our rules and that
we take those views into consideration along with all of our
statutory and regulatory requirements and statutory
requirements, but it does not mean that we have consensus on or
agreement on everything before we move forward.
It has been my experience in the past dealing with
consultation, and I will refer the Chairman back to an effort
we made early in the Administration on consulting on
organizational proposals for BIA, we spent a year working with
Indian Country, a tribal group, two representatives from every
region. We met every month for two or three days for almost an
entire year, and at the end of that process, when we didn't
agree on all terms, we were given no credit for consulting at
all because we hadn't agreed on everything.
So it doesn't mean agreement on everything. It means
soliciting views so you are fully informed.
The Chairman. OK. I understand consultation does not mean
agreement on everything, but consultation should also be
meaningful and it should make those tribes with whom you
consult feel like their input has been heard.
Mr. Cason. Well, Mr. Chairman, I would agree with you. It
needs to be meaningful, and I think we do enter into meaningful
discussions, but there are some limitations on that, again as
Chairman Hogen mentioned.
Let me give you an example. I personally have sat with the
BIA Tribal Budget Committee through many meetings. I probably
did eight or 10 of those on a quarterly basis and, in the end,
the Tribal Budget Committee was very frustrated with the
consultation that we would do over the course of a day or a day
and a half each quarter to talk about our budget structure.
The feeling that they had was this isn't real consultation
because we really don't affect the budget in a material way
because Congress ultimately sets the budget. The Administration
asks for a particular budget, and there is a pervasive sense of
greater need in Indian Country than our budgets really support.
So we do end up having consultation, but there are
limitations that are based in statute or regulation or their
budget structure that doesn't allow us to meet Indians all the
way to where they want to be, and that is just a reality of the
system we have.
The Chairman. OK. Let me ask Chairman Hogen. Does the
Commission believe that Executive Order 13175 applies to it? If
not, could you please explain your Commission's consultation
process?
Mr. Hogen. The executive order contains an exemption for
independent regulatory agencies, and I believe at the time it
was written, the decision or position was taken at NIGC this
doesn't apply there.
When I came on the Commission as Chair, together with
Commissioner Choney and Commissioner Westrin, we decided
whether it applies or not, we sure should have a consultation
policy, so we consulted with tribes to develop one and we
adopted one, as published in the Federal Register. It has been
provided to the Committee.
There has never been a legal interpretation--that is a
court decision, as to whether it does or doesn't apply, but
there is that exemption for regulatory agencies that I think is
appropriate, but we have adopted a consultation policy, and so
I think it is kind of a moot question.
The executive order of course doesn't give standing. That
is, we or any Federal agency can't be sued for violating that
in terms of the impact or the effect of the action that we
might have taken, but rather it is advisory. It gives guidance.
That is what our policy does.
The Chairman. The tribes have indicated that the Commission
met with tribal advisory groups and tribes on regulations that
were proposed and rejected in 2006.
Does the Commission consider the meetings with tribes and
tribal advisory groups on prior proposed regulations that were
rejected as consultation on the proposed regulations published
in November of 2007?
Mr. Hogen. I think, if I understand what you are talking
about, is that the regulations we have long been considering
and have gone forward with, the set of proposed regulations
then based on the consultation, withdrew them, replaced them
with a new set. Yes. We look back. We look at the record.
Everything that was said from day one on this topic is taken
into consideration.
Now, as the composition of the Commission changes over the
years, I expect some of that gets lost, and it shouldn't take
agencies literally years to adopt regulations if that can be
avoided, but this ongoing, longstanding effort we have been
making to try and draw a brighter line between what equipment
tribes can use to conduct bingo and uncompacted gaming
activities from MAT that requires a compact, that is casino
slot machines of any kind, electronic facsimiles of games of
chance.
You know, we are still doing that, but we take into
consideration as we look at what we have before us, what our
Tribal Advisory Committee that we assembled a number of years
ago said to us about that, what the tribes said to us on the
record when we had those 70 or so on-the-record consultations,
and try to keep those expressed tribal points of view in mind.
We have in fact made significant changes based on those
consultations, and we are not done yet. You know, no rule has
been adopted that flies in the face of what tribes have
expressed in that connection.
The Chairman. You indicate that the Commission consults
with Indian tribes in conjunction with regional and national
tribal organization meetings. Indian tribes contend that these
meetings are extremely short, perhaps only 10 minutes long, and
often several issues are discussed.
How long is the average one-on-one consultation meeting
with an Indian tribe?
Mr. Hogen. I think 45 minutes. Sometimes they extend to an
hour. It depends on how much----
The Chairman. With several issues being discussed? Excuse
me.
Mr. Hogen. Oh, absolutely. That is, typically what we will
do is send a letter and say, these are the things that are on
the front burner at NIGC, and then, as we open the meeting, we
try to review those because we get a variety of people coming
to the consultation meetings.
Sometimes it will be the tribal chair and it will be the
tribal council, and that is absolutely the best quality
consultation that we can have, but often we get somebody who is
just an employee of the tribal gaming commission that is
sitting there with the full National Indian Gaming Commission
and four or five members of our staff, and we block out the
same amount of time for each of those meetings.
Sometimes the attendees are very conversant with the issues
and we don't do much of the talking. We try to do most of the
listening. In other instances, it is educational in that we
share and kind of educate, so to speak, the tribe with respect
to what we are doing, how we are spending their money, and the
discussion then follows.
They take a variety of forms, depending on the attendees
and the issues and, in some cases, we will just cut to the
chase and the tribe will say, ``We don't want to talk about any
of those things. We want to open this new facility. We have
these problems with our environmental impact statement. Can we
talk about that?'' And we do that.
So one size doesn't fit all, and there is great diversity
there, as you know, Mr. Chairman.
The Chairman. So if a tribe sends tribal gaming operation
staff or tribal gaming commission staff to discuss technical
issues at the meeting, has the Commission then ever raised
issues that require tribal consultation with the elected
leaders?
That is, after you have gone through those who you say may
be lesser in rank to the meeting, will you then go and discuss
issues with the tribal leaders still?
Mr. Hogen. Well, we don't always immediately then schedule
a follow-up meeting so to speak, but we do try to convey our
greetings and what we have said to the folks that attend, to
take that back to the tribe, and to tell us more if they have
more to tell us.
Often we will meet more than once a year on similar issues
with a tribe, sometimes with those technical people, later with
the tribal council, sometimes vice versa, but there isn't an
absolute pattern where after we meet with the technicians, so
to speak, we get together with the political leadership.
The Chairman. All right. Let me turn to Mr. McSwain. I
didn't mean to ignore you.
You expressed concerns about the costs necessary to
implement the bill. How much has the Service spent the last
four years on implementing Executive Order 13175? And then I
have a second question. How much do you anticipate the
implementation of this bill will cost?
Mr. McSwain. We don't have cost figures on what we are
currently doing.
I know that all the particular issues that we have posed to
you, Mr. Chairman, that we are doing, we haven't captured all
the costs, but we can certainly submit that cost for the record
because we would have to look at not only our special
consultation sessions, but also our various advisory groups and
the costs associated with that, but I can certainly provide
that for the record.
The Chairman. We would appreciate it. And your estimate of
the cost of the implementation of the current bill?
Mr. McSwain. We are just suggesting that that would in fact
increase because of the increase of the numbers of contacts.
It is a matter of how specific and where you draw the line
in terms of every contact we have because we literally meet
with patients daily. We meet with tribal leaders just weekly,
so where do we draw the line in terms of what constitutes
consultation?
We have had that discussion internal to the Department of
Health and Human Services, and in fact even within the IHS, as
to what constitutes that interaction with the tribe. Is it just
a simple consultation where we sit down and we talk about some
issues that they have specific to their tribe? Does that cover
in terms of accountable consultation?
We think not, but there needs to be a line drawn as to how
we define what the scope of the actual consultation is. When we
know that, then we can calculate what the costs are. Right now,
if we just simply take it at the outside, every contact will be
formalized, as opposed to what we do now.
We have national meetings. I meet with tribal leaders at
national meetings. At what point do you draw the line in terms
of what constitutes ``formalized accountable consultation''?
When we know that, then we can calculate.
The Chairman. OK. The Chair wishes to thank this panel for
being with us today. We do have several more questions, but we
will send them to you. Other Members of the Committee may have
questions as well, and we would ask that you respond to those
written questions in a timely manner.
Mr. Cason. Thank you, Mr. Chairman.
Mr. Hogen. Thank you.
The Chairman. Thank you.
Our next panel is composed of The Honorable Joe Shirley,
President of the Navajo Nation; The Honorable Buford Rolin, the
Chairman of the Poarch Band of Creek Indians; The Honorable
Gerald Danforth, Chairman, Oneida Nation of Wisconsin.
Gentlemen, we welcome you to the Committee on Natural
Resources. We do have your prepared testimony. It will be made
part of the record as if actually read. You may proceed as you
wish.
President Shirley?
STATEMENT OF THE HONORABLE JOE SHIRLEY,
PRESIDENT, NAVAJO NATION
Mr. Shirley. Good morning, Chairman Rahall and Members of
the Committee. Thank you for the opportunity to testify on H.R.
5608. That such legislation is needed is beyond question, Mr.
Chairman.
Chairman Rahall, your legislation would be a welcome change
to what has become the standard Washington refrain. If passed,
H.R. 5608 would for the first time mandate that each agency
develop a policy to engage in meaningful and accountable
consultation. More importantly, this legislation would create
an oversight process to ensure that the Federal agencies comply
with this consultation policy.
The legislation would recognize the relationship between
the Federal government and native nations as one of government-
to-government, that we as tribal governments have a right to
sovereignty and a right to self-determination. It would
recognize that there exists a trust relationship recognizing
treaties, statutes and executive orders, that the Federal
government needs to act in our best interests, that the native
nations need to have a say in the decisions that are made on
our behalf.
It appears to be such a simple proposition. Engage those
who will be affected by policy decisions in the decision-making
process. Mr. Chairman, I commend you for introducing this
legislation, and I support its passage.
The relationship of Native nations to the Federal
government is supposed to be one between sovereigns with
government sitting down with its representatives to engage in
discussions as equals. The concept of the government-to-
government relationship should mean that the Federal government
includes tribal governments in the decision-making process,
that we are heard and listened to and that our opinions and
concerns have meaning.
This concept should embrace the belief that Native
Americans and tribal governments probably understand better
than someone sitting in an office a thousand or more miles away
what our needs are, where our money can best be spent and what
policies would be the most effective.
Of course, participation through a tribal consultation
policy does not necessarily equate to meaningful consultation.
At present there is little meaningful consultation with tribal
governments. Decisions are made routinely in Washington that
affect the daily lives of Native Americans. We are left to
adapt to the vacillating policy choices made by Washington
bureaucrats, regardless of our individual needs or priorities.
Unfortunately for most tribal governments, adapting to
these changes usually means that we make do with less as our
needs continue to grow. The worst of all situations is when
tribal delegations are convened to inform us of a decision
already made just so that the agency can check off its tribal
consultation box.
One need only to look to the BIA Tribal Budget Advisory
Council to see the ineffectiveness of tribal consultation.
Several times each year, tribal leaders gather around the
country to discuss our budgetary needs and priorities with BIA
officials. This process culminates each year with a meeting in
a Washington area conference facility. Our tribal leaders come
in to ask the BIA for help to protect our resources, our
culture, our existence.
When tribal leaders pour out their hearts talking about the
needs of their people, BIA bureaucrats listen impassively. All
the while, these officials know that the budgetary decisions
have already been made and that consultation is nothing more
than a pretense to be able to say that they have listened to
and took notes, but other priorities govern the process. Even
our people and our culture are threatened.
It is evident other priorities control the process, not the
means that tribal governments put forward. In my mind,
consultation is more than sitting there and listening.
Consultation is acting on the information.
Also, in April 2004, President Bush issued Executive Order
13336. Placed within the context of education, the order
recognizes the unique status of Native nations with the Federal
government, a need for government-to-government relationships
and the right of tribal governments to exercise sovereignty and
self-determination.
The order calls for the creation of an interagency working
group composed of the heads of various Federal agencies to
develop a plan to implement the order, yet even with this
commitment to the educational needs of our children, the
President's budget routinely is not enough for school
construction and education programs for Native American
students.
For decades, American Presidents have paid lip service to
the idea of tribal sovereignty and self-determination.
Definitely, Chairman Rahall, more needs to get done to involve
Native American nations in the decision-making process of the
Federal government, and that includes the budgetary processes.
Thank you.
[The prepared statement of Mr. Shirley follows:]
Statement of Dr. Joe Shirley, Jr., President,
The Navajo Nation, on H.R. 5608
Good morning Chairman Rahall, Ranking Member Young and members of
the Committee. Thank you for the opportunity to testify before you this
morning concerning H.R. 5608, the Consultation and Coordination with
Indian Tribal Governments Act.
As I sit before you today, I am filled with a sense of sadness and
anger that in 2008, one hundred and forty years after the Navajo Nation
signed our treaty with United States, we are forced to discuss the
necessity of legislation that mandates that the federal government
engage in meaningful discussions with tribal governments. That such
legislation is needed is beyond question. Decisions are routinely made
in Washington that effect the daily lives of Native Americans with
little meaningful consultation with tribal governments. We are left to
adapt to the vacillating policy choices made by Washington bureaucrats
regardless of our individual needs or priorities. Unfortunately for
most tribal governments, adapting to these changes usually means that
we make do with less as our needs continue to grow.
The relationship of the Native Nations to the federal government is
supposed to be one of sovereigns. Each government sitting down with its
representatives and engaging in discussions as equals. The concept of
the government-to-government relationship should mean that the federal
government includes tribal governments in the decision-making process.
That we are heard and listened to; and that our opinions and concerns
have meaning. That there is a belief that Native Americans and tribal
governments probably understand better than someone sitting in an
office a thousand or more miles away what our needs are, where money
can best be spent, and what policies would be the most effective. That
we are so often ignored in the decision-making process is insulting
enough. However, when we are forced to gather, hat in hand, to parade
or needs in front of another group of bureaucrats only to have our
requests tossed aside as inconvenient realties, or just another program
that fails to meet certain expectations, is both demeaning and
infuriating. The worst of all situations is when tribal delegations are
convened to inform us of a decision already made just so the agency can
check off its tribal consultation box. After more than 200 years of
failed policies on the part of federal government towards the Native
Nations, I believe we have earned the right through death of hundreds
of thousands of my brothers and sisters to have our opinions concerning
our needs and wishes heard.
In April 2004, President Bush issued Executive Order 13336. The
purpose of this Executive Order was to recognize the unique challenges
faced by Native American students in meeting the demands of the No
Child Left Behind Act. Placed within the context of education the Order
recognized the unique status of the Native Nations with the federal
government, the need for government-to-government relationships, and
the right of tribal governments to their sovereignty and self-
determination. The Order called for the creation of an inter-agency
working group composed of the heads of various federal agencies to
develop a plan that implements the order. Yet, even with this
commitment to educational needs of our children, the President's
budgets routinely give short shrift to school construction and
education programs for Native American students.
In September 2004, President Bush issued a memorandum to the heads
of the executive departments and agencies concerning the government-to-
government relationship with tribal governments. This memorandum did
recognize the unique legal and political between the federal government
and Native Americans, and affirmed the Executive Orders issued by
Presidents Nixon and Clinton concerning self-determination and the need
for consultation and coordination with tribal governments. The
memorandum reiterated a commitment on the part of President Bush to
work with tribal governments on a government-to-government basis
reaffirmed a respect for tribal sovereignty and self-determination. To
that end, the memorandum called for all departments and agencies to
work with tribal governments based on these principles.
The effectiveness of these repeated statements of policy on the
part of the federal government is at best arguable. However, it is
clear that these repeated statements have not gone far enough.
Executive Orders and memorandums do not carry the full force of law.
Presidents for decades have paid lip service to the idea of tribal
sovereignty and self-determination with little practical effect.
However, that is not to say that there has been no progress. Some
departments and agencies have developed tribal consultation policies,
although they have been uneven in their application or adoption across
entire departments we have seen some progress. Both the Department of
Health and Human Services (DHHS) and the Department of the Interior
(DOI) have developed tribal consultation policies to some degree.
The DHHS tribal consultation policy, initiated in 2005, mandated
that all operating divisions within the DHHS develop their own
policies, but not all have done so. The DHHS policy allows tribal
governments to formally engage in annual tribal consultation session
with the DHHS regional offices. The Indian Health Service (IHS) revised
their consultation policy in 2006 to reflect the new DHHS policy; as a
result, there has been greater participation within the budget process.
Of course, greater participation through a tribal consultation
policy does not necessarily equate to meaningful consultation. One need
only look to the Bureau of Indian Affairs (BIA)/Tribal Budgetary
Advisory Council (TBAC) to see the ineffectiveness of tribal
consultation. Several times each year tribal leaders gather around the
country to discuss their budgetary needs and priorities with BIA
officials. This process culminates each year with a meeting in a
Washington area conference facility where tribal leaders come in to ask
the BIA for help to protect our resources, our culture, our existence.
Leader after leader stands before a lectern for their allotted time
giving a short presentation that seeks to encapsulate the effect of
hundreds of years of exploitation and injustice. Each presentation
boils down to the same litany of heartbreaking concerns: a lack of
healthcare for babies and mothers, a lack of resources, no jobs, high
crime, drug and alcohol dependence, not enough schools, not enough
teachers, no water, no food, environmental contamination, the list goes
on and on. While the tribal leaders pour out their hearts talking about
the needs of their people, BIA bureaucrats sit there impassively
listening. All the while, the BIA officials know that the budgetary
decisions have already been made, and that ``consultation'' is nothing
more than a pretense to being able to say that we listened and took
notes but other priorities governed the process. Other priorities. When
our people and our culture are threatened, other priorities reined.
Consultation in my mind is more than sitting there and listening;
consultation is acting on the information.
Chairman Rahall, your legislation would be a welcome change to what
has become the standard Washington refrain. If passed, H.R. 5608 would
for the first time mandate that each agency develop a policy for
engaging in meaningful and accountable consultation. More importantly,
this legislation would create an oversight process to ensure that the
federal agencies are complying with this consultation policy. The
legislation would recognize the relationship between the federal
government and the Native Nations as one of government-to-government,
that we as tribal governments have a right to sovereignty and a right
to self-determination. That there exists a trust relationship
recognized in treaties, statues, and executive orders that the federal
government should act in our best interests. That the Native Nations
should have a say in the decisions that are made on our behalf. It
would seem on its face to be such a simple proposition, engage those
who will be effected by policy decisions in the decision-making
process. I commend you for introducing this legislation and support its
passage.
______
The Chairman. Chairman Buford?
STATEMENT OF THE HONORABLE BUFORD ROLIN, CHAIRMAN,
POARCH BAND OF CREEK INDIANS
Mr. Rolin. Good morning, Chairman Rahall and Members of the
Committee. I am Buford Rolin, Chairman of the Poarch Band of
Creek Indians. I also chair the Tribal Leaders Diabetes
Committee and am Vice Chairman of the National Indian Health
Board.
It is a pleasure for me to be here today to discuss with
you H.R. 5608, a bill to establish meaningful consultation and
collaboration with tribal officials in the development of
Federal policies by the Department of Interior, the Indian
Health Service and the National Indian Gaming Commission.
As Chairman of the Poarch Band of Creek Indians and Chair
of the TLDC, I have personal knowledge of how important it is
for Federal agencies to consult with tribes in the development
of policies that will impact tribal communities. For over 200
years, the United States has interacted with Indian tribes on a
government-to-government relationship. Meaningful consultation
between tribal governments in the United States is an integral
component of this relationship.
The IHS, through consultation with Indian tribes, has
successfully implemented several laws impacting tribal
communities: Titles I and V of the Indian Self-Determination
and Education Assistance Act, the Indian Health Care
Improvement Act and the Special Diabetes Program for Indians.
It is because of tribal consultation that these programs
operate successfully both for the benefit of the Federal
government and the intended tribal communities.
As Chairman of the TLDC, I have had the unique opportunity
to work very closely with Dr. Kelly Acton, Director of the IH
Division of the Diabetes Treatment and Prevention Program, to
oversee the development of many of the culturally sensitive and
appropriate diabetes programs throughout Indian Country.
In 1998, the IHS formally established the TLDC to provide
advice and input on diabetes-related issues. The IHS recognized
from the start of this program that it would have to make
careful choices about the SDPI funding, and knew these choices
would be best made with input from tribal leaders.
Through consultation, the IHS, tribal and urban model
diabetes programs have developed and implemented a variety of
community and education programs that reflect the specific
needs of the local communities. The SDPI has made a difference.
The mean blood sugar level, A1C, in Indian communities has
decreased from nine percent in 1996 to 7.85 percent in 2007
after the SDPI. This is a major achievement because scientific
research shows that a one percent decrease translates to a 40
percent reduction in diabetes-related complications, such as
blindness, kidney failure and amputations.
On December 29, 2007, the SDPI was reauthorized for one
more year, through Fiscal Year 2009, at a funding level of $150
million. On February 7 and 8 of this year, the TLDC met to
discuss and make recommendations to the IHS regarding the new
SDPI funding for 2009. The TLDC recommended that area tribal
consultation be held to seek input on the allocation of funds
for this one year of funding.
We are just getting the results back from the area
consultation meeting, and the TLDC is in the process of making
final recommendations to the IHS as to the distribution of
Fiscal Year 2009 funding.
The SDPI has been a tremendously successful program, and I
believe the major contributing factor to its successes is
because the program was developed and implemented through the
extensive and meaningful consultation process. Consultation
took place at the local tribal level and through close
collaboration between the TLDC and the IHS Division of
Diabetes.
I appreciate that H.R. 5608 has been introduced to
strengthen the Federal government's responsibility to consult
with tribal governments. However, with all due respect, I am
concerned that the legislation as currently drafted only
applies to DOI, IHS and NIGC.
Tribal health programs interact with other agencies within
the Department of Health and Human Services, such as CMS,
SAMHSA, CDC and HRSA. Under the IHS tribal consultation policy,
these agencies have established tribal advisory groups that
provide opportunity for tribal input and advice. However, by
only including IHS in H.R. 5608 and not all of HHS, if enacted
this could send a message to other agencies within HHS that
they are no longer required to consult with tribes.
As Chairman of our tribe, I know there are other Federal
agencies that have tribal consultation policies, such as HUD,
Transportation and EPA to name a few, but H.R. 5608 not
including Federal agencies, I reiterate my concern that their
mission might be interpreted as overriding the tribal
consultation requirement contained in executive orders.
I respectfully recommend that H.R. 5608 be amended to apply
to all Federal agencies, but at a minimum apply to all agencies
in HHS. In the alternative, I recommend a provision be inserted
to clarify that codification of tribal consultation
requirements as to DOI, IHS and NIGC does not abrogate the
responsibility of other Federal agencies to consult with tribal
governments.
I appreciate the opportunity to comment on this bill. Thank
you.
[The prepared statement of Mr. Rolin follows:]
Statement of Buford Rolin, Chairman, Poarch Band of Creek Indians,
Chairman, Tribal Diabetes Leaders Committee, Co-Chairman Tribal
National Steering Committee, Vice Chairman, National Indian Health
Board
Good Morning, Chairman Rahall and Ranking Member Young and members
of the Committee. I am Buford Rolin, Chairman of the Poarch Band of
Creek Indians, Chairman of the Tribal Leaders Diabetes Committee
(TLDC), Co-Chairman of the Tribal National Steering Committee (NSC),
and Vice-Chairman of the National Indian Health Board (NIHB).
It is a pleasure to be here today to discuss with you H.R. 5608, a
bill to establish meaningful consultation and collaboration with Tribal
officials in the development of Federal policies by the Department of
Interior (DOI), Indian Health Service (IHS), and the National Indian
Gaming Commission (NIGC). As Chairman of the Poarch Band and as
Chairman of the TLDC, I have personal knowledge of how important it is
for Federal agencies to consult with Tribes in the development of
policies that will impact Tribal communities.
The United States has a unique legal relationship with Indian
Tribes as found in the U.S. Constitution and reconfirmed and upheld by
U.S. Supreme Court decisions, Federal laws, regulations, and policy.
For over 200 years, the United States has interacted with Indian Tribes
on a government to government relationship. This special relationship
between the United States and Tribes is unlike any other relationship
with other groups of Americans. Meaningful consultation between Tribal
governments and the United States is an integral component of this
relationship.
Pursuant to Presidential Executive Orders, the IHS has a long
standing policy of consulting with Indian Tribes in implementing
federal laws, regulations, and policies, see IHS Tribal Consultation
Policy, IHS Circular No. 97-07. As stated in the IHS policy, one of the
underlying foundations for Tribal consultation is the United States'
moral obligation to promote consultation and participation with Tribal
governments. The IHS, through consultation with Indian Tribes, has
successfully implemented several laws impacting Tribal communities:
Titles I and V of the Indian Self-Determination and Education
Assistance Act (ISDEAA), the Indian Health Care Improvement Act
(IHCIA), and the Special Diabetes Programs for Indians (SDPI). It is
because of Tribal consultation that these programs operate successfully
both for the benefit of the Federal government and the intended Tribal
communities.
As Chairman of the Poarch Band, I have first hand experience as to
how Tribal consultation has contributed to the successful
implementation of the ISDEAA. The Poarch Band is a Self-Governance
tribe that operates the Poarch Band Tribal Health Center in Atmore,
Alabama. The health center provides primary care, pharmacy services,
mental health, community health and a wide range of other services.
Currently over 70 Tribes operate health programs under Title V. The
success of the Tribal Self-Governance program is, in part, due to the
extensive Tribal consultation in implementing the Title V regulations.
The IHS established a negotiated rulemaking committee, consisting of
Tribal leaders and federal officials. Because Tribes sat across the
table from federal officials to draft regulations, Tribal input was
provided in the initial development and continued until the final Title
V regulations were promulgated. Because the Tribes were part of the
regulatory process, the regulations have been implemented in an
efficient and effective manner.
As Co-Chair of the Tribal NSC for the reauthorization of the IHCIA,
again, I know first hand how important Tribal consultation is in the
development of legislation impacting Tribal communities. In 1999, the
IHS formed the Tribal NSC as an advisory group to provide Tribal input
and advice regarding reauthorization of the IHCIA, set to expire in
2000. The NSC, consisting of Tribal representatives from each of the 12
geographic areas of the IHS, drafted the reauthorization bill that
serves as the basis for the IHCIA reauthorization bills, S. 1200 and
H.R. 1328, introduced in the 110th Congress. The Tribal NSC continues
as an effective advisory group providing Tribal input and advice to the
Administration and Congress regarding the IHCIA.
As Chairman of the TLDC, I have had the unique opportunity to work
closely with Dr. Kelly Acton, Director, IHS Division of Diabetes
Treatment and Prevention Program, to oversee the development of many of
the culturally sensitive and appropriate diabetes programs throughout
Indian Country. In 1998, the IHS formally established the TLDC to
provide advice and input on diabetes-related issues. The TLDC's
collaborative effort with the IHS has been an important outcome of the
SDPI. The IHS recognized from the start of this program that it would
have to make careful choices about where to invest the SDPI funds and
knew these choices would best be made with input from Tribal leaders.
Through consultation--the IHS, Tribal and urban diabetes programs
have developed and implemented a variety of community and education
programs that reflect the specific needs of their local communities.
The SDPI has made a difference--the mean blood sugar level (A1C) in
Indian communities has decreased from 9% in 1996 (before the SDPI) to
7.85% in 2007 (after the SDPI). This is a major achievement because
scientific research shows that a 1% decrease translates to a 40%
reduction in diabetes-related complications, such as blindness, kidney
failure, and amputations.
Although the TLDC was established in 1998, it was formally
chartered in June 2007. The charter outlines the role of the TLDC in
providing broad-based advice to IHS on diabetes and related chronic
disease issues. One of the responsibilities of the TLDC is to provide
advice and guidance to ensure the incorporation of appropriate culture,
traditions, and values in the development of diabetes programs,
research and community-based activities.
The TLDC also makes recommendations regarding the distribution of
SDPI funds. On December 29, 2007, the SDPI was reauthorized for another
year--through FY 2009--at a funding level of $150 million. On February
7-8, 2008, the TLDC met to discuss and make recommendations to the IHS
regarding the new SDPI funding for FY 2009. The TLDC recommended that
Area Tribal Consultation be held to seek input on the allocation of
funds for this one year of funding. We are just getting the results
back from the Area consultation meetings and the TLDC is in the process
of making final recommendations to the IHS as to the distribution of FY
2009 funding.
The SDPI has been a tremendously successful program--and I believe,
the major contributing factor to its success is because the program was
developed and implemented through an extensive and meaningful
consultation process. Consultation took place at the local Tribal level
and through close collaboration between the TLDC and the IHS Division
of Diabetes.
Chairman Rahall and Congressman Kildee, I appreciate that H.R. 5608
has been introduced to codify the Federal government's responsibility
to consult with Tribal governments regarding legislation, regulations,
and policies having Tribal implications. However, with all due respect,
I have concerns that the legislation as currently drafted only applies
to the DOI, IHS, and NIGC.
Tribal health programs interact with other agencies within the
Department of Health and Human Services. It is critical that these
agencies consult with Tribal governments because many of these
agencies--Centers for Medicare & Medicaid Services (CMS), Substance
Abuse and Mental Health Services Administration (SAMHSA), Centers for
Disease Control (CDC), Health Resource Services Administration (HRSA)--
implement legislation, regulations, and policies that have major Tribal
implications.
The Department issued a Tribal Consultation Policy, revised
February 1, 2008, requiring all HHS agencies to consult with Tribal
governments. The CMS, SAMSHA, and CDC have established Tribal advisory
groups to provide advice and input to the agencies in implementing
policies impacting Tribal communities. The Tribal advisory groups are
not a substitute for Tribal consultation with over 560 Federally-
recognized Tribes. The Tribal advisory groups are an effective forum
for the HHS agencies to obtain preliminary advice and input from Tribal
leaders with particular expertise.
I have provided good examples of why Tribal consultation is
important and how it can lead to the successful implementation of
Federal programs in Tribal communities. But when Tribal consultation is
not conducted or not conducted in a meaningful manner--implementation
of Federal policy impacting Tribal communities can lead to potentially
devastating results.
I am concerned that by only including IHS in H.R. 5608, and not all
of the HHS agencies, that this could send a message to those other HHS
agencies that they are not required to consult with Tribes. HHS should
be specifically referenced in H.R. 5608. The HHS Tribal Consultation
Policy requires all of the agencies to consult with Tribes in the
development of policies and regulations having Tribal implications--but
the HHS policy is not always followed. Many of the HHS agencies do not
have long standing policies of consulting with Tribes and their process
for obtaining feedback from constituency groups, such as State
governments, have not been modified to include Tribal governments. Of
particular concern are CMS policies and regulations that have Tribal
implications--over 35% of the IHS actives users are Medicare and
Medicaid eligible. The IHS and Tribal health programs are participating
Medicare and Medicaid providers. Unfortunately, the CMS recently
published proposed Medicaid rules, with Tribal implications, without
first consulting with Tribal governments. I have included as an
attachment to my written testimony the Tribal comments submitted
expressing concerns regarding the lack of Tribal consultation in the
development of one of those proposed rules, CMS-2244-P [State
flexibility to impose premiums and cost sharing requirements].
As Chairman of my Tribe, I know there are other Federal agencies
that have Tribal consultation policies, such as the Department of
Housing and Urban Development, Department of Transportation,
Environmental Protection Agency--to name a few. By H.R. 5608 not
including all Federal agencies, I reiterate my concern that their
omission might be interpreted as not requiring Federal agencies (other
than those named in H.R. 5608) to consult with Tribes pursuant to
Executive Orders.
I respectfully recommend that H.R. 5608 be amended to apply to all
Federal agencies, but at a minimum, apply to all agencies in HHS. In
addition or in the alternative, I recommend a provision be inserted to
clarify that codification of Tribal consultation requirements as to
DOI, IHS, and NIGC does not abrogate the responsibility of other
Federal agencies to consult with Tribal governments.
I appreciate the opportunity to comment on H.R. 5608 and I am
available to answer any questions the Committee might have.
Attachment: CMS TTAG letter commenting on lack of Tribal
consultation in publication of Medicaid proposed rule--CMS-2244-P.
______
Tribal Technical Advisory Group
To the Centers for Medicare and Medicaid Services
c/o National Indian Health Board
1940 Duke Street, Suite 200
Alexandria, VA 22314
(703) 486-4706 (703) 486-5717 Fax
March 24, 2008
Kerry Weems, Acting Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-2244-P
P.O. Box 8016
Mail Stop C4-26-05
7500 Security Boulevard
Baltimore, MD 21244-1850
Subject: Proposed Rule: CMS-2244-P
Dear Mr. Weems:
As Chair and on behalf of the Centers for Medicare & Medicaid
Services (CMS) Tribal Technical Advisory Group (TTAG), I write to
express serious concerns regarding proposed rule implementing sections
6041, 6042, and 6043 of the Deficit Reduction Act of 2005 (DRA) and
section 405(a)(1) of the Tax Relief and Health Care Act of 2006
(TRHCA). These sections amend the Social Security Act (SSA) by adding a
new section 1916A to provide State Medicaid agencies with increased
flexibility to impose premium and cost sharing requirements on certain
Medicaid recipients. These regulations were proposed by CMS without
first seeking input from the CMS TTAG as to the effect the proposal
would have on the accessibility of Medicaid services to American
Indians and Alaska Natives (AI/AN), one of the most fundamental
purposes for which the TTAG was created.
The CMS TTAG was established in October 2004 to provide advice and
input to the CMS on policy and program issues affecting delivery of
health services to AI/ANs served by CMS-funded programs, including
Medicaid. For the last four years the TTAG has carried out its
responsibilities as an advisory group by holding monthly conference
calls and three face to face meetings each year. The TTAG has full
participation of its fifteen members, one representative from each of
the twelve geographic areas of the Indian Health Service (IHS) and one
representative from three national Indian organizations, National
Indian Health Board, National Congress of American Indians, and Tribal
Self-Governance Advisory Group. But the TTAG cannot fulfill its purpose
of providing advice to CMS where, as here, the agency failed to bring
the proposed regulations to the TTAG for input and evaluation of the
likely impact they would have on AI/AN Medicaid-eligible individuals.
The CMS TTAG is very concerned with the lack of Tribal consultation
in the development of the proposed rule, CMS-2244-P. The lack of Tribal
consultation is in contradiction to the Department's Tribal
Consultation Policy and the CMS TTAG requests that these regulations
not be made effective until such Tribal consultation consistent with
Department policy is conducted.
Background:
As explained above, the CMS TTAG was established to provide advice
and input to CMS in the development of policy guidance and regulations
that could impact AI/AN access to Medicaid services and the IHS and
tribal programs that participate as providers of Medicaid services
pursuant to section 1911 of the SSA. In 1976, Congress amended the SSA
to provide Medicaid participation and reimbursement authority for
Medicaid services provided in IHS and tribal facilities so that Indian
people could access Medicaid services entitled to them as citizens of
the State where they reside. The IHS estimates that nationwide
approximately 35% of the 1.5 million IHS active users are eligible for
or are Medicaid beneficiaries--in some locations, for instance with 70%
unemployment, this percentage is higher. Over 500 health care
facilities operated by the IHS and tribes and tribal organizations,
pursuant to the Indian Self-Determination and Education Assistance Act
(ISDEAA), are Medicaid participating providers.
In 2007, the CMS TTAG established a Policy Subcommittee to
specifically provide a forum for tribal input in the development of
policy guidance and regulations for having potential impact on AI/AN
Medicaid beneficiaries and IHS and tribal provider of Medicaid
services. The CMS TTAG Policy Subcommittee is not a substitute for
tribal consultation but consists of tribal representatives with
particular knowledge and expertise in Medicaid.
Department Tribal Consultation Policy:
The Department's Tribal Consultation Policy, revised on February 1,
2008, requires each HHS Operating and Staff Division (Division),
including CMS, to establish a process to ensure meaningful and timely
input by Tribal officials in the development of policies that have
Tribal implications. The consultation policy, at Section 4 (B), also
requires that HHS Divisions, such as CMS, not promulgate regulations
that have tribal implications or impose substantial direct compliance
costs on Indian Tribes unless:
1. Funds necessary to pay the direct costs incurred by the Indian
Tribe in complying with the regulations are provided by the Federal
Government; or
2. The Division, prior to the formal promulgation of the
regulation,
a. Consulted with Tribal officials early and throughout the
process of developing the proposed regulation;
b. Provided a Tribal summary impact statement in a separately
identified portion of the preamble to the regulation as it is
to be issued in the Federal Register (FR), which consists of a
description of the extent of the Division's prior consultation
with Tribal officials, a summary of the nature of their
concerns and the Division's position supporting the need to
issue the regulation, and a statement of the extent to which
the concerns of Tribal officials have been met; and
c. Made available to the Secretary any written communications
submitted to the Division by Tribal officials.
Tribal consultation required per the HHS consultation policy:
1. Proposed rules have tribal implications:
The proposed regulations have tribal implications because a
substantial number of AI/AN Medicaid beneficiaries will be subject to
new cost sharing requirements. Like other low-income groups, cost
sharing requirements serve as a substantial barrier to AI/AN enrollment
in the Medicaid program. Imposition of cost sharing requirements on AI/
ANs undermines Congressional intent of ensuring AI/AN access to
Medicaid services in IHS and tribal health care facilities located in
some of the most poor, remote and isolated areas of this country.
Because of the Federal government's trust responsibility to provide
health care to AI/ANs, cost sharing requirements have specific tribal
implications that have not been addressed in the proposed rules.
Because the impact of these proposed rules on AI/AN participation in
State Medicaid programs will vary depending on locality, tribal
consultation with all 561 Indian Tribes is needed to address specific
tribal concerns.
2. Proposed rules could result in compliance costs on Indian Tribes:
The imposition by States of cost sharing requirements on Medicaid
beneficiaries will have adverse consequences on IHS and tribally-
operated health programs in at least three ways: (1) an Indian
beneficiary who is eligible to enroll in Medicaid may be dissuaded from
doing so where a cost is imposed on him/her for such enrollment; and
(2) the IHS or tribal program who services such an Indian patient will
lose access to Medicaid reimbursements for that patient; and (3) even
if the eligible Indian does enroll in Medicaid, the IHS/tribal program
would have to use scarce IHS-appropriated funds to pay the cost-share
amount. Imposing such barriers to Medicaid participation on Indian
beneficiaries and Indian health programs violates the Federal
government's trust responsibility to provide health care to AI/ANs.
While CMS estimates that the proposed rules will result in cost
savings to the Medicaid program, the proposed rules will shift costs to
the IHS--an agency that is currently woefully under funded. It is
irresponsible for CMS to propose such regulations without providing a
mechanism to protect access for Indian beneficiaries for whose health
care needs the United States has full and exclusive responsibility.
Lack of Tribal consultation in development and promulgation of proposed
rule:
Contrary to the HHS Tribal Consultation Policy, the CMS did not
consult with Tribes in the development of these regulations before they
were promulgated. The CMS did not obtain advice and input from the CMS
TTAG even though the TTAG meets on a monthly basis via conference calls
and holds quarterly face to face meetings in Washington, D.C. The CMS
did not utilize the CMS TTAG Policy Subcommittee which was specifically
established by CMS for the very purpose of obtaining advice and input
in the development of policy guidance and regulations.
Contrary to the Department's consultation policy, the proposed rule
does not contain a Tribal summary impact statement describing the
extent of the tribal consultation or lack thereof, nor an explanation
of how the concerns of Tribal officials have been met.
Regulations should not be effective until Tribal consultation is held:
Because CMS failed to comply with the HHS Tribal Consultation
requirements in the promulgations of proposed rule, CMS-2244-P, the CMS
TTAG requests that the proposed rule not be made applicable to AI/AN
Medicaid beneficiaries until such time as CMS consults with Indian
Tribes regarding the impact of these proposed rules on their tribal
members.
In the event, CMS proceeds to make these regulations effective on
Indian tribes, the CMS TTAG strongly urges that the proposed rules be
modified to require State Medicaid programs to consult with Indian
Tribes prior to the development of any policy which would impose any
premium or cost sharing requirements on AI/ANs served by IHS or tribal
health programs.
Conclusion:
The CMS TTAG remains concerned about the lack of Tribal
consultation in the development of other and future proposed
regulations. The CMS did not consult with Tribes regarding proposed
rule CMS-2232-P, [State Flexibility for Medicaid Benefit Packages], and
the TTAG will be submitting comments to these rules as well. A 30 day
comment period for Tribes to comment on Medicaid regulations, that are
comprehensive and have a potentially significant impact on Tribal
communities, is not sufficient. Per the HHS policy, the CMS is required
to consult with Tribes in the early stages and throughout the
development of any regulations with Tribal implications.
Thank you for consideration of our request to delay implementation
of the proposed rules, CMS-2244-P, until Tribal consultation is held.
The TTAG is available to assist with the Tribal consultation process.
The TTAG will continue to work with CMS staff to provide timely and
substantive advice and input regarding these proposed rules, as well as
proposed rules currently under development and rules developed in the
future.
Sincerely,
Valerie Davidson
Chair
cc: Secretary Michael Leavitt
Laura Caliquiri, Director, Office of Intergovernmental Affairs
Dennis Smith, Director, Center for Medicaid Services
Dorothy Dupree, Director, Tribal Affairs Group
Robert McSwain, Acting Director, IHS
CMS TTAG members
______
The Chairman. Chairman Danforth?
STATEMENT OF THE HONORABLE GERALD DANFORTH,
CHAIRMAN, ONEIDA NATION OF WISCONSIN
Mr. Danforth. Yes. Thank you, Chairman Rahall. Good
morning. My name is Gerald Danforth. I am the Chairman for the
Oneida Tribe of Indians in Wisconsin. I am very pleased to be
here with you today to present our viewpoints on H.R. 5608, the
Consultation and Coordination with Indian Tribal Governments
Act.
Since before the formation of the United States, leaders
from the Oneida Tribe have actively engaged in consultation of
our affairs with leaders from other governments--tribal and
nontribal. In one instance, our tribal leaders engaged in
consultation with George Washington during the Revolutionary
War. The outcome of that consultation was favorable to
everybody in the United States.
However, shortly after, that our leaders were engaged in
consultation with some state officials in New York. The outcome
of that consultation was not very favorable to us and is still
yet pending in litigation in the court systems. Since those
early times, we feel the United States has had kind of a rocky
relationship with tribal nations.
Now, more recently, Presidents have begun the issuing of
executive orders--the executive order that is currently in
effect today is an example of that--directing that tribal
governments be consulted with on matters that are being
considered that have an impact on them. We believe that in
light of that, in light of some of the progress that has been
made, that it is proper and it is fitting that Congress move
forward to institutionalize this process.
Well, we think that there are many agencies--Federal
agencies I will say particularly--that do recognize the primacy
of tribal governments, and they interact with Indian nations
accordingly. The measure of effectiveness and the end result of
consultation often has some high and low results. Maybe I
should say perhaps moderate to low results of effectiveness. I
have addressed some of those specific examples in my written
testimony.
I need to be frank. In some of the more recent sessions
that I have participated in with the National Indian Gaming
Commission, too often I have felt that I was there facing a
foregone conclusion. I was expressing concerns when I didn't
feel as though those concerns were being taken as they should
have been.
Now, I don't want to say that suggesting that Chairman
Hogen and the other Commissioners or other staff did not give
due diligence and did not give time and work to those sessions.
They did endlessly, but I think the outcome is what is of
concern.
I don't necessarily fault the Commission for that outcome
because I think it is a process matter. I know that the
consultation that we experience today and involve ourselves in
is up and down the scale, and it depends on who the person is
there consulting that gives you a relevant end result of the
value or effectiveness of that consultation session.
But those negative attributes, those negative things, are
not what I wanted to dwell on here this morning. I really
wanted to focus more on what we think consultation should be.
First of all, tribal governments and matters that affect tribes
are very wide ranging and very unique, most often to the point
where one policy or one rule or one law won't fit every
occasion and every instance but, at a minimum, we think
consultation should begin with the notice of an issue. The
notice of an issue.
Right now we come to the table often with a predrafted
plan, and we are staged at the table almost from the beginning
as adversaries, where we should be looking at the problem and
the issue from the same side of the table. I think effective
consultation would drive us there.
There needs to be meetings following that notice of the
issue to consolidate and gather those impacts from all the
tribes affected. Those things need to be followed up with
discussion, written follow-up and meeting follow-up. The
follow-up from gathering the information, I believe, needs to
then be brought forward to the tribal leaders and is done
currently. It is done in conjunction often with NCAI, with
NIGA, with USET, with the MAST Association, where consultation
sessions get scheduled concurrently with those.
So even though it would be long and it would be kind of
cumbersome to do, the end result is a raised level and raised
value and raised effectiveness of good faith consultation. And
even though that process perhaps seems long and protracted,
which I accept that it is, it is far more better than to have
lengthy and costly litigation.
We believe this bill is an important step forward in moving
us in that direction. This is an important step forward in
building sound government-to-government relationships,
relationships that are ongoing on a recurring basis--I am
checking my time here--and relationships so that when an issue
does come up, we have a process to turn to that is a well-
lubricated working process and it is not something we are
discovering as we are en route to it, a process that produces a
consistent measure and a consistent level of end result.
For example, in Wisconsin, Governor Doyle in Wisconsin five
or six years ago introduced a similar executive order mandate
to all his Secretaries. They have to consult with tribes on
matters that affect them. We do that on a recurring basis every
year, every Secretary. Now, the first couple years were a
little shifty, but eventually these sessions are proving
workable. We are putting the same amount of time into the work.
The end result is better.
Elected leaders come and go. Elected leaders come and go,
so without some consistent framework for a process the measure
of effectiveness goes up and down with those elected leaders.
In fact, this year I will retire this year from my job as
Chairman in Oneida and, in the process, I will be conveying to
my successor things such as what is the status of the Indian
health care bill, NIGC regulations, IHS issues.
Those are all very, very important matters, but in my
estimation nothing--absolutely nothing--is more important than
this process and this bill that is being suggested in this
consultation process. I applaud you, Chairman Rahall, for
taking the initiative to move this bill forward, and
Congressman Kildee as well, for your work.
We have some concerns that have been mentioned already. I
won't repeat them. We have concerns about some of the
litigation and some other things in the bill, but we are
willing to work with it.
We are willing to put whatever work and effort is necessary
to pushing this bill forward and to establishing what we think
will be beneficial for all of the United States and for all
tribes in the United States.
Yawa go.
[The prepared statement of Mr. Danforth follows:]
Statement of The Honorable Gerald Danforth, Chairman, Oneida Business
Committee, Oneida Tribe of Indians of Wisconsin, on H.R. 5608
On behalf of the Oneida Tribe of Indians of Wisconsin, I am pleased
to be with you today to present our views concerning H.R. 5608, the
``Consultation and Coordination with Indian Tribal Governments Act''.
Since before the formation of the United States of America leaders from
the Oneida Tribe have been actively engaged in the consultation of our
affairs with leaders from other governments.
The United States has had a rocky relationship with Tribal nations
since the beginning of development of the federal government and
executive agencies. Only recently, the first Executive Order was issued
directing that consultation with Tribal governments be made respecting
the government to government relationship between the federal
government and Tribes. Each following President has renewed this call
to government-to-government relationships with Tribal governments. It
seems fitting that Congress move to institutionalize this process.
I am very pleased to report that many agencies recognize the
primacy of tribal governments within Indian Country. Most interact with
Indian nations in ways that recognize the roles and authorities
exercised by those nations in service to their citizens and their
environments. We believe that H.R. 5608 takes the next logical step by
clarifying and codifying the true intergovernmental nature of our
relationship consistent with treaty, federal policy, and the intent of
Executive Orders issued by Presidents representing both parties. We
applaud this much needed recognition.
To support my belief that this legislation is merited, I will focus
on recent events that demonstrate that current consultation initiatives
do not consistently function effectively. I point to an issue of Indian
gaming regulation and a federal agency. Had H.R. 5608 been in force, I
am confident that the federal agency would have come to very different
decisions.
Last October, the National Indian Gaming Commission (NIGC)
published a series of five proposed regulations and asked tribes to
provide their comments within 45 days of publication. While there had
been meetings between NIGC commissioners and representatives of
interested tribes, most tribes would agree that the NIGC failed in its
effort to meet its obligations under the government-to-government
consultation policy set forth under Executive Order #13175.
Executive Order #13175 directs that agencies of the Federal
government shall ``respect Indian tribal self-government and
sovereignty'', that the agencies of the Federal government ``shall
grant Indian tribal governments the maximum administrative discretion
possible'' and those agencies of the Federal government shall
``encourage tribes to develop their own policies; [and]...defer to
Indian tribes to establish standards.'' (E.O. 13175, Sec. 3).
President Bush issued an Executive Memorandum that reiterated this
commitment by directing that the Federal government is, ``...committed
to continuing to work with federally recognized tribal governments on a
government-to-government basis and strongly supports and respects
tribal sovereignty and self-determination[; and,] that all departments
and agencies adhere to these principles and work with tribal
governments in a manner that cultivates mutual respect and fosters
greater understanding to reinforce these principles.'' Exec. Mem.,
September 23, 2004.
While I understand that this bill's mandate extends beyond the work
of the NIGC, it is useful to consider the actions of this Commission in
order to demonstrate the need for this legislation.
To begin, the NIGC's own consultation policy recognizes that Tribes
are the primary regulator in Indian gaming, whether as sole
responsibility under Class II, or Compact negotiated responsibilities
through Class III gaming. The Oneida Tribe believes that respecting
these responsibilities requires and demands consultation. The NIGC
itself has committed to the following standard on consultation.
(III)(D) The NIGC will initiate consultation by providing early
notification to affected tribes of the regulatory
policies...that it is proposing to formulate and implement,
before a final agency decision is made regarding their
formulation or implementation.
Tribal governments have created associations to better identify
technical and policy matters that arise in Indian gaming and Indian
country such as National Indian Gaming Association, National Congress
of American Indians, United South and Eastern Tribes Midwest Alliance
of Sovereign Tribes, we also recognize that meeting with these entities
is not consultation. NIGC also recognizes this in its consultation
policy.
(III)B) ...Consultation with authorized intertribal
organizations and representative intertribal advisory
committees will be conducted in coordination with and not to
the exclusion of consultation with individual tribal
governments...
Further, individuals with expertise in Indian gaming have
participated in working groups created by the NIGC to help the NIGC
understand the technical nature of Indian gaming activities. However,
these working groups are not Tribal working groups, and do not purport
to have the authorization of tribal governments to act on our behalf.
Finally, the Oneida Tribe does not believe that consultation
regarding proposed regulations developed beginning in 2004, published
in the Federal Register in 2006, and withdrawn in early 2007, can be
considered consultation when publishing ``new proposed regulations'' in
October of 2007. Consultation, as defined by the NIGC, means meetings
and discussions, ``before a final agency decision is made regarding
their formulation or implementation.'' Although notice may have been
presented regarding these proposed rules in ``Dear Leader''
correspondence, that type of notice is insufficient to meet the
requirements of NIGC's consultation policy, does not respect our mutual
roles in regulating Indian gaming, and does not respect tribal
government role in regulating activities occurring within their
jurisdiction.
Now that I have spent some time explaining what we believe is not
consultation, I think it would be constructive to consider what
consultation should include. We believe that clarifying the
expectations regarding consultation will assist NIGC, the Department of
Interior, the Indian Health Service and tribes in developing mutual and
cooperative working relationships regarding regulation and oversight of
Indian activities.
It is our position that legislation considered by this body should
begin with the foundation that Tribal governments have the primary
responsibility for acting within Indian country and that any action
should be considered in a perspective of providing assistance in
carrying out that responsibility. Indian country, Tribal governments,
and matters affecting Tribes are unique, and a single regulation or
policy decision cannot take into account this unique aspect. As a
result, beginning with the premise that Tribal governments are
responsible will recognize that we have taken into account appropriate
governing responses addressing the needs within our reservations.
If regulation or policy is needed, specifically, we believe there
should be--
Notification to tribes that the federal Department,
agency or Commission is considering promulgating rules regarding a
subject matter.
Meetings with tribal leaders scheduled to discuss this
consideration and the parameters of those proposed rules.
Meetings with tribal leaders to identify how those
proposed rules will impact individual tribal governments.
Notification to tribes of the result of those meetings
and recommendations on how to proceed.
Meetings with Tribal leaders to explain and/or discuss
those recommendations.
It may appear that I have suggested a route that leads to endless
delays. But I would urge you to consider that tribal governments are
not idly waiting for agencies to promulgate regulations regarding
protection of Indians and our lands. Our tribal governments work to
identify policy and technical matters at all levels. Tribal leaders
have formed associations to look at national issues, and we have the
capacity to respond quickly to the call of the federal government. In
fact, the failure of proper consultation is what leads to a delay in
implementing new regulations due to an assortment of legal challenges
that might otherwise be avoided under true consultation processes.
What I have suggested is a consultation process that recognizes
tribal government's front line exposure and response to a host of
issues facing our people and our lands. The Oneida Tribe of Indians of
Wisconsin believes that the proposed consultation process will result
in recognition of the roles and responsibilities of tribal governments
and the federal agencies impacted by this legislation.
We would note that the Indian Health Service is part of the
Department of Health and Human Services, and that many of the agencies
in this Department provide programs and services that significantly
impact Indian tribes. Further, tribes have become more capable of
managing their own affairs and administering programs under contracts
with departments and agencies of the federal government that are not
included in this bill. Our last request regarding consultation would be
that Congress considers expanding this bill to include the entire
Department of Health and Human Services and other federal agencies that
have a profound impact on our affairs, including at least the
Departments of Justice, Defense, Energy, Housing and Urban Development,
Commerce and the Environmental Protection Agency.
This bill is an important step forward regarding recognizing the
government to government relationship. However, we are concerned that
the language in the proposed legislation could result in increased
litigation challenges where Tribe's find that the agency has not
addressed Tribal government concerns. As a result, this may place
tribes and agencies in adversarial positions. We look forward to
working with your Committee to identify alternative language which
would address this concern and return to positive working
relationships.
As a final note, the bill contains provisions which would lessen
the burden on Tribes of unfunded mandates. We agree with these
provisions and urge the final bill to include all federal departments,
agencies, and commissions which have the authority to promulgate rules
and regulations that significantly affect Indian self-determination and
self-governance.
Thank you for your time and I would be pleased to answer any
questions you might have regarding our views on this bill.
______
The Chairman. I thank each of you for your testimony this
morning.
The Chair would like to note with pleasure that all three
of the previous witnesses have remained to hear your testimony,
and I wish to commend them for that.
Let me ask President Shirley. The legislation requires that
the agencies develop an accountable consultation process. Do
you think that is adequate or that more criteria is needed to
better define the process?
Mr. Shirley. I think it is a beginning. I think it is a
beginning, Mr. Chairman. I think as leaders of the different
native nations get together to talk about what is adequate, we
will get there, but for now I think it is OK.
The Chairman. All right. Other witnesses have indicated a
desire to see this extended to other Federal agencies. Would
you agree with that?
Mr. Shirley. I agree with that. I think it should be across
the board. I mean, the U.S. Government is a humongous
government, but it is an entity that we deal with. I think it
should be across the board. Yes.
The Chairman. Thank you.
Chairman Rolin, let me ask you, in your testimony, you
provide several examples of how tribal consultation by the
Indian Health Services work. If IHS is complying with Executive
Order 13175, is it necessary to include the agency in this
bill? If so, why?
Mr. Rolin. I think so because IHS is only a portion of the
HHS, and our concern is to make sure, Mr. Chairman, that all
the agencies get included. IHS is complying at this point in
working with tribes in the consultation process, as my
testimony indicated, but certainly there is always room for
improvement.
As we have heard from both of the other witnesses here,
they don't always agree that the appropriate consultation has
taken place, so therefore I do think that they should be
included in this bill.
The Chairman. OK. Let me ask you. Would you still support
this legislation if it is not extended to all Federal agencies?
Mr. Rolin. That is a good question, sir. I would hope not,
but I would want it as this legislation. My testimony just
mentioned the three, the IHS, NIGC and DOI. I would certainly
want it extended to all other agencies. Yes, sir.
The Chairman. OK. You mentioned a concern that by not
including other Federal agencies, Congress is sending a message
that the other Federal agencies do not need to comply with the
executive order. So if we do not extend it to other Federal
agencies, how would you propose to amend the bill?
Mr. Rolin. Well, certainly we need to make sure that this
is codified to the effect that all the other agencies are
required to conform.
The Chairman. OK. That would be your amendment then?
Mr. Rolin. That would be my amendment.
The Chairman. All right. Let me ask Chairman Danforth. In
your written testimony, you specify steps that you believe
should be performed if a regulation or policy is needed. Do you
think that these steps should be incorporated into the bill?
Mr. Danforth. Yes, I do.
The Chairman. And are the five steps currently used in any
of the consultation processes employed by the Administration
under Executive Order 13175?
Mr. Danforth. Some of those steps are incorporated, but I
believe generally the steps are spelled out more in the
Department's consultation policy.
I think that to standardize consultation across all of
Indian Country and standardize consultation across the full
breadth of the agencies that we interact with, that these steps
and perhaps others should be incorporated into the bill so that
there is that consistency.
The Chairman. All right. You indicated a concern that the
proposed bill could lead to increased litigation where a tribe
does not find that an agency has addressed the tribe's
governmental concerns.
What provision in the bill do you believe will result in
increased litigation, and how would you address this issue?
Mr. Danforth. I can't recall the specific section instantly
and I would like some more time to provide you some written
follow-up to that, but I do know that the bill contains some
components of it that could be perceived for a tribe or an
entity to move too quickly to try to litigate an issue before
even the consultation was completed.
So what my recommendations would be specifically, I would
ask for more time to provide that to you.
The Chairman. Yes. We would like to receive that too.
I want to ask you to bear with the Committee just one
minute. We have another Member on his way. I think he is just
outside the door. He had some questions that he would like to
ask.
[Pause.]
The Chairman. We recognize the gentleman from Wisconsin,
Mr. Kind.
Mr. Kind. I was trying to take care of a little business
out in the hall.
First of all, I do want to thank you, Mr. Chairman and Mr.
Kildee, for bringing what I think is a very important and
worthwhile piece of legislation, and certainly appreciate the
witnesses' testimony here today. I understand Director Gidner
will have a chance to respond in the next panel.
I have a special welcome to Chairman Danforth of the Oneida
Nation in Wisconsin and wish him all the best in his
retirement. I know that is coming up very fast, but he has
worked tirelessly on behalf of the members of the Oneida
Nation, and we really appreciate his assistance.
I guess, Chairman Danforth, let me ask you, and of course
this is relevant to all the witnesses as well, but getting to
the basic need for this legislation. You would think it is
intuitive that the Federal agencies would be not only
notifying, but consulting with various groups and entities in
our country where their decisions are going to impact them, and
yet we have been getting a variety of reports that that hasn't
always been the case or merely it was notice that served as
consultation and not really a back and forth conversation.
I guess my question for you is, is this a matter of process
that is breaking down or is it personalities that haven't found
the value in sitting down and consulting with the various
nations in the country before decisions are made? If it is
personality, how does the legislation get to that then, other
than setting up a new kind of requirement or mandate trying to
force these conversations?
Chairman Danforth, do you have any thoughts on that?
Mr. Danforth. Yes. Thank you, Congressman Kind. Good to see
you again.
Mr. Kind. Yes.
Mr. Danforth. And thank you for being here. The way
consultation occurs, it does lend itself to personalities. I am
not going to suggest that that is always the case, but I do
think that legislation has a tendency to take into
consideration and eliminate, to the greatest extent possible,
personalities from influencing the process.
For example, I agree consultation does not mean unanimous
agreement at the end of the process but, at a minimum,
consultation should mean that if there is something that I am
not in agreement with, I should at least understand the reasons
why and vice versa for the other parties at the table. If there
is something that they are not agreeable with, then at a
minimum I owe it to give reasons and understanding as to my
reasons, my logic behind the issue.
I forgot the first part of your question. I am sorry.
Mr. Kind. Well, I was just trying to get at whether or not
this is necessary in regards to the process that is already in
place and that, but I think some of you have already testified
that it makes a lot more sense to have these conversations take
place upfront in order to allay any misperceptions or
misunderstandings that might be made.
Therefore, at the back end, we might be able to avoid some
of the litigation expenses that might inevitably arise out of a
lack of a consultation process. Do you think with this
legislation that is pending that that would help substantially
in trying to reduce potential litigation in the future?
Mr. Danforth. I think it would. Absolutely. It is worth the
time.
If we look at some examples of consultation that occurred
in the beginning--and differences during the process which
ended up in litigation--if we couple all that time and expense
and work, I think we would find that by being more deliberate
and exact with the consultation upfront, the whole process
would be shortened, less costly and more standard.
Mr. Kind. And finally, let me just ask each of you. It is
one thing passing legislation requiring consultation to take
place. It is another thing getting good faith negotiations or
good faith consultations to take place.
Is that something that can be dealt with effectively in the
legislation? Do any of you have any thoughts on how we can
foster a better working relationship and good faith
conversations to take place in the future?
Mr. Danforth. If I can start with that, I would say that I
think there needs to be a clarification of what the
expectations are upfront, and I think defining the expectations
and clarifying them would be very helpful in the process.
Mr. Kind. Yes.
Mr. Rolin. Mr. Kind, I would certainly concur with the
Chairman that we definitely need to know what the expectations
are and what is expected of us.
As I mentioned in my testimony, I gave a couple examples of
how the consultation does work with the Tribal Leaders Diabetes
Committee and the reauthorization of the Indian Health Care
Improvement Act. That is just two good examples. We know that
it works, so definitely I think it could.
Mr. Kind. Yes. President Shirley, do you have anything?
Mr. Shirley. Yes.
[Away from microphone.]
Mr. Shirley. I don't know if you can do that in the
legislation, but I think it would help to define what we mean
by meaningful because certainly we have conversations, but it
seems that oftentimes it doesn't go anywhere. That is where the
concern is.
Mr. Kind. Yes.
Mr. Shirley. If the tribes are going to be talking to the
Bureau of Indian Affairs, the Department of Interior Secretary,
DHHS, it would help to know what the meaning of ``meaningful''
means.
Mr. Kind. Yes. I think the point as far as what the
expectations should be is a very valid one because I am sure
that the Director, who is soon going to testify, will be
stating that while they believe in their own mind that there
has been effective consultation, but sometimes at the end of
the day the answer is no, and sometimes people view that as
lack of consultation or lack of a good faith effort, so I think
some of those things just can't get resolved through
legislation.
Thank you all again. Thank you, Mr. Chairman.
The Chairman. Thank you, Mr. Kind.
The gentleman from Arizona, Mr. Grijalva?
Mr. Grijalva. Thank you, Mr. Rahall, and thank you for the
legislation. I think the President said it well with the issue
of meaningful consultation.
Implicit in that definition is being treated government-to-
government and as equals in that discussion, and that is not
occurring. The example, a very current example that affects
President Shirley's nation, has to do with the uranium
exploration and potential mining around the Grand Canyon.
The lands, whether ancestral or whether bordering the
nation, that would have been the requirement, I think, for
meaningful consultation advice. That did not occur. You know,
inviting the tribe to an public meeting where they show maps
and graphs is not meaningful consultation. I don't care how you
define it.
So, Mr. Rahall, just a comment. I am very appreciative of
the legislation. I think it will go a long ways to returning
that government-to-government that we all seek.
The Chairman. Thank you.
Gentlemen, again we thank you for being with us today and
your very insightful testimony.
Our next witness is Mr. Jerry Gidner, the Director of the
Bureau of Indian Affairs, who will be testifying on all the
bills under consideration today, H.R. 5680, H.R. 3522, H.R.
3490 and S. 2457.
Director Gidner, we welcome you to the Committee. We have
your prepared testimony, and it will be made a part of the
record as if actually read. You may proceed as you desire.
STATEMENT OF JERRY GIDNER, DIRECTOR,
BUREAU OF INDIAN AFFAIRS
Mr. Gidner. Thank you, Mr. Chairman. Mr. Chairman and
Members of the Committee----
The Chairman. Hold on just a minute until we clear.
[Pause.]
The Chairman. Would somebody close that back door, please?
Thank you.
OK. You may proceed.
Mr. Gidner. Is it something I said? Thank you, Mr.
Chairman, Members of the Committee.
I am Jerry Gidner. I am the Director of the Bureau of
Indian Affairs at the Department of the Interior, and I am
going to provide the Department's testimony on a series of
bills today. With your permission, I will just run through
those in order.
The first is H.R. 3522, which is a bill to ratify a
conveyance of a portion of the Jicarilla Apache Reservation to
Rio Arriba County. This bill would provide congressional
ratification of a settlement to a longstanding dispute between
the tribe and the county. The Department supports this
legislation.
This land can only come out of trust through congressional
action. Congressional action would remove the lands from trust
and realign a portion of the tribe's reservation, resolving a
jurisdictional dispute over a road. Both the county and the
tribe have performed their duties under a settlement agreement,
and this issue is now ready for congressional action.
We do not believe that removing land from trust is always
an appropriate solution to problems, but in this case, given
the negotiated settlement and the proactive dispute resolution
between the tribe and the county, we believe that it is
appropriate.
The next bill, H.R. 3490, the Tuolumne Me-Wuk Land Transfer
Act of 2007, would transfer to the tribe lands currently
administered by the Bureau of Land Management to be held in
trust by the United States for the tribe. We support this bill
with one slight amendment.
There is a 180 day timeline to complete the survey of three
tracts to determine if they are ready for transfer. We don't
believe this time period is sufficient to allow completion of
this survey field work.
I understand that the tribe will be having meetings and is
going to propose a solution to that, but we suggest the
language be changed to ``as soon as practicable'' or, if a date
is necessary, to ``90 days following completion of the required
field work.''
S. 2457 is a bill to provide extensions of leases for
certain land of the Mashantucket Pequot Tribe. This would allow
the tribe to lease restricted fee land for a period of time or
with extensions for a period of time exceeding that currently
set forth by statute. There is precedent for this. Other tribes
have received extensions. This bill would provide an extension
for 75 years, and we support this legislation.
H.R. 5680 is a bill to amend certain laws. It has 10
sections, which I will go through in order. Section 2 provides
for an annual disbursement to the Colorado River Indian Tribes,
provides the Secretary discretion to make an annual
disbursement to the Colorado River Tribes from revenues
deposited into the Treasury Department from power operations.
The Department of Interior opposes this section. We believe
it would divert funds intended for the BIA's Colorado River
Agency. These funds are also not held in trust and are
necessary to maintain and operate the power system. These funds
are also subject to litigation that is pending that was
recently initiated by the Colorado River Indian Tribe. Again,
we oppose Section 2 of H.R. 5680.
Section 3 of 5680 inserts new language into 25 U.S.C.
415[f] regarding the Gila River Indian Community, and we do not
have any objection to that section, Section 3.
Sections 4 and 5 allow the Sault Ste. Marie Tribe of
Chippewa Indians--which with full disclosure, I am a member of
that tribe--and the Lac du Flambeau Band of Lake Superior
Chippewa Indians to transfer or convey without further
authorization all or any part of each tribe's interest in land
that is not held in trust.
We believe they already have that authority, as does any
person or entity who owns fee land within the United States.
Sections 4 and 5 would provide important clarification of that.
We have one concern about subsection [d] of Section 4, which
makes the effective date of the section January 1, 2005. We are
not sure why there is that effective date, but we support those
sections with that one concern.
Section 6 of H.R. 5680 would allow the Morongo Band of
Mission Indians to enter into nonagricultural leases for the
tribe's restricted fee land with lease terms of not more than
50 years. As with the prior section, there is precedent for
this, and we support that section.
Section 7 involves the Cow Creek Band of Umpqua Indians. As
similar to the other sections, it would allow them to enter
into leases of restricted fee land for terms up to 99 years,
subject to the Secretary's approval. For the reasons above, we
support that. We would point out there is a typographical error
in the name of the tribe in the bill.
Section 8 of 5680. We have concerns with it and we seek
clarification of its meaning. It proposes elimination of
certain rights of a class as defined in 43 U.S.C. Sec. 1606.
Just to be honest, we are not sure exactly the effect of that
or what that means, and we would seek the Committee's
clarification of that.
Section 9 of H.R. 5680 lifts the restriction requiring
funds to be invested in low earning, Federally backed
instruments regarding the Columbia River Treaty fishing access
sites. Instead of requiring the funds to be invested in
Federally backed securities, it would allow the use of the
prudent investment standard. We have concerns about this and
would like to have further discussions.
Our concerns. In the past we have opposed the use of the
prudent investment standard, and the reason basically is if
that is a standard that is allowed to be used, there could be
loss of funds. The Federal government could be required to
replace those funds. We may, in essence, have to pay twice for
the same project. So we would support the use of the same
standard, the existing standard, which is that the funds must
be invested in Federally backed securities.
Section 10 of H.R. 5680 provides the Secretary shall take
lands into trust for the benefit of the Miccosukee Tribes of
Florida and include those lands as part of the tribe's
reservation. We recognize Congress' authority to legislatively
act on taking lands into trust. However, we prefer the
administrative process in Section 151 of our regulations. That
is a process we prefer that we usually use.
That concludes my testimony. I would be glad to take any
questions you may have.
[The prepared statement of Mr. Gidner follows:]
Statement of Jerry Gidner, Director, Bureau of Indian Affairs, U.S.
Department of the Interior, on H.R. 3522, H.R. 3490, S. 2457, and H.R.
5680
Mr. Chairman and Members of the Committee, my name is Jerry Gidner.
I am the Director for the Bureau of Indian Affairs at the Department of
the Interior (Department). I am here today to provide the Department's
testimony on H.R. 3522, a bill to ratify a conveyance of a portion of
the Jicarilla Apache Reservation to Rio Arriba County, State of New
Mexico, pursuant to the settlement of litigation between the Jicarilla
Apache Nation and Rio Arriba County, State of New Mexico, to authorize
issuance of a patent for said lands, and to change the exterior
boundary of the Jicarilla Apache Reservation accordingly, and for other
purposes; H.R. 3490 the Tuolumne Me-Wuk Land Transfer Act of 2007; S.
2457, a bill to provide for extensions of leases of certain lands by
the Mashantucket Pequot (Western) Tribe; and H.R. 5680, a bill to amend
certain laws relating to Native Americans, and for other purposes.
H.R. 3522, a bill to ratify a conveyance of a portion of the
Jicarilla Apache Reservation to Rio Arriba County, State of New Mexico,
pursuant to the settlement of litigation between the Jicarilla Apache
Nation and Rio Arriba County, State of New Mexico, to authorize
issuance of a patent for said lands, and to change the exterior
boundary of the Jicarilla Apache Reservation accordingly, and for other
purposes.
H.R. 3522 would provide Congressional ratification of a settlement
to a long-standing dispute and court case between the Jicarilla Apache
Nation (Tribe) and Rio Arriba County, New Mexico (County). The
settlement reached by the parties requires Congressional action. The
Department supports this legislation.
This legislation centers around a dispute between the Tribe and
County regarding the ownership status of a road on a parcel of land in
Rio Arriba County, known as the Theis Ranch. The Jicarilla Apache
Nation acquired title to the Ranch in 1985. The United States acquired
the property in trust for the benefit of the Tribe in March 1988 and
proclaimed it part of the Tribe's reservation in September 1988. In
October 1987, the County filed a lawsuit in District Court for the
State of New Mexico, asking the court to determine which entity owned
the road. On December 10, 2001, the District Court determined that the
Jicarilla Apache Nation was the proper owner of the portions of the
road traversing the Tribe's reservation. The County appealed this
decision and the matter is currently pending before the Court of Appeal
of the State of New Mexico, although it has been stayed pending outcome
of a Settlement Agreement reached by the parties during mediation.
The Settlement Agreement was executed by the Tribe and County on
May 3 and 15, 2003, respectively, and approved by the Department on
June 18, 2003. It would settle all claims in the appeal by removing
certain lands within the Theis Ranch from trust and reservation status
and conveying them to the County. The transferred lands would be
subject to restrictive covenants limiting their use to governmental
purposes and prohibiting their use for prison, jail or incarceration
facility.
In order for the Tribe and County's jurisdictional plan to work,
the parcels at issue would be removed from trust and reservation
status. Land can only come out of trust status through Congressional
action. Congressional action would remove the lands from trust status
and realign the Tribe's reservation boundaries, thereby resolving which
entity has jurisdiction over the road. Both the County and Tribe have
performed their respective duties under the Settlement Agreement and it
is ready for Congressional action to remove the subject lands from
trust and reservation status.
The Department supports this bill because it encourages cooperation
and proactive solutions to resolve jurisdictional and land conflicts
between Indian tribes and their neighbors. While the Department does
not believe that removal of land from trust status or diminishment of
reservation boundaries may be an appropriate solution in all future
cases, the Department applauds the work of the parties in reaching this
settlement and supports enactment.
H.R. 3490, the Tuolumne Me-Wuk Land Transfer Act of 2007.
H.R. 3490, the ``Tuolumne Me-Wuk Land Transfer Act of 2007''
transfers to the Tuolumne Band of Me-Wuk Indians of the Tuolumne
Rancheria lands currently administered by the Bureau of Land Management
(BLM) to be held in trust by the United States for the benefit of the
Tribe. The Department supports the bill with an amendment.
The Tuolumne Me-Wuk Land Transfer Act represents years of
cooperative effort between the Tuolumne Band of Me-Wuk Indians of the
Tuolumne Rancheria (Tribe) and the BLM.
This bill would transfer three parcels of BLM land to the Tribe.
The Tribe seeks the first tract, an approximately 50-acre parcel, to
establish a cultural center. The second tract, of approximately 15.35
acres, would help meet the Tribe's agricultural, housing, and open
space needs. The third tract, of approximately 0.4 acres, contains a
cemetery where tribal members and other Indians are buried. These
scattered tracts of public lands are adjacent to the current Tuolumne
Indian Rancheria, located just north of the small community of
Tuolumne, in rural northwest Tuolumne County.
The land in question has been managed by the BLM pursuant to a 1983
Management Framework Plan (MFP) for the Tuolumne River Management Area.
The MFP was replaced by the Sierra Resource Management Plan (SRMP)
through a Record of Decision on February 15, 2008. The SRMP clearly
identifies these scattered tract parcels as potentially available for
disposal based on current land uses. Transfer of the three parcels to
the Tribe would therefore conform to the SRMP.
The Department is pleased that H.R. 3490 addresses valid and
existing rights and gaming. However, we are concerned with the 180-day
timeline to complete the survey of the three tracts to determine it
they are ready for transfer. This time period is not sufficient to
allow completion of survey fieldwork. We suggest the language be
changed to ``as soon as practicable'' or, if a date is determined
necessary, perhaps ``90 days following completion of the required
fieldwork'' since such fieldwork is not currently scheduled. The timing
of completion will depend on funding availability.
In summary, the Department has had a cooperative working
relationship with the Tuolumne Band of Me-Wuk Indians on this requested
land transfer and supports H.R. 3490 with the above amendment.
S. 2457, a bill to provide for extensions of leases of certain land by
the Mashantucket Pequot (Western) Tribe.
S. 2457 would allow the Mashantucket Pequot Tribe or a Tribal
corporation chartered pursuant to 25 U.S.C. Sec. 477 to lease the
Tribe's restricted fee land with options for extensions of the lease
term of more than the time period currently set forth by statute at 25
U.S.C. Sec. 477.
Section 477 allows certain tribal corporations to lease tribal land
for a term of 25 years. This legislation would allow the Mashantucket
Pequot Tribe to enter into leases for a 25-year term with options to
extend the lease for not more than two additional terms of up to 25
years each. Approval of the lease extensions would not be subject to
Secretarial approval and would only require approval of the
Mashantucket Pequot Tribal Council. The Department would not be liable
for any losses resulting from the lease renewals. Gaming would also not
occur on any land leased with an option to renew pursuant to this
legislation.
There is precedent for this bill's attempt to lengthen the lease
period as several tribes have already received specific exemptions from
similar lease limitations in Section 415(a); those tribes may enter
into leases with 99-year terms with the Secretary's approval. The
Mashantucket Pequot Tribe seeks lease terms that may, with optional
extensions, reach 75 years and has demonstrated sound business judgment
in its economic ventures. The Department therefore, supports this
legislation.
H.R. 5680, a bill to amend certain laws relating to Native Americans,
and for other purposes.
The Department has concerns with many of the provisions in H.R.
5680 as currently drafted.
annual disbursement to the colorado river indian tribes (crit)
Section 2 of H.R. 5680 provides the Secretary of the Interior
discretion to make an annual disbursement to the Colorado River Indian
Tribes (CRIT) from revenues deposited into the Treasury pursuant to 25
U.S.C. 385c from power operations on the CRIT reservation. The
Department of the Interior opposes this section. Section 2 could divert
appropriated funds intended for the Bureau of Indian Affairs' (BIA)
Colorado River Agency to the CRIT. Such a diversion would be
inappropriate because the funds are not held in trust by the United
States and are necessary to maintain and operate the BIA's power
system. In addition, the funds are the subject of pending litigation
recently initiated by CRIT in federal district court.
The BIA's Colorado River Agency owns and operates irrigation
facilities and a power system along the Colorado River which serves the
CRIT reservation and also provides power to users off the reservation.
Headgate Rock Dam is the centerpiece of this irrigation and power
system. The BIA sells electricity generated by the dam's powerhouse to
users of the power system and sends the revenue it collects to the
United States Treasury. These funds may then be appropriated to BIA for
use on the power system, or other purposes, as authorized by 25 U.S.C.
385c.
It would be inappropriate to disburse these power funds to CRIT, or
any other Indian tribe, because the funds are not a trust asset and
neither CRIT, nor any other tribe, has a beneficial interest in them.
Funds appropriated to the BIA for the Colorado River Agency power
system by 25 U.S.C. 385c should not be decreased because they allow BIA
to operate and maintain its power system. Further, section 385c
identifies certain general purposes for which power revenues may be
expended, none of which involve disbursement to a tribe. CRIT has also
filed a lawsuit against BIA in federal court. Section 2 could deplete
the power fund contrary to CRIT's claims in court. For these reasons,
the Department opposes section 2 of H.R. 5680.
Construction Contracts inclusion to 25 USC 415f, Gila River Indian
Community
Section 3 of H.R. 5680 inserts new language ``or construction
contract'' into 25 U.S.C. 415f, where any contract affecting land
within the Gila River Indian Community Reservation may contain a
provision for the binding arbitration of disputes arising out of such
contracts. This new language identifies that ``construction contracts''
are included within the meaning of 25 U.S.C. 415f. The Department
raises no objection to this amendment to 25 U.S.C. 415f.
sault ste. marie tribe of chippewa indians of michigan and lac du
flambeau band of lake superior chippewa indians of wisconsin
Sections 4 and 5 of H.R. 5680 would allow the Sault Ste. Marie
Tribe of Chippewa Indians of Michigan and the Lac du Flambeau Band of
Lake Superior Chippewa Indians of Wisconsin, respectively, to transfer,
lease, encumber, or otherwise convey, without further authorization or
approval, all or any part of each Tribe's interest in any real property
that is not held in trust by the United States for the benefit of the
Tribe.
The Non-Intercourse Act, based on a 1763 proclamation of King
George III and originally passed in 1793 by Congress, prohibits the
conveyance of an interest in Indian land from any Indian tribe without
the approval of the United States. There is some dispute whether fee
land owned by a tribe would fall under this prohibition. We urge
Congress to clarify this issue. Clarification will remove obstacles to
economic development opportunities and it will enhance tribal
sovereignty.
While we believe each Tribe identified in sections 4 and 5 has the
authority to lease and convey its fee property as anyone else does who
owns land within the United States, sections 4 and 5 of H.R. 5680, as
they speak to the Sault Ste. Marie Tribe of Chippewa Indians of
Michigan and to the Lac du Flambeau Band of Lake Superior Chippewa
Indians of Wisconsin, would provide important clarification. We do
however, express concern with section 4, subsection (d), which makes
the effective date of the section January 1, 2005 without reason or
purpose or other background information.
morongo tribe lease extension
Section 6 of H.R. 5680 would amend 25 U.S.C. Sec. 415(a) to allow
the Morongo Band of Mission Indians to enter into non-agricultural
leases for the Tribe's restricted fee land with lease terms of not more
than 50 years. As noted above, Section 415(a) requires the Secretary of
the Interior to approve leases of restricted land for public,
religious, educational, recreational, residential, business and farming
purposes. Leases of restricted land for non-agricultural purposes are
generally required to contain a lease term of not more than 25 years
with the possibility of an extension for an additional 25 years.
This legislation would insert a provision into Section 415(a)
through which the Morongo Band would be able to enter into leases with
an initial term of up to 50 years upon the Secretary's approval.
Several tribes have already received specific exemptions from these
lease limitations in Section 415(a); those tribes may enter into leases
with 99 year terms with the Secretary's approval. The Department
supports this section.
cow creek band leasing authority
Section 7 of H.R. 5680 would amend 25 U.S.C. Sec. 415(a) to include
the Cow Creek Band of Umpqua Indians in the list of tribes that may
enter into leases of their restricted fee land for terms of up to 99
years subject to the Secretary's approval. There are already several
tribes that are authorized to enter into leases with such a term in
Section 415(a), and the Department supports the inclusion of the Cow
Creek Band into this group. The Department supports this section of the
legislation if amended to remedy a typographical error in the name of
the Tribe.
new settlement common stock issued
Section 8 of H.R. 5680 provides for specific new language that
eliminates existing language that allowed, as an exception, ``the
issuance of such Settle Common Stock by a majority of the class of
existing holders of Settlement Common Stock carrying such rights
separately approve[d] the granting of such rights. Further, the new
language would eliminate current language that speaks to ``the articles
of incorporation of the Regional Corporation,'' which ``shall be deemed
to be amended to authorize such class vote'' consistent with the
preceding granting of such rights, which is provided in the current
chapter in the Alaska Native Claims Settlement Act (ANCSA) 43 U.S.C.
Section 1606(g)(1)(B)(iii).
Additionally, the specific new language would eliminate the
authority of transferring Settlement Common Stock as a gift ``to a
Native or a descendant of a Native (iii) as an inter vivos gift from a
holder to his or her child, grandchild, great-grandchild, niece,
nephew, or ``brother or sister,'' which is currently allowed in 43
U.S.C. 1606(h)(1)(C)(iii).
The Department expresses concern with Section 8 of H.R. 5680 and
seeks clarification. Section 8 proposes elimination of certain rights
of a ``class,'' as defined in 43 U.S.C. Section 1606(g)(1)(B)(iii), and
its proposed elimination of a gift transfer currently authorized for
Settlement Common Stock under 43 U.S.C. 1606(h)(1)(C)(iii), without
reason or purpose or other background information. In addition, we are
concerned with the potential effect of this section on ANCSA
corporations as business corporations under state law.
columbia river treaty fishing access sites
Section 9 of H.R. 5680 lifts a restriction that requires funds to
be invested in low earning federally-backed instruments. These
investments tend to yield a lower percentage of earnings, which may be
inadequate for the Tribe's annual Operation and Maintenance needs. This
legislation would allow investment of operation and maintenance funds
for the Columbia River treaty fishing access sites using the prudent
investment standard. Under this provision, the funds might be invested
in stocks that could yield a higher rate of return or that could cause
the funds to lose a significant part of their value. On November 8,
2007, the Department testified before this Committee on H.R. 3994, the
``Department of the Interior Tribal Self-Governance Act of 2007''. In
that statement, the Department testified in opposition to use of the
prudent investment standard. We expressed our concern that if there is
a loss to an investment, services may cease and the federal government
may need to provide more funding and, 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. The Department has been
working with the Committee staff on this issue and looks forward to
continuing discussions with the Committee.
miccosukee tribe of indians of florida
Section 10 of H.R. 5680 provides that the Secretary shall take
certain lands into trust for the benefit of the Miccosukee Tribe of
Indians of Florida (Tribe) and include it as part of the Tribe's
reservation. The land is described as Tracts A and B of the Kendale
Lakes North Section One, consisting of 229.3 acres in Miami-Dade
County, Florida. The land is currently under consideration as an off-
reservation trust land acquisition by the Eastern Regional Office in
accordance with 25 CFR 151, Land Acquisitions. The proposed acquisition
is a discretionary trust land acquisition authorized by Section 5 of
the Act of June 18, 1934 (48 Stat. 984, 25 USC 465), as amended.
The Department recognizes Congress' authority to legislatively act
on taking land into trust for the benefit of an Indian tribe. However,
the Department prefers the administrative process for taking land into
trust authorized by Section 5 of the Indian Reorganization Act of 1934
(IRA), which authorizes the Secretary to acquire land in trust for
Indians ``within or without existing reservations.'' Under these
authorities, the Secretary applies his discretion after consideration
of the criteria for trust acquisitions in our ``151'' regulations (25
CFR Part 151), unless, of course, the acquisition is legislatively
mandated.
This concludes my prepared testimony. I am happy to answer any
questions the Committee may have.
______
The Chairman. Thank you very much. The Committee does
appreciate your views on all the pending bills.
I am going to turn my time over to Mr. Grijalva but, before
I do that, I want to recognize Mr. Kildee, a cosponsor with me
on 5608. He has already been thanked numerous times this
morning, so I will recognize him for any comments he wishes to
make.
STATEMENT OF THE HONORABLE DALE E. KILDEE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Kildee. Thank you very, very much. I was at the
Education and Labor Committee markup over there.
I think we have done a great job on 5608. I appreciate
being an original co-sponsor on the bill. What we have done, we
have told the Interior Department in general that consultation
with these sovereign tribes means real consultation, not
telling them what one side has decided to do. I think we made
that very, very clear. And also with the National Indian Gaming
Commission, the fact that consultation really means
consultation.
This committee is probably the best guardian of that
sovereignty. Mr. Chairman, I appreciate your constant
guardianship in that area. Thank you very much.
The Chairman. Thank you. The Chairman certainly welcomes
and thanks you for your leadership on Native American issues
over decades in this body.
Mr. Grijalva, I will yield you such time as you may want.
Mr. Grijalva. Thank you, Mr. Chairman. I appreciate that.
Mr. Director, just a couple of questions for clarification.
In your testimony you state that Section 385[c] identifies
certain general purposes for which power revenues may be
expended. None of these involve disbursement to a tribe.
The question I have is, does Congress have the authority to
authorize the funds be used for the purposes provided in this
legislation? Is that a congressional authority issue as well?
Mr. Gidner. I believe you do.
Mr. Grijalva. Then the question that I would like to follow
up with is, I think you mentioned that the funds are the
subject of a pending litigation recently initiated by the tribe
in the Federal District Court.
The question is, is the issue before the court the type and
amount of funds or the manner in which the BIA is expending
those funds?
Mr. Gidner. I don't know the answer to that, Congressman. I
would have to find out.
Mr. Grijalva. I think that is an important distinction. I
think the Committee would appreciate that information.
Mr. Gidner. All right.
Mr. Grijalva. Let me talk a little bit about the precedent
and your comments. I think in this legislation, particularly
Section 2, there already is a fact precedent on what the CRIT
seeks to do with the legislation under Section 2.
There seems to be some inconsistency on how BIA approaches
the use of funds from other similar projects. An example: In
response to a very critical need for irrigation water on
another Indian irrigation project in Arizona, Congress
authorized the BIA to use funds derived from power trust funds
to purchase irrigation water. That was with the San Carlos
Irrigation Project.
There was also legislation that conveyed to BIA BIA's
irrigation project to the Salt River Pima Maricopa Indian
Community that included a provision allowing the community to
collect and disburse the fees collected, pursuant to the 1946
Act.
In addition, the Fiscal Year 1984 Interior Appropriations
Act. That public law directs the BIA to invest Indian power
trust accounts and to apply the investment proceeds for use in
connection with projects where the funds were collected. In
particular, the 1984 Act provides for the use of the interest
for operation and maintenance expenses, to use the interest for
that purpose.
And so the position today on the issue is also, I believe,
inconsistent with the Department's brief of February 20 in the
suit which the CRIT brought against the BIA on the use of the
funds for this project. In the government's response, in their
brief on page 8, it stated, ``Consequently, Congress can use
these funds for any purpose.''
Now it kind of sounds like the government is taking the
position that the funds can only be used more restrictively.
Any explanation on that inconsistency?
Mr. Gidner. I would say, under the current framework, we
would need to use it more restrictively but, in response to
your previous question, I think Congress has the right and
authority to dictate differently through legislation.
We oppose that legislation. We don't disagree with your
ability to pass it.
Mr. Grijalva. So Congress has the authority to authorize
the use of these funds for other purposes.
Since the Department does not support this particular
legislation, do you have any suggestions for the tribe as to
how they may obtain funding to establish that Office of Energy
or with other Federal funds to establish that office? Your
position on that question?
Mr. Gidner. I think we would have to discuss that with the
tribe and get more facts, and we could respond to that in
writing. I don't know today, sir.
Mr. Grijalva. It is my understanding this is just
opposition to the tribe having an Office of Energy, correct, or
am I wrong?
Mr. Gidner. I wouldn't say that. Again, I will have to get
more facts.
Mr. Grijalva. OK. Well, hopefully as a consequence to
getting more facts, we can do it expeditiously because I think
the questions that are being asked are important.
Mr. Chairman, it goes to what I think our colleague, Mr.
Kildee, has mentioned many, many times that I have heard him
that the Congress does have the authority to make decisions. I
think Section 2 is a well thought out and important
contribution to the tribe, and I would suggest that we get
those answers to some of the questions back, and I will also
submit some additional in writing.
With that, Mr. Chairman, I don't have any additional
questions. Thank you.
The Chairman. Thank you.
Let me ask Mr. Inslee from Washington if he has any
questions and thank him for agreeing this morning to be a co-
sponsor of Mr. Kildee's and my consultation bill.
Mr. Inslee. I appreciate it. I just want to thank you for
something that has been a frustration for years and years and
years, and if we get some statutory improvement, I am very
appreciative of what is going on here. Thank you.
The Chairman. OK. The gentleman from Maryland, Mr.
Sarbanes?
[No response.]
The Chairman. The gentleman from California, Mr. Baca?
[No response.]
The Chairman. OK. We thank you. Thank you, Mr. Gidner, for
your testimony, and we look forward to receiving the
information that Mr. Grijalva has requested in writing from
you.
Mr. Gidner. Yes, sir.
The Chairman. Thank you.
Our final panel is composed of The Honorable Valerie Welsh-
Tahbo, the Secretary of the Colorado River Indian Tribes, on
H.R. 5680; The Honorable Kevin Day, the Chairman of the
Tuolumne Me-Wuk Tribe, on H.R. 3490; Ms. Fidelia Andy,
Chairwoman, Columbia River Inter-Tribal Fish Commission, on
H.R. 5680; and Mr. Dennis Lee Forsgren, Jr., Consultant,
Miccosukee Tribe of Indians of Florida, on H.R. 5680.
Ladies and gentlemen, we welcome you to our Committee on
Natural Resources. We have your prepared testimony. It will be
made part of the record as if actually read. You are encouraged
to testify, and you may proceed in the order I introduced you.
Oh, yes. Let me first recognize--excuse me--the gentleman
from Arizona, Mr. Grijalva.
Mr. Grijalva. Thank you very much. It is my honor to
welcome Madam Secretary from the CRIT Nation here. Welcome.
I have worked with her and tribal leadership on many
issues, and I am proud to extend this welcome to her and to her
Nation, and look forward to her testimony.
Thank you.
STATEMENT OF THE HONORABLE VALERIE WELSH-TAHBO, SECRETARY,
COLORADO RIVER INDIAN TRIBES
Ms. Welsh-Tahbo. The Colorado River Indian Tribes, or CRIT,
appreciates the opportunity to testify in favor of Section 2 of
H.R. 5680, a bill to amend certain laws relating to Native
Americans. I ask that my written testimony be made part of the
record.
CRIT would also like to thank Congressman Grijalva for his
sponsorship of H.R. 5680 and for his support for CRIT's effort
to achieve greater energy independence. Enacting Section 2 of
this bill provides essential support for making the Federal
policy of tribal energy self-determination a reality on CRIT's
reservation.
CRIT would like to propose some amendments to this
provision to avoid unnecessary delays in implementing the new
law. Before addressing these amendments, it may be helpful to
summarize CRIT's proposal and to provide some background
information.
Federal law strongly encourages Indian tribes to develop
their respective energy resources. The Energy Policy Act, or
2005 Energy Act, provides the regulatory and policy framework
for tribal energy self-determination. To date, however,
Congress has not appropriated the necessary resources for
Indian tribes to realize this new law's intended benefits.
For example, Title V of the 2005 Energy Act authorizes
tribes to create tribal energy resource agreements, or TERA,
but developing and obtaining Federal approval for a TERA is
likely to cost hundreds of thousands of dollars. In addition,
the 2005 Energy Act requires an Indian tribe to demonstrate the
institutional capacity to implement a TERA before the Secretary
can approve the TERA.
CRIT has identified an appropriate funding source to
establish the capacity CRIT needs to implement the 2005 Energy
Act under Federal law. The revenue derived from operating BIA's
power system is held in a special account under 25 U.S.C.
Sec. 385[c]. This revenue may only be expended for the project
where it was generated.
The law already authorizes the Bureau of Indian Affairs, or
BIA, to expand these power proceeds and the related investment
income on a revolving fund basis for the BIA's power system at
CRIT. CRIT seeks legislation providing that the Secretary of
Interior may disburse some of these proceeds directly to CRIT
for the purpose of developing CRIT's institutional, managerial
and technical capacity envisioned by the 2005 Energy Act.
The Department raises three objections to the provisions of
Section 2 of H.R. 5680. First, the Department asserts that such
a diversion would be inappropriate because the funds are not
held in trust by the United States and are necessary to
maintain and operate the BIA power system.
CRIT does not agree. The funds CRIT seeks to access consist
of excess revenues, the annual revenues that are greater than
the annual cost of operation and maintenance from the BIA power
utility on the Colorado River Indian Reservation. H.R. 5680
therefore does not take funds necessary from the operation and
maintenance of the power system away from the BIA power
utility.
Second, the Department asserts, in addition, that the funds
are the subject of pending litigation recently initiated by
CRIT in Federal District Court.
CRIT does not agree. CRIT initiated action in Federal
District Court to challenge the purposes for which the BIA was
expending funds from the power account. The funds are not
themselves the subject of pending litigation initiated by CRIT.
Instead, it is attempting to assure that BIA expenditures of
these funds are both proper and lawful under 25 U.S.C. 385[c].
Third, the Department further asserts that Section 385[c]
identifies certain general purposes for which power revenues
may be expended, none of which involve the disbursement to a
tribe.
CRIT does not agree. While the Code does identify purposes
for which the power revenues may be expended, as the Department
stated in its briefs in Federal District Court, Congress may
authorize the use of these funds for other purposes, at least
in instances where the relevant tribal beneficiary grants its
consent.
In response to a critical need for irrigation water on an
Indian irrigation project in Arizona, Congress authorized BIA
to use the funds held in the power account to purchase
irrigation water. There is also precedent for making these
funds directly available to the respective tribal beneficiary.
The legislation that conveyed the BIA's irrigation project
to the Salt River Pima Maricopa Indian Community included a
provision allowing the community to collect and disburse the
fees collected pursuant to the 1946 Act. Similarly, in this
case CRIT is asking Congress to authorize the expenditure of a
small portion of these excess revenues made up primarily of
interest from the power account to enable CRIT to develop a
tribal department of energy to oversee the power system.
CRIT has significant but unrealized potential for energy
development. CRIT has a sizable amount of undeveloped land in
both Arizona and California and, perhaps most important, our
reservation is strategically located at a crossroad of several
major interstate energy transmission corridors for both
electricity and natural gas and in a high solar radiation belt.
These major resources invite CRIT electric energy
developments, including renewable solar and other forms of
renewable electricity generation, as well as more conventional
thermal and pump storage installations. Opportunities also
exist for alternate fuels, namely biofuel and compressed
natural gas production.
The only thing missing is the funding that CRIT needs to
develop a TERA and to establish the administrative and
regulatory structure that Congress envisioned when it passed
the 2005 Energy Act. Enacting Section 2 of H.R. 5680 is an
essential step in making the shared Federal/tribal vision of an
energy future a reality.
Once again, we would like to thank Chairman Rahall for
holding this hearing and Congressman Grijalva for his
leadership in introducing this legislation. Thank you.
[The prepared statement of Ms. Welsh-Tahbo follows:]
Statement of Valerie Welsh-Tahbo, Secretary, Tribal Council,
Colorado River Indian Tribes, on Section 2 of H.R. 5680
I. Summary
The Colorado River Indian Tribes (``CRIT'') appreciates the
opportunity to testify in favor of Section 2 of H.R. 5680 (Grijalva) (a
Bill to Amend Certain Laws Relating to Native Americans). CRIT would
also like to thank Congressman Grijalva for his sponsorship of H.R.
5680 and for his support for CRIT's effort to achieve greater energy
independence. Enacting Section 2 of this bill provides essential
support for making the Federal policy of tribal energy self-
determination a reality on CRIT's Reservation. CRIT would like to
propose some amendments to this provision to avoid unnecessary delays
in implementing the new law. Before addressing these amendments, it may
be helpful to summarize CRIT's proposal and to provide some background
information.
II. Summary of CRIT's Proposal
Federal law strongly encourages Indian tribes to develop their
respective energy resources. The Energy Policy Act of 2005 (``2005
Energy Act'') provides the regulatory and policy framework for tribal
energy self-determination. To date, however, Congress has not
appropriated the necessary resources for Indian tribes to realize this
new law's intended benefits. For example, Title V of the 2005 Energy
Act authorizes Tribes to create Tribal Energy Resource Agreements
(``TERA''). But developing and obtaining Federal approval for a TERA is
likely to cost hundreds of thousands of dollars. In addition, the 2005
Energy Act requires an Indian tribe to demonstrate the institutional
capacity to implement a TERA before the Secretary can approve the TERA.
CRIT has identified an appropriate funding source to establish the
capacity CRIT needs to implement the 2005 Energy Act. Under Federal
law, the revenue derived from operating the BIA's power system is held
in a special account under 25 U.S.C. Sec. 385c. This revenue may only
be expended for the project where it was generated. The law already
authorizes the Bureau of Indian Affairs (``BIA'') to expend these power
proceeds and the related investment income on a ``revolving fund''
basis for the BIA's power system at CRIT. CRIT seeks legislation
providing that the Secretary of Interior may disburse some of these
proceeds directly to CRIT for the purpose of developing CRIT's
institutional, managerial, and technical capacity envisioned by the
2005 Energy Act.
III. Background
The BIA's management of the funds collected from the BIA power
system at CRIT (and on other Indian irrigation and power projects) is
dictated by laws enacted in 1946, 1951, and 1983.
In 1946 Congress granted ``permanent appropriations'' status to
allow ongoing disbursements of Indian electrical power accounts
proceeds on a revolving fund basis ``in connection with the respective
projects from which such revenues are derived,'' for the following four
purposes: (1) payment of the expenses of operating and maintaining the
power system; (2) creation and maintenance of reserve funds to be
available for making repairs and replacements to the power system; (3)
amortization of power system construction costs; and (4) payment of
other expenses and obligations chargeable to power revenues to the
extent required or permitted by law. The BIA has indicated, and CRIT
agrees, that the last two purposes are not applicable to the CRIT power
system.
The Fiscal Year 1952 Appropriations Act further clarified the BIA's
authority to expend revenue from these special power accounts, such as
CRIT's.
There is hereby appropriated...the amount of power revenues
covered into the Treasury during the current and each
succeeding year to the credit of each of the [Indian] power
projects...to remain available until expended for the purposes
authorized by [the 1946 Act]...in connection with the
respective projects from which such revenues are derived.
The BIA's authority to expend these Indian power revenues for the
four authorized purposes is not dependent on annual appropriations
legislation. Nevertheless, Congress may authorize the use of these
funds for other purposes, at least in instances where the relevant
tribal beneficiary grants its consent. In response to a critical need
for irrigation water on an Indian irrigation project in Arizona,
Congress authorized the BIA to use the funds held in a power account to
purchase irrigation water. 1 There is also precedent for
making these funds directly available to the respective tribal
beneficiary. The legislation that conveyed the BIA's irrigation project
to the Salt River Pima-Maricopa Indian Community (``Community''),
included a provision allowing the Community to collect and disburse the
fees collected pursuant to the 1946 Act. 2
---------------------------------------------------------------------------
\1\ Public Law 101-301, section 13 (1990).
\2\ Public Law 106-568, section 102(a) (2001).
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The Fiscal Year 1984 Interior Appropriations Act, Public Law 98-146
(``1984 Appropriations Act''), provides for the BIA to invest Indian
power accounts and to apply the investment proceeds for use in
connection with the project where the funds were collected. In
particular, this law provides for the use of these interest accruals to
cover operation and maintenance expenses on the power system where the
funds were collected. CRIT believes that is also appropriate to make
these investment proceeds immediately available to allow CRIT to
address its energy development opportunities.
Several years ago CRIT insisted that the BIA evaluate and update
its electrical rate structure to ensure that the project would generate
a sufficient annual surplus to capitalize the power system's critical
infrastructure needs. The BIA reports that the current balance of the
power fund is approximately $11 million. As a result of CRIT's effort,
the fund's annual growth is approximately $1.5 million. Based on the
information available to CRIT, this appears to constitute an
appropriate level of growth, even taking into account the direct
disbursement to CRIT. In fact, after factoring in the investment
proceeds that accrue to this fund pursuant to the 1984 Appropriations
Act, it is clear that an annual disbursement to CRIT of $350,000 is
appropriate. CRIT urges the Committee to amend H.R. 5680 to authorize
the immediate disbursement of this amount. In CRIT's view, the best way
to ``invest'' the power fund is to ensure that CRIT has the technical
and managerial expertise to help develop and use its significant energy
resources. In addition, there is no reason to limit CRIT's access to
this fund to this annual disbursement. There are other policies and
programs established by the 2005 Energy Act that might also be funded
from the power fund. CRIT encourages the Committee to amend Section 2
to allow greater flexibility to direct the funds proceeds for purposes
that are otherwise authorized by the 2005 Energy Act.
CRIT has significant, but unrealized potential for energy
development. CRIT has a sizable amount of undeveloped land in both
Arizona and California, and--perhaps most important--our Reservation is
strategically located at the cross-road of several major interstate
energy transmission corridors for both electricity and natural gas and
in a high solar radiation belt. (Solar energy production on our
Reservation is without question a year-round proposition.) These major
resources invite major CRIT electric energy developments, including
renewable solar and other forms of renewable electricity generation, as
well as more conventional thermal and pumped storage installations.
Opportunities also exist for alternate fuels, namely biofuel and
compressed natural gas production. Moreover, CRIT and its members can
save money and energy by learning and adopting proven energy efficiency
practices. The only thing missing is the funding that CRIT needs to
develop a TERA and to establish the administrative and regulatory
structure that Congress envisioned when it passed the 2005 Energy Act.
Enacting Section 2 of H.R. 5680 is an essential step in making this
shared Federal-Tribal vision of an energy future a reality.
With a few changes to Section 2 of H.R. 5680, CRIT is ready to hit
the ground running and serve as a flagship effort to implement the 2005
Energy Act. CRIT is hopeful that its effort to implement the 2005
Energy Act and achieve energy self-determination will provide other
Indian tribes will valuable insights and ideas for use on their
reservations.
Once again we would like to thank Chairman Rahall for holding this
hearing and Congressman Grijalva for his leadership in introducing this
legislation.
______
The Chairman. Thank you.
Mr. Day?
Mr. Day. Good morning, Mr. Chair and Committee.
The Chairman. Excuse me. Excuse me just a second. Let me
introduce our colleague and a former Member of our committee,
The Honorable George Radanovich from California.
Mr. Radanovich. Thank you, Mr. Chairman. Mr. Chairman,
thank you so much for the time.
I just wanted to welcome my constituent, Chairman Kevin
Day, who is Chairman of the Tuolumne Me-Wuk Tribe in Sonora,
California, here to speak on H.R. 3490, a land transfer bill in
the area. It is well put together. It is for good purposes.
I want to welcome you, Kevin, to Washington and look
forward to your testimony.
Again, thank you very much, Mr. Chairman, for the
opportunity.
The Chairman. Thank you, George.
Chairman Day, you may proceed.
STATEMENT OF THE HONORABLE KEVIN DAY, CHAIRMAN, TUOLUMNE ME-WUK
TRIBE
Mr. Day. Thank you. Again, good morning to the Chairman and
the Committee. My name is Kevin Day. I am the Chairman of the
Tuolumne Band of Me-Wuk Indians. I want to thank you for
holding this hearing.
They wrote me this big, old speech thing here, but I am
just going to spit out what is good here.
The Chairman. That sounds great.
Mr. Day. I couldn't remember it anyway. I will give you a
little background of our tribe. We are a small tribe in central
California about an hour north of Yosemite. We have
approximately 400 members. One hundred and fifty of those
members reside on the reservation, and that is the importance
of this bill--more housing for our tribal members.
I think if I were to invite you out to our reservation to
see our situation, you would understand the need for more
housing on our reservation. Right now, we have approximately 64
homes on the reservation, and it is just not adequate enough.
We have people standing in line trying to move back home, my
family included.
I think this piece of legislation is pretty
straightforward. It basically transfers the BLM land into BIA,
which would in turn hold it in trust for our tribe to do the
things we need to do.
I will talk a little bit about the three parcels that mean
a lot to the tribe. The first piece is the small piece, Parcel
No. 1. It is approximately a half acre. That is our burial
ground for our tribal members. Right now, it is really hard to
maintain those properties when BLM has basically control over
that. We would just like to have the opportunity to maintain
that properly so we can have our people rest there.
The second piece is approximately 15 acres. There is a need
for emergency services buildings on our reservation, where now
we don't have any room. What we would propose there is our
tribal security and our fire department would be housed there,
along with other tribal infrastructures. The biggest concern is
a place to put our cultural center.
Then our third piece is about 50 acres, where we propose to
do more housing for the tribe. We have 350 acres in trust now,
which isn't a lot, but most of it is not buildable, just based
on the terrain in our area.
It is just a huge need for us to get this done. Like I said
before, I appreciate you hearing us here, and I appreciate Mr.
Radanovich for introducing this bill. He has been to our area,
and he understands the need there.
I want to make one thing clear. There is absolutely no
gaming attached to this at all. We have a small casino on our
reservation, and it provides us a sufficient amount of revenue
to run our programs we have there. We have a compact with the
state, and we will honor that compact to the utmost.
If there is any other information you need, and I am trying
to make this short because I don't like to do this very much.
The Chairman. You are doing very well.
Mr. Day. But if there is any other information you need or
any questions, we will make sure we get them back to you. Thank
you.
[The prepared statement of Mr. Day follows:]
Statement of Kevin Day, Tribal Chairman,
Tuolumne Band of Me-Wuk Indians, on H.R. 3490
Good Morning Mr. Chairman:
My name is Kevin Day and I am the Chairman of the Tuolumne Band of
Me-Wuk Indians of the Tuolumne Rancheria. Thank you for holding this
hearing on H.R. 3490.
I'd like to start by giving you some background; the Tuolumne Band
of Me-Wuk Indians is a small federally recognized California Tribe with
an approximate membership of around 400 people. Our modern tribal
government was organized under the Indian Reorganization Act in January
of 1936. As you can see on the California State map (attached as
Exhibit A) our small reservation is located in the western foothills of
the Sierra Nevada, approximately one hour north of Yosemite National
Park and two hours east of Sacramento. We operate a successful casino
under a compact with the State of California, a new and very successful
health clinic that serves both, native and non-native customers, a
native plant nursery business, and numerous governmental service
programs.
While we are proud of our success, our current tribal land base has
presented us with some serious problems that we need your help to
overcome. Presently, only 150 of our members are actually able to
reside on our tribal lands, because all of our existing trust land is
currently used for administrative offices or housing, or it is not well
suited for new construction. In fact, a study of our unused lands has
found that their rocky and hilly terrain is best suited for the grazing
of livestock.
Lack of available housing for tribal members is one of our most
serious problems. Today, we have approximately 64 on-reservation homes,
which are fully occupied. Many of these homes are seriously
overcrowded, and we are constantly finding ourselves addressing health
and safety issues within them. Many of our off-reservation members wish
to return to the reservation, but our lack of housing sites makes those
moves impossible. To make matters worse, many of our children, who were
raised on the reservation, are being forced to leave when they reach
adulthood in order to find their first home. That is why the early
passage of H.R. 3490 is so important to us.
H.R. 3490 is a very straightforward piece of legislation. It
transfers three small parcels of surplus land from the Bureau of Land
Management (BLM) to the Bureau of Indian Affairs (BIA) to be held in
trust for the benefit of our Tribe. It also extends the boundaries of
our reservation to encompass those new BLM lands as well as the other
lands our Band has acquired in recent years. This reservation boundary
extension is very important to us because many federal programs,
including some Indian housing programs, draw a clear distinction
between on and off-reservation assistance. While the Secretary of
Interior has the legal authority to extend the boundaries of most
existing reservations, he lacks that authority in our case because our
reservation, like many in California, was established by Executive
Order. Thus, we need your help to accomplish this simple goal.
If you will turn now to the map which is attached to my testimony
and labeled as Exhibit B, I would like to describe the parcels we are
requesting to transfer. This map has parcels that are color coded in
yellow, blue and green. The light and dark Yellow parcels are lands
which are currently held in trust for the Tuolumne Band. The star in
the light yellow parcel is our tribal headquarters and the star in the
dark yellow parcel shows you where our tribal casino is located. This
casino is operated pursuant to an existing compact with the State of
California and in accordance with an existing Memorandum of
Understanding with Tuolumne County. The Blue parcels are the BLM lands
we are seeking to acquire, and the green parcels are lands which the
Tribe currently owns in fee simple. Those lands are pending tribal
trust acquisition under the normal fee-to-trust process.
All of the blue BLM parcels have been listed as ``potentially
available for disposal'' on recent BLM land reports. The first parcel,
identified as # 1, is located less than 1/2 mile from our existing
tribal trust lands. That parcel contains a historic Tuolumne Me-Wuk
cemetery. Because of the site's cultural and religious significance,
the BLM has, for all intended purposes, simply allowed the Tribe's use
and maintenance of the parcel for many years. This cemetery is still in
use today. In fact, one of our Tribal Members was buried there less
than three years ago. We have always sought to acquire this parcel in
trust because of its deep cultural significance to our people, but our
efforts have become even more desperate since the BLM has listed it as
``potentially available for disposal.'' Simply put, we cannot lose
control of the graves of our people and of our ancestors.
The BLM parcel identified as # 2 is a small site of around 15-16
acres. As you can see on that map, this site is contiguous to lands
already held in trust and in fee simple by the Band This is a vacant
parcel which was originally set aside by BLM, in accordance with the
Federal Recreation and Public Purpose Act, for the establishment of an
inter-tribal health facility and a tribal cultural center. Due to
unforeseen circumstances, the intertribal health facility was never
developed and the Tribe is no longer apart of the intertribal health
consortium. We have located our health facility on other tribal fee
land; however, we have notified BLM that we are still pursuing the use
of this land for our cultural facility. Our goal is to use this parcel
for a tribal fire and emergency center, a tribal cultural center and
perhaps some tribal government buildings, none of which are related to
gaming in any way.
The third BLM parcel, identified as # 3, is a slightly larger site
of around 50 acres. Like parcel #2, it is vacant and it is also
contiguous to our existing tribal land holdings. This parcel has been
totally unused by the BLM for many years and our goal is to put it to
use for tribal housing and tribal infrastructure buildings. Like I
noted above, we cannot bring our people home to their own tribal lands
unless we can provide them with a place to live.
The parcels identified in green are lands which the Tribe owns in
fee simple. All of these parcels are currently awaiting a final
transfer into trust. The Tribe submitted a standard 151 fee-to-trust
application for these parcels and received the Secretary's approval of
that application on January 12, 2007. Unfortunately, that transfer of
title has been held up by a frivolous appeal filed by a contiguous
landowner who is seeking leverage to force the Tribe to buy their
property at an inflated price. The BIA and the Tribe are both fighting
that appeal vigorously and we have every reason to believe that the
Interior Board of Indian Appeals (IBIA) will simply dismiss the case
and order the land taken into trust as soon as it gets the time to read
the case files. The IBIA is seriously understaffed and it has taken an
average of two to four years for it to issue a final decision on any
appeal brought before it, regardless of the merits. Anything that you
can do to help speed that process along in our case would be greatly
appreciated.
With the exception of a small home-site of around 3 acres, which is
surrounded by BLM Parcel #2, and which we are in friendly negotiations
to acquire from its current non-Indian owner, every parcel of land
encompassed within the new reservation boundaries drawn by H.R. 3490 is
owned by the Tuolumne Band, either in trust or in fee. We are located
in a Public Law 83-280 state, so the re-designation of our reservation
boundaries will not alter the criminal jurisdiction over these parcels.
Additionally, the fee properties at issue were already zoned
residential when we acquired the title, and we have maintained that
zoning under our tribal laws and started to prepare our housing
development plans. The BIA has conducted a full environmental review
under NEPA for the fee to trust acquisition, including our proposed
uses for the parcels.
Finally, the Tribe and Tuolumne County have developed and executed
a Memorandum of Understanding (MOU) which sets forth protocols for all
interaction between the County and the Tribe. That Agreement, which was
executed on January 16, 2001, has allowed us to maintain a good faith
working relationship with our local governments. The MOU sets forth a
process for the County and the Tribe to follow concerning any impacts
that the County may experience when lands are taken into trust for the
benefit of the Tribe. Our fee to trust application addresses potential
tax impacts the County may experience. Thus, our future trust
acquisition will have nothing but a positive impact on the County's tax
base. We therefore believe that all of our local jurisdictional issues
have already been resolved. In fact, Tuolumne County has signed written
statements of support for the transfer of the BLM lands to the Tribe
and for the Tribe's fee to trust application of the parcels codes in
green. Those letters are attached to this testimony as Exhibits C.
Finally, we have been working with our local Tuolumne Fire Protection
District and they have also supported our fee to trust application by
the letter found at Exhibit D.
In closing, I would like to make it very clear that this bill has
nothing to do with gaming. Under Section 3 (a) the bill makes it clear
that the BLM lands we are seeking to transfer shall be ``held in trust
by the United States for the benefit of the Tribe for non-gaming
purposes''. Additionally, as I just noted, the fee parcels being added
to the reservation are already zoned residential and our housing and
infrastructure development plans are already underway.
Mr. Chairman, I hope that I have provided you with all of the
information that you require to report this bill to the House floor in
the immediate future. I will be happy to answer any questions that you
may have or provide you with any additional information that you need.
Again, thank you for taking the time to entertain this very important
bill for the Tuolumne Band of Me-Wuk Indians.
EXHIBIT A
[GRAPHIC] [TIFF OMITTED] T1818.001
EXHIBIT B
[GRAPHIC] [TIFF OMITTED] T1818.002
EXHIBIT C
[GRAPHIC] [TIFF OMITTED] T1818.003
[GRAPHIC] [TIFF OMITTED] T1818.004
EXHIBIT D
[GRAPHIC] [TIFF OMITTED] T1818.005
______
The Chairman. Thank you, Chairman Day.
Chairwoman Fidelia?
STATEMENT OF THE HONORABLE FIDELIA ANDY, CHAIRWOMAN, COLUMBIA
RIVER INTER-TRIBAL FISH COMMISSION
Ms. Andy. Good morning. Chairman Rahall, thank you for this
opportunity to testify. I also want to thank Congressman
Grijalva for sponsoring this bill, which includes a much needed
amendment of the Columbia River Treaty fishing access sites.
My name is Fidelia Andy. I am an elected leader of the
Yakama Nation and also chair of the Columbia River Inter-Tribal
Fish Commission, which we call CRITFC for short. CRITFC
consists of my tribe and the Warm Springs, Nez Perce and
Umatilla tribes. Jaime Pinkham from the CRITFC staff is also
here to assist in answering any questions.
We need to recall a history of promises and setbacks to
understand the significance of our technical amendment. Fish,
especially salmon, is important to our tribes. In 1855, our
treaties committed the U.S. to assure our right to take fish in
perpetuity across our ancestral homelands, as well as usual and
accustomed places.
Before the settlers arrived, a tribal fishery thrived on
the Columbia River. You could find villages and camping sites,
structures to care for our fish and equipment, spots to launch
our boats and platforms for fishing. In the 1880s, non-Indian
encroachment began restricting access to our usual and
accustomed fishing grounds.
In the 1930s, traditional fishing sites were flooded after
the Corps of Engineers built the first of four dams. In 1939,
the U.S. agreed to provide sites in lieu of those lost and
built facilities to support our fisheries. The result was only
five sites on 40 acres.
More dams inundated more fishing grounds. In 1988, Congress
authorized new sites and facilities through Public Law 100-581,
the Act required to transfer the completed sites from the Corps
to the Bureau of Indian Affairs. Today 29 sites are scattered
along roughly 130 river miles of development with boat launches
and docks, fish cleaning stations, sheds for curing fish and
camping facilities.
In 1995, a memorandum of understanding facilitated the
transfer from the Corps to the BIA, both the sites and funding
for operation and maintenance, O&M. BIA was expected to invest
the funds to earn extra income to support O&M for 50 years, to
2045. BIA also agreed to contribute $250,000 per year for the
first eight years of the MOU.
Unfortunately, the BIA didn't contribute their share and,
although they received the O&M funds from the Corps, they
lacked authority to invest them. Instead, the BIA spent almost
$2 million of the principal from 1996 to 2003, thereby reducing
the term of the fund to less than 50 years. In 2003, under a
Self-Determination Act agreement, BIA transferred the remaining
O&M balances to CRITFC so that we could begin earning interest.
We also assumed O&M responsibility for the sites.
However, the Self-Determination Act restricts investment to
Federally backed instruments with typically low yields of two
to six percent. This restriction, on top of the BIA's lack of
contribution per the MOU, coupled with their depleting
principal rather than investing, will exhaust the O&M account
before 2025, leaving no funding in the final 20 years.
While the investment of the principal is restricted, the
subsequent interest earnings are not. In the 30 months ending
last December, the restricted principal yielded 4.5. However,
our investment of the unrestricted interest account earned over
13 percent. CRITFC worked closely with a reputable fund manager
on prudent investment standards for both the principal and
interest accounts.
On average, we spend about $450,000 per year for O&M. Using
current estimates of the investment restriction remaining
unchanged, an additional $4.6 million in principal is required
to receive O&M through 2045. However, if we lift the
restrictions to afford returns close to eight percent, we
estimate $2.3 million of new principal is needed, an amount
that would even satisfy BIA's commitment in their MOU.
Last year we asked the Interior Department to find a
solution to the restriction imposed by the Self-Determination
Act. They were unable to find a fix. Therefore, without
objection, the staff at the time began working with the House
and Senate on a technical amendment to Public Law 100-581. This
is the amendment found in Section 9 of H.R. 5680 exclusively
for the Columbia River fishing sites.
Rest assured that we are sophisticated and capable of
making prudent investments. Section 9 of H.R. 5680 can extend
the current O&M funds by eight to nine years. It began to
overcome past shortcomings by enabling us to achieve better
yields than we are currently allowed. To complement this
amendment, we continue to seek the funds pledged by BIA.
We wish this amendment wasn't necessary, but now it is. We
are meeting our responsibilities, but our Federal partner
struggles to meet. They are casting a short-term fate for the
O&M funds. We hope our Federal trustee understands the need for
this amendment by offering unqualified support. We also expect
them to satisfy their commitment in the MOU.
This amendment protects the Federal investment established
by the construction of the treaty fishing sites. It is also
crucial to the tribal commercial, ceremonial and subsistence
fisheries, and it honors overdue commitments when the dams were
built and our treaties signed.
Thank you for this opportunity to testify. I would be happy
to answer any questions. Thank you.
[The prepared statement of Ms. Andy follows:]
Statement of The Honorable Fidelia Andy, Chairwoman,
Columbia River Inter-Tribal Fish Commission, on H.R. 5680
Chairman Rahall, on behalf of the Columbia River Inter-Tribal Fish
Commission, thank you for inviting me to testify on H.R. 5680. I also
want to thank Congressman Grijalva for sponsoring this legislation
which includes a much needed technical amendment under Section 9 for
the Columbia River Treaty Fishing Access Sites.
I am Fidelia Andy, Chairwoman of the Columbia River Inter-Tribal
Fish Commission and an elected leader of the Confederated Tribes and
Bands of the Yakama Nation. I am a descendent of the signers of the
1855 treaty between the Yakamas and the United States Government. I
fished the Columbia River and I clearly understand the impact that the
construction of the dams has caused to the tribal way of life.
The Columbia River Inter-Tribal Fish Commission (CRITFC) was formed
in 1977 by resolutions from the four Columbia River treaty tribes:
Confederated Tribes of the Umatilla Indian Reservation, Confederated
Tribes of the Warm Springs Reservation of Oregon, Confederated Tribes
and Bands of the Yakama Nation, and Nez Perce Tribe. CRITFC's mission
is to ensure a unified voice in the overall management of the fishery
resource and to assist in protecting reserved treaty rights through the
exercise of the inherent sovereign powers of the tribes. CRITFC
provides coordination and technical assistance to the tribes in
regional, national and international efforts to ensure that outstanding
treaty fishing rights issues are resolved in a way that guarantees the
continuation and restoration of our tribal fisheries into perpetuity.
To understand the significance of our technical amendment for the
Columbia River Treaty Fishing Access Sites, we need to take into
account our history that stretches beyond 10,000 years ago to time
immemorial. And we need to review the history over the last two
generations that included more promises yet repeated delays and
setbacks resulting from federal inaction.
The combined ancestral homelands of our four tribes cover roughly
one-third of the entire Columbia River Basin in Washington, Oregon and
Idaho. Salmon has always been a unifying figure providing both physical
and cultural sustenance. Collectively, we gathered at places like
Celilo Falls to share in the harvest, forging alliances that exist
today. The importance of fish, especially salmon, to our tribes cannot
be overstated. In 1855 when our four sovereign tribes and the United
States collaborated and negotiated treaties, our tribal leaders
explicitly reserved--and the U.S. agreed to assure--our right to fish
in perpetuity within our ancestral homelands as well as ``at all usual
and accustomed places''. We kept our word by ceding about 40 million
acres of our homelands to the U.S. and the U.S. pledged to honor our
ancestral rights.
In 1905 in the famous case of U.S. v. Winans, the U.S. Supreme
Court stated that fishing was ``not much less necessary to the
existence of the Indians than the atmosphere they breathed.'' This
statement, from the highest court in the land over a century ago,
symbolizes salmon as an integral part of our cultural, economic and
spiritual well-being.
Before the arrival of non-Indian settlers a tribal fishery thrived
on the Columbia River. By the late 1880's, non-Indian encroachment
blocked access to many of our usual and accustomed fishing grounds. In
the late 1880s, Special Indian Agent George Gordon investigated the
Columbia River tribal fisheries and found that Indian fishers were
being excluded from many of their traditional fishing grounds. Agent
Gordon submitted his findings and recommended that the U.S. secure
approximately 2,300 acres along the river for use by tribal fishers.
Although the government never acted on his recommendations, the U.S.
did file several lawsuits seeking to protect the tribes' right to take
fish at usual and accustomed fishing grounds (e.g., U.S. v. Taylor,
U.S. v. Winans, U.S. v. Seufert Brothers, and U.S. v. Brookfield
Fisheries). These lawsuits firmly established as a matter of law the
tribes' treaty-protected right of access to usual and accustomed
fishing grounds.
During the 1930's, the Army Corps of Engineers (COE), responding to
congressionally mandated studies, proposed that a series of dams be
built along the Columbia River. The Bonneville Dam was the first to be
built inundating approximately 37 tribal fishing sites. In 1939, a
settlement agreement between the tribes and the U.S. was made to
furnish sites in lieu of those lost. The agreement provided for the War
Department to acquire approximately four hundred acres of lands at six
sites along the Columbia River and install ancillary fishing facilities
to be used by the treaty tribes. The agreement was approved by the
Secretary of War in 1940 and by Congress in 1945 (Public Law 79-14).
However, it took the COE nearly twenty years to acquire five sites,
totaling only slightly over 40 acres. These sites are commonly referred
to as ``in lieu'' sites.
As more dams were built more tribal fishing grounds disappeared. In
1973, in a settlement order entered by the U.S. District Court for
Oregon in CTUIR v. Calloway, the Secretary of the Army and the
Secretary of the Interior agreed to propose legislation to provide
acquisition and improvement of additional sites and the upgrading of
all sites to National Park Service standards. Legislation was forwarded
to Congress in 1974, but no action was taken.
During the late 1970's and 1980's tensions continued to grow.
Increased fish runs in mid-1980 increased the use and pressure on the
existing in lieu sites resulting in the need for improvements and
additional fishing access sites. Conflicts also grew with increased
non-Indian use of the treaty sites for recreational activities along
the Columbia River. From 1982--1986, legislation to establish a
Columbia Gorge National Scenic Area was considered by Congress. During
consideration of this legislation, the tribes once again brought
attention to the fact that the federal government still owed
significant acreage for fishing sites per the 1939 agreement. Although
Congress did not address the in lieu site issue in the passage of the
Gorge Act, they indicated they would consider providing additional
fishing access sites in the future.
In 1987 and 1988, at the request of the Senate Select Committee on
Indian Affairs, the tribes identified a number of locations that could
be suitable for additional sites. During hearings in 1988,
representatives from the COE testified that they required new
legislation before they could provide additional sites. Congress
responded with P.L. 100-581 (Title IV, Columbia River Treaty Fishing
Access Sites) in November 1988. This legislation authorized new sites
and facilities and required an interagency transfer of the properties
from the COE to the Interior Department ``for the purpose of
maintaining the sites.'' This included sites behind Bonneville, The
Dalles and John Day Dams on the Columbia River in Oregon and
Washington. As sites were completed they were transferred to the Bureau
of Indian Affairs (BIA) within the Interior Department. The Act also
authorized the rehabilitation of the original ``in lieu sites''
constructed under the P.L. 79-14. To date 29 sites have been completed
and one site is undergoing planning leaving one, possibly two sites
remaining.
Subsequent amendments have been enacted to modify the legislation.
These amendments provide the COE with flexibility on technical boundary
adjustments, increases of authorization for appropriations, authorizing
the transfer of funding for operations and maintenance to the BIA, and
authorization to make improvements at Celilo Village.
In 1995, the COE and BIA agreed to a Memorandum of Understanding
(MOU) to effectuate the transfer of facilities and lands and to provide
operations and maintenance (O&M) funding. The COE agreed to provide a
lump sum of monies for each set of sites and then transfer those monies
to the BIA for O&M when the sites were completed. The amount of O&M
needed was calculated under a capitalized cost basis relying on a 7.75%
discount rate with the assumption that the BIA would invest the funds
in an interest bearing account to create a steady O&M funding stream
for 50 years (to 2045). In the MOU the BIA also agreed to provide at
least $250,000 per year for the first eight years beginning in 1996.
Unfortunately, the BIA never contributed their share and they
lacked authority to invest the O&M funds provided by the COE. Instead,
BIA spent about $2 million of the principal from 1996 to 2003 to cover
O&M thereby reducing the term of the fund to less than 50 years. The
tribes repeatedly indicated their desire to get the COE-provided funds
into an interest bearing account.
In a July 1999 letter from the COE District Engineer to the
Chairman of Confederated Tribes of the Umatilla Indian Reservation, the
COE even committed to increasing their contribution under the 1995 MOU
with the BIA by $1.2 million if BIA satisfied three conditions. Those
conditions were: ``First, the funds need to be invested in an interest
bearing account. Second, the BIA needs to continue to provide their
contributions under the agreement. Third, there needs to be strong
technical justification for the increase.'' Unfortunately, this was
another lost opportunity since BIA never met any of these conditions
which were quite simply the BIA's commitments in the first place. The
additional money from the COE has never been provided.
Later, it was determined that the best way to accomplish investment
of the funds was for the tribes to take over the funds. In 2003, under
a Self-Determination Act agreement, BIA transferred the O&M balance
(approximately $5.5 million) to CRITFC so the funds could begin earning
interest. CRITFC also assumed O&M responsibilities for the sites on
January 1, 2004.
However, under 25 USC Sec. 450e-3 of the Self-Determination Act,
investments are restricted to low earning federally-backed instruments
that typically yield 2 to 6%. With the BIA's lack of contribution per
the MOU and the fact they spent principal instead of investing the
funds, these investment restrictions add to the inadequacy of O&M
funding needs. Under these restrictions with the current fund balance
we estimate that the O&M account will be depleted before 2025 leaving
no funding over the final 20 years.
While the investment of principal is restricted, the subsequent
interest earnings are not. Over the 30 months ending December 2007, the
restricted principal account yielded a 4.51% return compared to
CRITFC's investment of the unrestricted interest account which earned
13.16%. CRITFC works closely with a reputable fund manager on prudent
investment standards for both the principal and interest accounts.
CRITFC also meets at least quarterly with the fund manager and
presentations are provided by the manager to the CRITFC Commission. In
accordance with the Self-Determination Act agreement, CRITFC prepared
and submitted to BIA, an investment policy for both the restricted
account and the unrestricted interest account.
Starting in early 2007 CRITFC met with the Interior Department to
find a solution to the investments restrictions. Interior staff was
unable to find a solution to the restrictions imposed under the Self-
Determination Act. Therefore, without objection by the Interior staff
at the time, CRITFC began working with the House and Senate on a
technical amendment to P.L. 100-581 to provide an exemption to the
restriction specifically for the in lieu and treaty fishing access
sites on the Columbia River.
The four-year average for O&M is approximately $449,900 per year
for the 29 existing sites. If the investment restrictions are left in
place, an additional $4.6 million of principal is needed to revive O&M
to cover the 50 year time frame. However, if we are able to lift the
restrictions to afford returns closer to a historical market rate of
8%, we estimate that we would need an additional $2.3 million in
FY2009. This amount would also satisfy BIA's commitment in the MOU. If
funding is delayed until FY2010 we estimate $2.5 million will be
needed.
We support Section 9 of H.R. 5680. This technical amendment is
narrow and applies only to the Columbia River Treaty Fishing Access
Sites. The amendment would have a significant impact by extending the
current O&M fund by another 8-9 years and help us begin to overcome
past disruptions with the O&M funds by enabling CRITFC to apply prudent
investment standards to achieve higher yields than is now permitted. To
complement this effort we will continue to seek funding to fulfill the
BIA's commitment under the 1995 MOU with the COE.
On January 16, 2008, the Columbia River Gorge Commission wrote a
letter supporting our efforts to secure an amendment to P.L. 100-581 to
provide us ``greater investment flexibility'' for these sites. The
Gorge Commission was established in 1987 to develop and implement
policies and programs that protect and enhance the scenic, natural,
cultural and recreational resources of the Gorge. The Gorge Commission
noted that these fishing sites are part of the Columbia River Gorge's
``vital cultural, historical and legal infrastructure.'' The Gorge
Commission further supports funding through the U.S. House and Senate
to satisfy BIA's funding commitment. The Gorge Commission has 13
members: three appointed by each of the governors of Oregon and
Washington, one appointed by each of the six Gorge counties, and a non-
voting representative from the U.S. Forest Service.
CRITFC is prudent in spending funds for routine O&M of the sites in
an attempt to stretch the funding out as long as possible, but this
carries a long term consequence. First, being frugal does not allow
maintenance of the sites to conform to the required National Park
Service standards. Secondly, keeping maintenance costs low means the
sites and facilities will deteriorate faster requiring O&M funds to be
redirected towards major capital expenditures.
CRITFC has met our responsibilities. Our federal partner and
trustee struggled in meeting theirs. The dilemma of the operation and
maintenance funding for the Columbia River Treaty Fishing Access Sites
are not the result of the tribal effort. The current fate of the long
term O&M funding is the result of federal inaction and therefore we
would hope that our federal trustee would understand the need for this
amendment and offer their unqualified support. In addition, we would
hope that they would support the appropriation of funds necessary to
meet the commitment they made in the 1995 MOU with the Army Corps of
Engineers.
It is our hope that this Committee will act favorably on the
technical amendment as written in H.R. 5680 to lift the investment
restrictions for the Columbia River Treaty Fishing Access Sites. This
would protect the federal government's investment in the in lieu and
treaty fishing sites and also continue to satisfy the long overdue
commitments made by the U.S. to our tribes over 75 years ago when the
dams were built and over 150 years ago when our treaties were signed.
Again, thank you for this opportunity to express our support for
this legislation.
,-- ,
CRITFC Contact: Columbia River Inter-Tribal Fish
Jaime A. Pinkham Commission
[email protected] 729 NE Oregon, Suite 200
503-238-0667 Portland, OR 97232
Fax: 503-235-4228 www.critfc.org
______
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______
The Chairman. Thank you.
Mr. Forsgren?
STATEMENT OF DENNIS LEE FORSGREN, JR., CONSULTANT, MICCOSUKEE
TRIBE OF INDIANS OF FLORIDA
Mr. Forsgren. Mr. Chairman, my name is D. Lee Forsgren. I
am here on behalf of the Miccosukee Tribe of Florida.
I was hoping to be able to take the advice of former
Chairman Udall about be brief, be sincere and be seated, so
with that I would ask that my full statement be placed in the
record.
The Miccosukee Tribe is testifying in support of H.R. 5680,
particularly Section 10, which is about a statutory application
into trust. I would like to thank Mr. Grijalva for his efforts
on behalf and also would like to thank Representative Meeks for
his tireless efforts.
The lands in Section 10 are in the Kendal Lakes area in
Miami-Dade County. The tribe has been seeking to have these
lands placed into trust for over five years. We would have
hoped that the administrative process could have been
successful during that excruciating long period. Unfortunately,
it has not.
Just for your information, these lands are well within the
traditional ancestral land areas of the tribe in south Florida
and is a short distance from the existing reservation.
Like I said, we have been waiting for over five years for
the application. We have made every effort to clarify all
actions with the Department, so we have been forced to seek a
legislative remedy. The tribe does not intend to use these
lands for any gaming, and we do not intend to change the usage
of these lands.
With that, Mr. Chairman, if you have any questions, I would
be happy to answer them.
[The prepared statement of Mr. Forsgren follows:]
Statement of Dennis Lee Forsgren, on Behalf of the
Miccosukee Tribe of Florida, on H.R. 5680
Good morning Mr. Chairman, I am Dennis Lee Forsgren Jr. and I am
testifying today on behalf of the Miccosukee Tribe of Florida in
support of H.R. 5680, A bill To amend certain laws relating to Native
Americans, and for others purposes, introduced by Rep. Grijalva (AZ-7)
on April 2, 2008.
The Miccosukee Tribe is especially supportive of Section 10 of H.R.
5680 which would place certain lands currently owned by the Tribe in
Miami-Dade County Florida into Trust. We would like to express our
thanks to Mr. Grijalva for including this provision and to thank
Representative Kendrick Meeks for his tireless efforts on behalf of
this provision.
These lands located in the Kendal Lakes section of Miami-Dade
County Florida near Miami. The legal description of the parcel that the
Tribe seeks to put into trust are well within the Tribes traditional
ancestral area of South Florida. The land is only a few miles from
existing reservation, and would make a highly rational addition to the
Tribe's trust lands
The Miccosukee Tribe of Indians of Florida has been seeking to have
this land, Miccosukee Golf & Country Club enterprise, placed in trust
since 2003. Unfortunately, no final action has been taken by the
Department of the Interior, even though the Tribe long ago clearly
fulfilled all the requirements in law, and there is no sign that final
agency action will be taken in the foreseeable future.
Given the unreasonable period of time that the Bureau of Indian
Affairs has taken regarding the Tribe's request that the Miccosukee
Golf & Country Club enterprise lands be taken into Trust, the Committee
can understand why the Tribe has felt compelled to seek legislative
relief.
For the record the Miccosukee Tribe does not intend to use these
lands for any gaming purpose, and this provision would not permit
gaming in any event. Also the Tribe does not intend to make any
substantive change in land use from their existing use as a golf
course.
Thank you Mr. Chairman and the other members of this committee for
your hard work on H.R. 5680 and I would be happy to answer any
questions that you are the Committee might have regarding Section 10.
______
The Chairman. Thank you very much.
Let me recognize Mr. Radanovich for questions.
Mr. Radanovich. Mr. Chairman, I thank you again for holding
this hearing and for allowing my bill to be heard on this.
Mr. Day, I do have just a couple of brief questions. One
that I wanted to reiterate is that this land exchange and
increased land into the reservation comes with the caveat that
there is no gambling on those lands. Do you want to kind of
state that again for me, if you would?
Mr. Day. That is correct. Even if we wanted to, which we
don't, the market in our area is pretty much absorbed now. We
don't want to expand anything with our casino. It serves us
well now.
Like I said before, it serves all our services and programs
that we need. This absolutely has nothing to do with gaming.
This is for housing and some infrastructure.
Mr. Radanovich. And there was an issue of a survey, I
think. Do you want to kind of explain that?
Mr. Day. Yes. What we would like just before we amend this
bill to exclude the 180 days, we would like a little time to
work with our local agency.
We think that we can work with those folks to use a local
surveyor who is familiar with the parcels. We would like the
opportunity to talk to those folks first.
Mr. Radanovich. And you have received no objection to that
at this point?
Mr. Day. No, not at all.
Mr. Radanovich. Yes. And there is some demonstrated local
support for this as well, isn't there?
Mr. Day. Oh, yes. Our local county board of supervisors
support it, our local fire department supports it, surrounding
neighbors support it. We have no opposition at all.
Mr. Radanovich. Very good. All right. Again, thank you, Mr.
Day, for testifying.
Mr. Day. Thank you.
Mr. Radanovich. Thank you, Mr. Chairman.
The Chairman. Thank you.
Mr. Kildee?
Mr. Kildee. Thank you very much, Mr. Chairman. Thank you in
general for the hearing this morning.
The panel that we have before us right now and the other
panels that have testified today illustrate that over the last
32 years that you and I have served here in this Congress--we
came here together--that the tribes have become more assertive
of their sovereignty, and I encourage that.
You have become more aware of that sovereignty, become more
assertive of that sovereignty, and Congress has become more
aware of their obligation to recognize and defend that
sovereignty. Hearings like this illustrate that.
In the Constitution when they refer to your sovereignty,
they put it in Article I, which is the legislative body. We are
the prime ones with the responsibility. We assign certain tasks
to the Interior Department, but we read here in Article I that
the Congress shall have the power to regulate commerce with
foreign nations and among the several states and with the
Indian tribes.
There, in one sentence, they talk about the three types of
sovereignties. Every time you testify, including this panel
right here today, you illustrate your deep belief in the
reality of your sovereignty.
Today, Mr. Chairman, we have seen tribes referring to
tribes of various size in this country. Size does not determine
sovereignty. We list three sovereignties--several states,
foreign nations and the Indian tribes--here in the
Constitution. Probably one of the smallest nations we recognize
among the category of foreign nations is going to have its
sovereign here soon, the Vatican City.
The Vatican City is 108.7 acres, but its sovereignty is as
high in that category of foreign nations as is Russia, which is
6.6 million square miles. So size does not determine your
sovereignty.
The Constitution doesn't grant you your sovereignty. The
Constitution recognizes it because John Marshall in his famous
decision says you have a retained sovereignty. We didn't give
it to you. It was retained. It was here before the first
European settlers came here.
I think the hearing you have had today, which I really
appreciate, really illustrates that we here in the Congress,
our obligation is to respect, protect and defend that
sovereignty, and I thank you for the hearing, Mr. Chairman.
Thank you.
The Chairman. Thank you, Mr. Kildee.
Mrs. Napolitano?
Mrs. Napolitano. Thank you, Mr. Chair, and I apologize for
my lateness. I also had a 10:00 hearing in Transportation.
I am so happy to see that you are holding a hearing in
regard to our Native American issues that have so long been
ignored. In fact, I am holding a water hearing on Indian water
rights coming up soon because we feel it is very apropos, very
important.
As my colleague was indicating, you need to be recognized.
You have rights in this House and in this Congress, and you
need to be more assertive in being able to state that you are
fighting for those rights and the recognition for them.
One of the questions I would have is--in the Department's
testimony apparently they did state it in here--I understand it
is stated that the legislation could divert appropriated funds
intended for the BIA Colorado River Agency to the tribe. How
would you like to respond to that?
And then if you obtain that funding from the Department,
would the tribe assume some of the BIA's Colorado River Agency
responsibility? Are they prepared as a tribe to assume those
responsibilities? I believe that is a question for Ms. Valerie
Welsh-Tahbo, The Honorable Valerie Welsh.
Ms. Welsh-Tahbo. Yes. Thank you for the question. The
Colorado River Indian Tribe is looking at the excess amount.
What is already acquired off the generation and the funds that
we have will go to the repairs, but also to include
congressional oversight.
When there were repairs that started in 2003, the Bureau
did not alert the tribes and we were not involved. In fact, we
saw a crane there and that is what alerted us to one of our
dams.
Mrs. Napolitano. Have you asked them why they are not
allowing you to be part of or advising you what they are doing
in those areas?
Ms. Welsh-Tahbo. If I can confer to my counsel, he can
answer that more directly.
He is telling me yes, we did ask. In fact, that is where we
went with the lawsuit and that is how that occurred.
Mrs. Napolitano. Thank you.
Ms. Welsh-Tahbo. In the testimony that I gave, we are not
so much looking at the funds because the excess revenue that we
draw off of that is what we want oversight over, but it is the
process. We are not after the funds. It is the process.
Eventually we want to go into our own utility systems and
using our own resources and our waterways, our Headgate Dam,
and go into hydroelectricity.
Mrs. Napolitano. Hydroelectricity.
Ms. Welsh-Tahbo. But in order to do that under the 2005
Energy Act, we need those funds and access to it.
Mrs. Napolitano. OK. And the BIA said the land being put
into trust is 229 acres. Will all of that land be used, it
says, for a golf course? If not, what are the purposes intended
for that land?
I am sorry. This is for Mr. Dennis Lee Forsgren.
Mr. Forsgren. Yes, Congresswoman.
Mrs. Napolitano. I am sorry.
Mr. Forsgren. The land currently is a golf course. We plan
to continue to use it as such.
Mrs. Napolitano. All of it?
Mr. Forsgren. Yes. We plan no change in land use.
Mrs. Napolitano. And not for sale? Not for casinos?
Mr. Forsgren. Absolutely no gaming. We don't believe the
law would permit it anyway. We have no intention for casinos or
gaming.
Mrs. Napolitano. Thank you. Thank you, Mr. Chair. Those are
the questions that I did have.
Again, thank you for coming and testifying before this
subcommittee, and thank you for holding the subcommittee
hearing. Thank you.
The Chairman. Thank you.
Let me continue with Mr. Forsgren. Many tribes have
outstanding land into trust applications. Why is this situation
unique?
Mr. Forsgren. Mr. Chairman, we believe that, I guess I
would come back, and I understand we have multiple land into
trust applications.
I guess I would say the unreasonable duration of the
pending application would be the best answer I could give you.
We have been trying to work with the Department for over five
years, and we see no progress at all.
The Chairman. So you have had this pending for five years?
Mr. Forsgren. Yes. Over five years.
The Chairman. OK. Could you provide the Committee with a
map of the lands that are subject to this bill?
Mr. Forsgren. Yes, sir.
The Chairman. And also a summary of any environmental
studies that have been done on these lands?
Mr. Forsgren. Yes, sir.
The Chairman. OK. We would appreciate receiving that.
Chairwoman Andy, let me ask you. In your testimony you
state that you met with the Interior Department in 2007 to
discuss solutions to the investment restrictions. Were any
solutions developed at this meeting?
Ms. Andy. No.
The Chairman. None? Zero? I am sorry. I didn't hear you.
Ms. Andy. No, and that is basically why I am here today.
There were no solutions.
The Chairman. OK. To your knowledge, what has the
Department done to contribute to a solution?
Ms. Andy. Nothing.
The Chairman. All right. And aside from this technical
amendment, do you know of any alternative solutions to solve
the problem?
Ms. Andy. Well, yes. If we can invest the way we want to,
that would bring some of that earnings up; and we can get some
of that money to last as long as we want to, as I have
testified to.
One of the things I would like to make a comment on about
the BIA is concern that they may have to pay twice. Well, the
problem here is that they haven't offered their share of funds
on the MOU. Also, they took on the Corps of Engineers funds and
spent down principal without investing the money as intended.
You know, when they didn't do that, we took it on and did
that for them, and now we want to go to a higher investment
type and they are saying we can't because they are afraid we
will lose the money, while in the past I have witnessed BIA
losing tremendous amounts of money for tribes.
We are well aware that we can handle this situation in the
manner that we have handled it when we took it over, so with
that, Mr. Chair, I would leave it at that.
The Chairman. OK. I appreciate it.
Chairman Day, let me ask you about the provision in the
legislation that provides that non-BLM lands will be subject to
the same laws as other lands currently held in trust.
Could you explain why this provision is needed and why the
lands would not automatically be subject to the same laws if
they are placed into trust?
Mr. Day. Can I consult with my attorney here real quick?
The Chairman. Sure.
[Pause.]
Ms. Marks. Mr. Chairman, this is Patty Marks. The intent
of----
The Chairman. I am sorry. Would you identify yourself again
for the record?
Ms. Marks. Certainly. Sliding in, my name is Patty Marks.
The intent in drafting the legislation was----
The Chairman. And you are a legal attorney for?
Ms. Marks. Legal attorney for Tuolumne Me-Wuk.
The Chairman. OK.
Ms. Marks. The intent of drafting the bill was to follow
something that had been acceptable and used as a precedent by
this committee, and that was the California Land Transfer Act.
In fact, there will be no change in jurisdiction here. It is a
280 state. Criminal jurisdiction will remain the same.
I don't believe that it is absolutely necessary to include
that language. I think it was more in a drafting situation of
following a precedent established by the Committee in the past
for writing bills of this nature in California.
The Chairman. OK. Are the lands referenced in Section 3[c]
being placed into trust pursuant to this legislation?
Ms. Marks. No, sir. The FETA trust process is on appeal at
this point at the Interior Board of Indian Appeals.
We had thought initially about asking the Committee to take
the lands into trust, but we didn't want to be accused of
interfering with the rights of the non-Indian people involved
in that litigation, even though we consider their case to be
totally frivolous.
So the tribe owns the land in fee. We will simply extend
the boundaries around land exclusively owned by the tribe and
used exclusively by the tribe and let the IBIA process run its
course.
The Chairman. OK. Chairman Day indicated that most, but not
all, of the land affected by this bill will become part of the
tribe's reservation. Has the tribe informed the individual
landowners that their land will become a part of the
reservation because of this legislation?
Mr. Day. Yes. Actually, the one couple is right in the
middle of it. They actually go down the highway and clean the
highway for us. They are really respectful to us and we are
respectful to them. We have their full support also.
The Chairman. OK.
Ms. Marks. We have the support of both non-Indian families,
and one is actually working toward a purchase agreement with
the tribe, which will provide this elderly couple with a life
estate to allow them to live on the property until such time as
title will pass to the tribe.
The Chairman. OK. My last question. Will deeming non-Indian
fee land to be within the boundaries of the reservation provide
the tribe with an advantage in the ongoing litigation on the
pending fee to trust application?
Ms. Marks. No, sir, we do not believe so. It is legally
arguable right now that the tribe owning those lands and having
them contiguous to the reservation is already exercising
governmental authority over the property so, no, there will be
nothing.
In fact, if you note in the legislation itself what is
happening here is there is an easement situation. An easement
preexisted the tribe's acquisition of the parcel. When the
Secretary rendered his decision to take the lands into trust,
the couple involved did not believe that their easement was
adequately described and protected in the Secretary's FETA
trust approval decision.
This legislation actually recognizes that easement in the
bill itself so, if anything, it will help the plaintiffs in
that case by giving them a Federal recognition of an existing
easement.
In addition to that, you will note on the map here, if I am
correct, this is the parcel in question. Since the suit was
filed, the Bureau of Indian Affairs has constructed a permanent
road running straight onto their property, so we believe that
the only reason they are extending the appeal is to try to get
leverage to encourage the tribe to buy their parcel at a highly
inflated rate, but you can't have a much better reason than a
public road that runs to your driveway. That is why we are
convinced that the IBIA will dismiss that case as soon as it
gets time to read the briefs.
We can respect their rights this way, and we included their
easement in this bill to show Congress that we are not
attempting to tread on anybody's property rights, and the
relationship will remain positive.
The Chairman. Thank you.
Do any other Members wish additional questions?
Mrs. Napolitano. Good luck.
The Chairman. Mr. Kildee?
Mr. Kildee. I appreciate Patty Marks' explanation. It was
very clear in clarifying to the Committee.
Just kind of an addition to what I have said before--I have
no bill to do this, but I think both you at the panel and we up
here can take comfort in the fact that we know that we could--I
have no bill for this--abolish the BIA, but the BIA could not
abolish the Congress.
[Applause.]
Mr. Kildee. Thank you, Mr. Chairman.
The Chairman. Thank you, Mr. Kildee.
With that, the Chair will thank the panel for their
patience and testimony before us today. We will continue to
consult with you. We again thank you, especially for traveling
the distances that you have to be with us.
No further business to come before the Committee, the
Committee stands adjourned.
[Whereupon, at 12:20 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows:]
[A statement submitted for the record by The Honorable Dan
Boren, a Representative in Congress from the State of Oklahoma,
on H.R. 5608 follows:]
Statement submitted for the record by The Honorable Dan Boren,
a Representative in Congress from the State of Oklahoma, on H.R. 5608
Mr. Chairman:
I would like to thank you for holding this hearing today, and
particularly for the leadership you have shown on the issue of tribal
consultations.
In recognition of this unique government-to-government
relationship, the Federal Government has enacted laws ``in accordance
with treaties, statutes, Executive Orders, and judicial decisions,
recognizing the right of Indian tribes to self-government.'' Conducting
meaningful consultation when enacting policies that have tribal
implications serves to aid the federal government in fulfilling its
trust responsibility and respects tribe's inherent sovereign powers
over their own members and territory.
Recently, however, I met a number of tribal representatives who
uniformly expressed great concern over what they felt was a lack of
consultation in developing policies that affect their tribes. In light
of these concerns, I feel Congress has a responsibility to look into
these matters and the guidelines that govern how consultations should
be conducted, as well as how those discussions come into play when new
policies and regulations are drafted.
The second Congressional district, which I represent, encompasses
jurisdictional areas of 17 federally recognized tribes, all of whom
have a tremendous impact on their communities. These tribes provide
resources that benefit both tribal and nontribal citizens, and help
better the way of life in these rural areas of Oklahoma. Changes that
would significantly affect these tribes deserve careful consideration
and should warrant meaningful consultation. Without proper discussions,
these actions could have profound negative implications on both tribal
communities and those they affect. Again, I would like to thank the
committee for their careful consideration of this issue. I look forward
to working with my colleagues as we seek to bring resolution to this
important issue. Thank you.
______
[A letter submitted for the record by the Jicarilla Apache
Nation on H.R. 3522 follows:]
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[A statement submitted for the record by the Lummi Indian
Nation on H.R. 5608 follows:]
Statement submitted for the record by Henry Cagey, Chairman,
Lummi Indian Business Council, on H.R. 5608
Dear Chairman Nick Rahall:
The Lummi Indian Nation has been an active member of the various
local, regional, national, and international organizations that have
sought to improve the status of the Indian peoples and the government-
to-government relationship the ``treaty tribes'' have with the United
States. We fully support our national organizations in their advocacy
for Indian Country. However, like most Indian Nations, we believe that
the Indian Tribes must maintain a direct dialogue with the
Administration and the Congress, and work to assure that the Supreme
Court decisions that impact our sovereignty are subjected to
congressional review and reversal when appropriate.
We were an original member of the Alliance of American Indian
Leaders that sought to secure the introduction and enactment of Senate
Concurrent Resolution 76 (via Senator Inouye, then Chairman of the
Senate Select Committee on Indian Affairs, 1987), and then the
companion HCR #331 (hearing presided over by then Rep. Nighthorse
Campbell, 1988). The House measure passed first. These are known as the
Iroquois Resolution. It was used to proclaim, during the 200 Year
Celebration of the Constitution, that the government-to-government
relationship between the Indian Tribes and the United States was
founded directly upon the U.S. Constitution, and that the Iroquois
Confederacy played a modeling part of constitutional history.
We were actively involved in the development of the original tribal
self-governance amendments to P.L. 93-638, the Indian Self-
Determination and Education Assistance Act (ISDEAA), and have become a
self-determining and self-governing Indian Nation thereafter. But, we
will always remain critical of the United States ability to stabilize
their federal Indian policy in positive light of the needs and
sovereignty of Indian Nations.
We firmly believe that the U.S. Constitution was a political
miracle that came from the Founding Fathers at the Constitutional
Convention. We believe that ``Population Sovereignty'' shall always be
the foundation of national governance. We recognize that all member
states of the Union have been required to develop a ``Republican Form
of Government.'' The dream of constitutional government, that is
accountable to the people, has spread around the world, as predicted by
the Iroquois Vision of the Tree of Peace.
The United States can and should play a pivotal role in the
development of constitutional popular sovereign governments, wherever
the demands of the resident populations call for it. However, to be a
role model requires the United States to live in accordance to the
canons of construction of written constitutions. It is a mandate of the
People's dream of fair, honorable, and accountable national government.
Our testimony is based on our review of the history and intent of
the U.S. Constitution, as pertains to the regulation and management of
Indian Affairs by the national government, and recognition by the state
governments that they do not inherently have this type of jurisdiction.
The historic relationship of the Indian Tribes to the United States is
definitely constitution based. But, the whole constitution must be
taken into consideration and not just the standard, if not habitual,
reference to the ``treaty powers'' or the powers to govern ``Indian
commerce.''
We believe that there is a theory of balanced governance within the
constitution that has been ignored for the enrichment of the ``Common
Good'' at the expense of the Indian tribes. Continuation along this
path shall ultimately lead to weakening of constitutional foundations.
Thomas Jefferson believed that this constitution ``shall last a
thousand, thousand generations.'' It is up to us to prove him right. We
should not cheapen the vision of the constitution for immediate
economic gains of private interests. The United States is a nation
first. All of its powers derive from the constitution. At one time,
states rights held a paramount influence under the Articles of
Confederation, that theory proved unacceptable and was drastically
weakened in the Popular Constitution. Since then, the amendments that
have been secured have made the constitution even more ``Popular'' and
placed national governance way above state rights theory.
We thank you for receiving our written statement and testimony
(attached herewith).
[NOTE: The attachment has been retained in the Committee's official
files.]
______
[A letter submitted for the record by Paul McIntosh,
Executive Director, California State Association of Counties,
follows:]
April 8, 2008
The Honorable Nick J. Rahall II
Chairman
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Rahall:
On behalf of the California State Association of Counties (CSAC), I
am writing to urge you to include in the Consultation and Coordination
with Indian Tribal Governments Act (H.R. 5608) provisions that would
require the U.S. Department of Interior and the National Indian Gaming
Commission to consult with local governments when formulating,
amending, implementing, or rescinding policies that have tribal-local
governmental implications. Additionally, CSAC urges you to include
language in H.R. 5608 that would require the aforementioned agencies to
provide local governments with notification of any federal
administrative or tribal actions that occur under existing regulatory
authority that would impact local communities.
As you know, H.R. 5608 in its current form would strengthen
requirements related to government-to-government dialogue between
federal agencies and Indian tribes. However, there are no provisions
that would ensure that local governments--including counties--are
notified or provided the opportunity to comment on federal policies
that have a direct impact on counties' ability to provide services to
their citizens.
In California, there are over 100 federally recognized tribal
governments. Incidentally, 54 of those tribes have operational casinos,
which have created a myriad of significant economic, social,
environmental, health, safety, and other impacts on surrounding local
communities. As the level of government that has a legal responsibility
to provide for the health, safety, and general welfare of all citizens,
counties strongly believe that the formulation or proposed modification
of federal tribal policies--whether directly related to gaming or not--
should be developed in such a way that county governments are a
meaningful part of the process.
In addition, while we understand that H.R. 5608 is tailored to
address issues surrounding the development or modification of federal
regulations, rules, or policies, we urge you to include language that
would provide local governments with notification of any agency or
tribal actions under existing procedures or processes that could affect
localities. As you know, under current practices, no notification is
provided to local governments with respect to Indian Lands
Determination requests. Additionally, notice of fee-to-trust
applications is inadequate, with many local governments not provided
any type of notification when such applications are filed. Accordingly,
CSAC urges you to include provisions in H.R. 5608 that would require
the Department of Interior to notify local governments of any actions--
including, but not limited to the aforementioned examples--that would
have an appreciable impact on local communities.
We appreciate your consideration of our concerns and would welcome
the opportunity for further dialogue on this issue of importance to
county governments across the nation.
Sincerely,
Paul McIntosh
CSAC Executive Director
cc: California Members of the House Natural Resources Committee
______
[A statement submitted for the record by Chris E. McNeil,
Jr., President & CEO, Sealaska Corporation, on H.R. 5680
follows:]
Statement submitted for the record by Chris McNeil, Jr.,
President and CEO, Sealaska Corporation, on H.R. 5680
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to submit written testimony on behalf
of Sealaska Corporation (``Sealaska'') regarding H.R. 5680, A Bill to
Amend Certain Laws Relating to Native Americans. In particular, I am
submitting written testimony in support of Section 8 of H.R. 5680,
which provides a technical amendment to the Alaska Native Claims
Settlement Act (``ANCSA''). This amendment is important for purposes of
shareholder votes to issue new settlement common stock to elders,
shareholder descendants, or left-outs.
Sealaska is the Alaska Native Regional Corporation for Southeast
Alaska--one of 12 Regional Corporations established pursuant to ANCSA.
Our shareholders are descendants of the original inhabitants of
Southeast Alaska--the Tlingit, Haida and Tsimshian people. Sealaska
currently has roughly 20,000 shareholders.
Pursuant to ANCSA, Alaska Natives born before December 18, 1971,
enrolled to one of thirteen Regional Corporations as shareholders, and
to the Villages in which they lived or to which they had an historical,
cultural, and familial tie. All shareholders enrolled to one of the
Regional Corporations received original settlement common stock that
carried with them certain rights, such as the right to allocate the
shares through inheritance or gift, or to vote in Board elections or on
corporate resolutions at annual meetings.
In 1988, ANCSA was amended to allow a Regional Corporation to
authorize the issuance of additional shares of settlement common stock
to: 1) Natives born after December 18, 1971 (``Shareholder
Descendants''); 2) Natives eligible for enrollment but who were not so
enrolled (``Left-Outs''); and 3) Natives who have attained the age of
65 (``Elders''). To issue new stock pursuant to the 1988 amendment, a
Regional Corporation was required to have a favorable vote from a
majority of ALL shares of the Corporation. Therefore, if only 70
percent of all shares of the Corporation voted on a resolution, more
than 73 percent of the voting shares had to be in favor of a
resolution--a supermajority. In 2006, the ANCSA voting standard was
amended, in Public Law No. 109-221, to allow ANCSA Corporations to
adopt a resolution to issue settlement common stock to Shareholder
Descendants, Left-Outs and Elders through an affirmative vote of a
majority of those shares present or represented by proxy at an annual
meeting--a simple majority. See 43 U.S.C. Sec. 1629b(d)(3).
Several ANCSA Regional Corporations would like to now bring the
issue to a vote, but would like to have the option of issuing new
settlement common stock with voting limitations and limitations on the
ability to transfer the stock by gift (particularly if the new stock is
``life estate'' stock). The current law as written in ANCSA is not
clear regarding the ability to limit voting rights or transfer rights
with regards to issuance of new stock pursuant to section 7(g)(1)(B) of
ANCSA. See 43 U.S.C. Sec. 1606(g)(1)(B). Section 8 of H.R. 5680 would
clarify that an ANCSA Regional Corporation could issue additional
settlement stock to Shareholder Descendants, Left-outs, and Elders,
with certain limitations on voting rights and the right to transfer by
gift. The amendment merely provides ANCSA corporation shareholders the
flexibility to determine the type of new settlement common stock that
could be issued.
Sealaska Corporation has utilized the new voting standard to put
forth corporate resolutions to issue new settlement common stock to
Shareholder Descendants and Left-Outs pursuant to section 7(g)(1)(B) of
ANCSA, without limitations on voting rights. The resolutions passed
under the new voting standard (simple majority), and the settlement
common stock has been issued.
Sealaska has also sought a corporate resolution to issue additional
stock to Elders, but the stock would not include voting rights, as the
elders already have voting rights as original shareholders born before
December 18, 1971. The purpose of the additional stock would be the
provision of additional dividend distributions. Because of the voting
right limitation, the resolution would have to be considered under a
different section of ANCSA that is not subject to the new ``simple
majority'' standard, Section 7(g)(2). See 43 U.S.C. 1606(g)(2).
Utilizing the ``super majority'' voting standard makes it difficult to
pass any resolution.
Based on the foregoing, Sealaska supports the amending language in
Section 8 of H.R. 5680, as it would clarify that a resolution to issue
new settlement common stock under Section 7(g)(1)(B) of ANCSA may
provide that the settlement common stock is subject to certain
limitations--life estate (already provided in existing law); voting
limitations; or limitations on the ability to transfer stock by gift.
The issuance of new settlement common stock with certain limitations
would, of course, remain subject to the approval of the shareholders of
the ANCSA Corporation.
We appreciate the opportunity to submit written testimony in
support of Section 8 of H.R. 5680. If you have any questions regarding
this matter, please do not hesitate to contact me.
Gunalcheesh. Thank you.
______
[A statement submitted for the record by the National
Congress of American Indians, follows:]
Statement of the National Congress of American Indians on H.R. 5608
On behalf of the National Congress of American Indians, I would
like to thank Chairman Rahall and Representative Kildee for introducing
this important legislation, and thank the Committee for this hearing.
NCAI strongly supports the principle of this legislation, which is to
require federal agencies to take seriously their responsibility to
consult and coordinate with Indian tribal governments on matters that
will affect the tribes. We sincerely thank you for your efforts to
develop a stronger intergovernmental relationship between Indian tribes
and the federal government.
Your attention to the issue of consultation is particularly
important at this time. Consultation is at the cornerstone of the
federal-tribal relationship and the federal policy of tribal self-
determination. It is the primary mechanism through which the federal
government's authority under the trust responsibility is reconciled
with the tribal inherent right of self-government. In recent years,
however, tribal leaders have witnessed a breakdown in effective
consultation with the federal government that has undermined federal
policy-making and frustrated tribal leaders. NCAI adopted Resolution #
SAC 06-026 (attached) in 2006 calling for a re-evaluation of the
federal consultation policy and consideration of recommendations for
improving consultation.
Although the NCAI membership has not yet had an opportunity to take
a formal position on H.R. 5608, the NCAI Executive Board, which is
composed of regional representatives from across Indian Country, has
considered the legislation and has several initial concerns that we
encourage the Committee to resolve before moving forward with this
legislation. First, we urge the Committee to expand the scope of this
legislation to apply equally to all executive agencies. Second, we
strongly recommend that the Committee consult widely with Indian tribes
about the substance of the legislation.
NCAI has a long history of experience in facilitating policy
negotiations between tribal leaders and federal agencies. We share some
of the lessons we have learned from these experiences in this testimony
in order to provide context for the Committee as it considers H.R.
5608.
``Consultation and Coordination''
H.R. 5608 refers to ``consultation and coordination'' with Indian
tribal governments about proposed Federal actions that will impact
tribal interests. Inherent in the notion of true government-to-
government coordination is the idea that the tribal governments will be
a partner in developing federal policies that will impact them.
Consultation and coordination is not an empty procedure where the
agency first talks to the tribes and then does whatever it wants. In
our view, this is the most fundamental misunderstanding of the
consultation policies. Consultation is the necessary precursor to
federal decisions that are in the best interests of tribes and that
support tribal self-government. The federal policy has substance and
requires accommodation of tribal views.
In particular, the federal government has a trust responsibility to
Indian tribes, to make decisions that are for the benefit of tribes.
The federal government must be in communication with the tribes to be
able to make beneficial decisions, and must assume that the tribes
themselves are the best judge of their own interests. Secondly, tribal
governments are sovereigns recognized under the U.S. Constitution. The
relationship with tribes must respect the governmental status because
the tribe performs important governmental functions like law
enforcement that require intergovernmental coordination.
Intergovernmental relationships require consultation to ensure comity
and there is preference for negotiated resolutions rather than
authoritarian decrees.
Consultation first became a part of federal Indian policy as tribes
sought a means to resolve the problems caused by the federal policy of
tribal termination in the 1950's and 1960's and federal policy shifted
towards a policy of Indian self-determination. During the Termination
Era, the proponents of terminating the federal-tribal relationship
relied on the argument that Indian tribes would be better off if they
were freed from the domination of the Bureau of Indian Affairs and
released from federal oversight. Tribes were not consulted on this
point, of course, and termination was a disaster for tribes both
culturally and economically. In 1954, in the middle of the
Congressional hearings on the termination bills, NCAI launched an
offensive to stop termination. NCAI's ``Declaration of Indian Rights''
established the principles that tribes must first be informed of
federal policies that would affect their rights, that tribes themselves
were the best judge of their own interests, and that the federal
government must consult with tribes and obtain their consent before
implementing federal policies affecting tribal rights. These principles
galvanized opposition to termination, educated Congress and the
Administration, and were successful in first slowing and then stopping
the efforts to terminate tribes.
As the alternative to termination, NCAI advocated instead for
tribal self-determination and a review of federal policies. The 1961
``Declaration of Indian Purpose'' called for the ``right to choose our
own way of life'' and the repeal of the federal termination policy. The
termination policy was repealed by Congress in 1968, and in 1970
President Nixon announced the policy of Self-Determination that created
dual goals of maintaining the federal government's trust responsibility
and promoting tribal self-government. Self-Determination has proven to
be the most successful and stable tribal policy in U.S. history.
Congress and the Executive Branch both recognized the need for
consultation with tribal leaders in the implementation of the Self-
Determination policy:
Congress...recognizes the obligation of the United States to
respond to the strong expression of the Indian people for self-
determination by assuring maximum Indian participation in the
direction of...Federal services to Indian communities so as to
render such services more responsive to the needs and desires
of those communities.
-- Public Law 93-368, Indian Self-Determination and Education
Assistance Act, 1975
In 1994, President Clinton issued a memorandum to formalize
consultation entitled Government-to-Government Relations With Native
American Tribal Governments. Congress also addressed consultation in
the mid-90's in the Unfunded Mandates Reform Act of 1995 (UMRA). The
UMRA requires each agency to ``develop an effective process to permit
elected officers of State, local, and tribal governments (or their
designated employees with authority to act on their behalf) to provide
meaningful and timely input in the development of regulatory proposals
containing significant Federal intergovernmental mandates.'' UMRA, P.L.
104-4, Sec. 204.
President Clinton further articulated the consultation policy for
the Executive branch in Executive Order (EO) 13084, Consultation and
Cooperation with Indian Tribal Governments, in 1998. Ironically, EO
13084 and an accompanying Executive Order concerning consultation of
state and local governments, were developed without consultation with
either group. EO 13084 was replaced in 2001 by EO 13175. This Executive
Order continues to be in effect today and was reaffirmed by President
Bush in 2004.
EO 13175, which is binding on all executive branch agencies,
acknowledges the federal government's trust responsibility to tribal
governments and requires each federal agency to develop ``an
accountable process to ensure meaningful and timely input by tribal
officials in the development of regulatory policies that have tribal
implications.'' The EO extends beyond formal agency rule-makings and
includes:
``regulations, legislative comments or proposed legislation,
and other policy statements or actions that have substantial
direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.''
Section 7 of the EO, ``Accountability,'' requires the agencies to
certify that the requirements of the order have been complied with
whenever an agency submits final draft regulations to Office on
Management and Budget (OMB). This section does not, however, create any
mechanism for tribal recourse if the federal government fails to
adequately consult on a matter. During the development of EO 13175,
NCAI and many tribal governments recommended that an accountability
mechanism be included in Section 7 of the EO. Specifically, NCAI
recommended including the following language:
``If the agency fails to meet the consultation requirements,
the objecting tribe shall report to OMB and OMB shall review
the tribe's concerns. If the concerns are warranted, the draft
final regulations shall be returned to the offending agency to
follow the prescribed consultation policy with the necessary
tribe(s).''
This language was not, however, included in the Executive Order.
The federal policy-making criteria set forth in Section 3 of the
Executive Order provide some insight into the very active role that
tribes are expected to play in the consultation process and the high
level of deference that the federal government is expected to give to
tribal policy decisions. Section 3 states that:
``When undertaking to formulate and implement policies that
have tribal implications, agencies shall:
(1) encourage Indian tribes to develop their own policies to
achieve program objectives;
(2) where possible, defer to Indian tribes to establish
standards; and
(3) in determining whether to establish Federal standards,
consult with tribal officials as to the need for Federal
standards and any alternatives that would limit the scope of
Federal standards or otherwise preserve the prerogatives and
authority of Indian tribes.''
Under EO 13175, each agency was given 30 days to designate an
official with the primary responsibility for implementation of the
Executive Order. That official was directed to submit the agency's
consultation process to OMB within 60 days of the effective date of the
Executive Order. The consultation processes developed by the federal
agencies vary widely and play an important part in giving meaning to
the policy established in the Executive Order. The agencies with
substantial activities in Indian Country, like the BIA and IHS, have
much more detailed and formalized consultation policies than agencies
who deal with tribal issues less frequently.
Consultation In Practice
As a matter of practice, consultation has taken many different
forms depending on the issue to be discussed. The scope of the
consultation frequently correlates with the breadth of the proposal,
and timelines may vary. Consultation can be more or less formal and may
involve a core group of tribal representatives, a period of written
comments, a one-time national meeting, region or area specific
meetings, a series of large-scale national consultation meetings, or
some combination of any of these. This flexibility allows tribes and
the federal government to develop a process that is appropriately
tailored for a given issue.
The federal government has held more than 30 consultation sessions
in the past year alone on topics ranging from the development of a rule
on government contracting to a major overhaul of the Bureau of Indian
Affairs. These sessions have varied widely in their scope and
effectiveness. NCAI has participated in or observed many of these
consultation sessions and has informally and formally collected
feedback from tribal leaders participating in many of these sessions.
An analysis of this feedback reveals that while consultation sessions
are happening in significant numbers, the impact of these sessions is
unclear.
On some of the most important and controversial issues, tribal
leaders have repeatedly raised concerns that there is no consultation,
or that consultation is held after the decision is already made. At the
same time, on other issues there is a sense among many tribal leaders
that they are being ``consulted to death,'' with lots of meetings but
little opportunity for meaningful input into important federal
decisions. Tribal leaders have great concerns that the federal
representatives attending the consultations lack decision-making
authority. Lack of follow-up to a consultation session is another
recurrent criticism. Tribal leaders describe many of the sessions as
meetings where the same things are said over and over again and no
action is taken. Or, as sessions where tribal leaders come and express
their opinions, but the federal government had already made a decision
and the tribal input had no impact. Moreover, tribal leaders repeatedly
expressed frustration that there is no way for them to hold the federal
government accountable when it fails to adequately consult or ignores
their views. In light of all of these concerns, many tribal leaders
have expressed that the frequent consultation sessions are becoming an
unjustifiable drain on tribal resources
On the other hand, federal representatives have expressed concern
that tribal leaders attending consultation sessions are not well-versed
in the issues to be discussed, and that the feedback they receive at
consultation sessions is not always helpful. The federal government
representatives also expressed frustration that tribal leaders raise
issues that are matters for Congress and outside the agency's
authority. There are concerns about the timing of consultation. If it
takes place before the agency develops a policy the tribes complain
that they have nothing to consult on. If it takes place after
development of a policy, tribes complain that they were not consulted
in the first place. Concerns were also raised about the cost and time
spent conducting consultation sessions.
An analysis of the consultation sessions that were deemed by tribal
leaders and federal officials to be more successful reveals a number of
common elements. First, in successful consultation sessions,
expectations were clearly established from the outset with timeframes
and goals communicated to all participants. Second, successful
consultation sessions generally focused on a relatively well-defined
regulatory issue that was shared with tribal leaders in advance. Third,
many successful consultation sessions centered around a drafting
process involving a written document that could be discussed in detail
and fine-tuned with an opportunity to exchange information over several
meetings. Fourth, successful consultation sessions generally involved
an informal pre-consultation scoping discussion with a small group of
tribal experts. Fifth, the most productive sessions were attended by
federal agency staff who were well-informed, part of the decision-
making chain, and willing to be frank and open about internal agency
concerns, as well as attended by tribal leaders who were willing to
spend time and effort to learn about the details of an issue and were
accompanied by appropriate technical staff and other tribal employees
with expertise on the subject matter.
The Consultation and Coordination with Indian Tribal Governments Act
H.R. 5608 would largely codify EO 13175 as applied to the
Department of Interior (DOI), the National Indian Gaming Commission
(NIGC), and the Indian Health Service (IHS). H.R. 5608 differs from EO
13175 in three key ways: First, federal agencies other than NIGC, IHS,
and DOI are not included in the legislation. Presumably these agencies,
many of which play an important role in setting policies that impact
tribal communities, would continue to be covered by the Executive
Order. NCAI is concerned, however, that setting up two tiers of
consultation requirements could well have unintended consequences. For
example, it may be read by some to suggest that the consultation
obligation at the Department of Justice, Department of Education, or
Department of Homeland Security, for example, is somehow less important
than that of the Department of Interior. It could also have a chilling
effect on multi-agency consultation sessions, which are very important
when dealing with issues that cut across agencies such as public
safety, public health, or economic development. NCAI urges the
Committee to consider amending H.R. 5608 to include all federal
agencies.
Second, H.R. 5608 defines ``accountable consultation process,'' a
term that was left undefined in EO 13175. Specifically, the legislation
would establish four minimum criteria for an ``accountable consultation
process,'' including: 1) ample opportunity for tribal input; 2) full
consideration of tribal recommendations; 3) written notification of
agency decisions; and 4) a 60-day period after notice is given to
tribes before the agency decision takes effect.
Creating a common understanding of what constitutes an
``accountable consultation process'' is an important step toward
improving government-to-government consultation. NCAI encourages the
Committee to consider additional elements that might be part of an
accountable consultation process such as: ensuring that adequate notice
is given to tribal governments of all consultation sessions that
includes the relatively well-defined topic to be addressed at the
consultation session; requiring that consultation be conducted at the
outset of any proposal, before decisions have been made at the agency
level; ensuring that the maximum amount of deference possible should be
given to tribal leaders to develop policies that will impact tribal
communities; and providing for a written explanation when tribal
suggestions or recommendations cannot be accommodated. Notice and
information-sharing are a chronic problem. This Committee may also want
to consider directing the Administration to develop an internet-based
system to share information with tribes using web sites and e-mail
list-serves.
In addition, we are concerned that the 60-day period for agency
action to take effect provided for in H.R. 5608 could cause delays to
important regulatory changes that will benefit Indian tribes. NCAI
recommends that the Committee consult with Indian tribal governments
about this and other elements of an ``accountable consultation
process'' to gain the benefits of the years of experience tribes have
with various consultation processes and to be sure that the criteria
maintains adequate flexibility.
Third, H.R. 5608 would likely create a legal right that tribal
governments could enforce in court. To the extent that the agency
action in question constitutes an administrative action, it will be
governed by the Administrative Procedures Act (APA). In such cases,
tribes would have the ability to ask a federal court to review an
agency's failure to comply with the standards set out in H.R. 5608, and
to stop the proposed action until consultation takes place. Allowing
tribes to have some mechanism for holding the federal government
accountable when it fails to consult is an integral part of improving
the government-to-government consultation process and would demonstrate
that the United States is fully committed to a government-to-government
relationship with Indian tribes.
Conclusion
Tribal leaders' experiences with consultation over the past 10
years, reveal that consultation under the existing federal policies
have fallen short of what a true government-to-government relationship
requires. In some instances, agencies are not complying with existing
federal consultation policies and are not committed to the principles
underlying EO 13175. As a result, simply ratcheting up consultation
requirements in written policies is unlikely to make a difference
without an increased commitment on the part of the Administration to
conduct meaningful consultation, and the creation of a mechanism for
tribes to hold the federal government accountable when it fails to
adequately consult with tribal governments.
It goes without saying that any efforts to reform federal
consultation policies and practice must be undertaken in consultation
with Indian tribal governments. NCAI urges this Committee to solicit
the feedback of tribal governments from across the country and to see
this hearing as the first step in a collaborative process.
______
NATIONAL CONGRESS OF AMERICAN INDIANS
the national congress of american indians resolution #sac-06-026
TITLE: Calling for the Creation of an Ad Hoc Tribal Task Force to Re-
evaluate the Federal Consultation Policy
WHEREAS, we, the members of the National Congress of American
Indians of the United States, invoking the divine blessing of the
Creator upon our efforts and purposes, in order to preserve for
ourselves and our descendants the inherent sovereign rights of our
Indian nations, rights secured under Indian treaties and agreements
with the United States, and all other rights and benefits to which we
are entitled under the laws and Constitution of the United States, to
enlighten the public toward a better understanding of the Indian
people, to preserve Indian cultural values, and otherwise promote the
health, safety and welfare of the Indian people, do hereby establish
and submit the following resolution; and
WHEREAS, the National Congress of American Indians (NCAI) was
established in 1944 and is the oldest and largest national organization
of American Indian and Alaska Native tribal governments; and
WHEREAS, meaningful dialogue and conferral with Indian Tribes and
Alaska Native tribal governments on all federal actions that relate to
Indian Affairs is the cornerstone of the Government-to-Government
relationship between each Tribal government and the United States, and
is the primary component of the relationship that exists by virtue of
federal recognition of a Tribal government; and
WHEREAS, on June 18, 2003, by Resolution #PHX-03-038 NCAI had to
formally request the BIA to consult with Tribes on an effort to
Reorganize the BIA Office of Indian Education Programs; and
WHEREAS, due to lack of any meaningful discussion and conferral
with tribes in a consultation process, on November 21, 2003, by
Resolution #ABQ-03-076 NCAI formally opposed the Reorganization of the
BIA Office of Indian Education Programs and requested hearings before
the Senate Committee on Indian Affairs and the House Natural Resources
Committee so that Tribal Leaders could testify as to their concerns
about this matter; and
WHEREAS, the Bureau of Indian Affairs' Office of Indian Education
Programs, separated from the Bureau of Indian Affairs (BIA) in July of
2006 and now named the Bureau of Indian Education Programs (referred to
as ``BIE''), is implementing a reorganization originally conceived in
2003, but not fully described to American Indian and Alaska Native
Tribal Governments prior to implementation; and NCAI 2006 Annual
Session Resolution SAC-06-026
WHEREAS, in three years of meetings the BIA and the BIE did not
once engage in a meaningful and systematic consultation process with
the members prior to implementing this reorganization and failed to (1)
provide actual notice of what was the agency intended to do in the
reorganization at any meeting; (2) disclose with candor all information
known to the BIA or BIE that could potentially have any impact on the
members; (3) did not comply with the BIA's own consultation policy or
federal regulations addressing the components of a valid consultation;
and (4) is still not complying with the consultation policy or federal
regulations with regard to personnel actions taken as part of the
implementation; and
WHEREAS, in Resolution #ABQ-03-076 the NCAI protested the fact that
the Bureau of Indian Affairs is raising standards while reducing
financial and human resources presently available to Bureau operated
and funded schools, while at the same time high level education
positions were not subject to any funding reductions; and
WHEREAS, as a result of the failure of the BIA and BIE to engage in
all of the elements of meaningful consultation with American Indian
Tribes and Alaska Native Tribal Governments, the reorganization that is
being implemented continues to require program cuts, fewer resources at
some local agency offices while increasing the number of Deputy and
Associate Deputy Director Positions in the BIA to at least 7, all of
which are to be from the Senior Executive Service and therefore having
a salary of up to $160,000 per year.
NOW THEREFORE BE IT RESOLVED, that the NCAI does hereby call for
the creation of an ad hoc Tribal Task Force to re-evaluate the Federal
Consultation Policy and make recommendations for improvement to the
consultation process; and
BE IT FURTHER RESOLVED, the NCAI recommends that the Task Force
evaluate the policy changes in the attached document and consider the
following reforms:
Distinguishing between major federal actions of national
importance and other actions that may be of minor importance;
Allowing and encouraging federal agencies to engage in
early informal consultation with tribal leaders when the agency is
beginning to consider an issue and before any actions have been
planned; and
BE IT FURTHER RESOLVED, that the NCAI does hereby request hearings
before the Senate Committee on Indian Affairs and the House Natural
Resources Committee and a meeting with the White House so that Tribal
Leaders may testify as to (1) why a federal statute with the minimum
requirements of ``consultation'' should be adopted; and (2) what would
be the minimum requirements of a valid ``consultation;'' and
BE IT FINALLY RESOLVED, that this resolution shall be the policy of
NCAI until it is withdrawn or modified by subsequent resolution. Page 2
of 3 NCAI 2006 Annual Session Resolution SAC-06-026.
CERTIFICATION
The foregoing resolution was adopted by the General Assembly at the
2006 63rd Annual Session of the National Congress of American Indians,
held at the Sacramento Convention Center in Sacramento, California on
October 1-6, 2006, with a quorum present.
ATTEST:
[Signed by ``President'' and ``Recording Secretary'']
______
Proposed minimum requirements of a valid consultation prior to taking
federal action:
(a) For Federal Action at the National or Regional Level:
(1) Adequate notice so that Tribal governments have a meaningful
opportunity to be heard. Adequate notice shall include, but is not
limited to:
(A) a candid written statement of what a federal Department
or Agency is proposing to do, including all components of a
proposed action provided at least two months before any meeting
with Tribal governments to address the proposed action; and
(B) all information that the federal Department or Agency has
that shows a reasonable basis for the proposal and any
information that the federal Department or Agency has that
questions the basis for the proposal, to be provided to Tribal
governments at least two months before any meeting with Tribal
governments to address the proposed action;
(C) a statement of all potential effects of the proposed
action on Tribal governments, their members, and tribal
resources of all kinds, and present and future federal
resources for federal agency undertakings to assist or fund
Tribal governments or other undertakings that affect Tribal
governments and tribal resources of all kinds;
(2) A Meaningful Opportunity to be Heard includes, but is not
limited to:
(A) an initial meeting at the local agency office level,
after giving adequate notice, where Tribal governments may
state their views on the proposed action, request additional
information, suggest alternatives to the proposed action, and
where there shall be joint deliberation among the Tribal
governments and the agency; and,
(B) a second meeting at the local agency office level after
any requested additional information has been provided to
Tribal governments, to allow Tribal governments to give any
comments, suggestions, including alternatives and
recommendations on the proposed action after reviewing the
additional information: and,
(C) a third meeting at the regional office level to provide
for joint deliberation and collaboration among Tribal
governments from other agencies in the region and the federal
department or agency, and an opportunity for Tribal governments
to parties to give any comments, suggestions, including
alternatives and recommendations on the proposed action as a
result of that collaboration and joint deliberation; and,
(D) No change shall be made in a proposed action until
completion of all regional level meeting are completed and all
actions required under the following section (3) have been
completed.
(E) All meetings shall be transcribed by a court reporter as
part of the official record of the consultation process.
(3) Publication of Tribal Comments, Questions, Suggested
Alternatives and other Recommendations
(A) The Secretary of a Department or a designated actor for
the Secretary shall produce a written summary of the Tribal
governments' comments, questions, suggested alternatives and
other recommendations as to the proposed action, and provide
answers to the questions asked; and,
(B) The Secretary of a Department shall cause the written
summary to be distributed to all Tribal governments, with two
months' prior notice of a nation-wide meeting; and
(C) The Secretary shall hold the nation-wide meeting to
provide an opportunity for Tribal governments to participate in
joint deliberation and collaboration among Tribal governments
from all regions and the federal department or agency, and an
opportunity for Tribal governments and other interested parties
to give any comments, suggestions, including alternatives and
recommendations on the proposed action as a result of that
collaboration and joint deliberations; and.
(D) The nation-wide meeting shall be transcribed by a court
reporter as part of the official record of the consultation
process.
(4) Serious Consideration of Tribal Comments, Suggested
Alternatives and other Recommendations.
(A) The Secretary shall issue notice of a proposed final
action to all Tribal governments and other interested parties
that participated in local, regional or nation-wide meetings. A
proposed action cannot be implemented is provided to all Tribal
governments and other interested parties until notice that the
final action shall be implemented. There shall be a period for
submission of written comments between issuance of the proposed
final action and notice of implementation.
(B) The proposed final action shall incorporate, to the
extent feasible, the comments, suggested alternatives and other
recommendations of Tribal governments, including
recommendations that the proposed action not be done.
(C) Where appropriate, based upon the suggested alternatives,
comments, questions and other recommendations, the proposed
final action shall provide for different forms of
implementation at the local level to address specialized issues
arising out of forms of Tribal government decision-making, and
unique aspects of Tribal culture.
(D) Where a suggested comment, alternative or other
recommendation has not been given effect in the proposed final
action, the Secretary shall provide in writing to the Tribal
government or other interested party making the comment,
alternative or other recommendation, the reason for not
incorporating the suggested comment, alternative or other
recommendation into the proposed final action. Any reason for
not incorporating the suggested comment, alternative or other
recommendation must be substantial.
(E) Notwithstanding any other provision of this paragraph, if
percent (50%) of the federally recognized American Indian and
Alaska Native Tribal governments affirmatively state their
opposition to the proposed action, after notice, and the end of
at least a two month period to submit comments or
recommendations, the action shall not be implemented and the
Secretary shall state in writing.
(b) For Federal Action at the Local Agency Level:
(1) Adequate notice so that Tribal governments have a meaningful
opportunity to be heard. Adequate notice shall include, but is not
limited to:
(A) a candid written statement of what a federal Department
or Agency is proposing to do, including all components of a
proposed action provided at least two months before any meeting
with Tribal governments to address the proposed action; and
(B) all information that the federal Department or Agency has
that shows a reasonable basis for the proposal and any
information that the federal Department or Agency has that
questions the basis for the proposal, to be provided to Tribal
governments at least two months before any meeting with Tribal
governments to address the proposed action;
(C) a statement of all potential effects of the proposed
action on Tribal governments, their members, and tribal
resources of all kinds, and present and future federal
resources for federal agency undertakings to assist or fund
Tribal governments or other undertakings that affect Tribal
governments and tribal resources of all kinds;
(2) A Meaningful Opportunity to be Heard includes, but is not
limited to:
(A) an initial meeting at the local agency office level,
after giving adequate notice, where Tribal governments and
other interested parties may state their views on the proposed
action, request additional information, suggest alternatives to
the proposed action, and where there shall be joint
deliberation among the Tribal governments, other interested
parties and the agency; and,
(B) Where there was any Tribal Questions, Suggested
Alternative or other Recommendation stated at the first
meeting, a second meeting shall be held at the local agency
office level after any requested additional information has
been provided to Tribal governments and other interested
parties, to allow Tribal governments and other interested
parties to state their views and engage in joint deliberations
on the proposed action after reviewing the additional
information and hearing the comments of the Tribal governments
and other interested parties; and,
(C) No change shall be made in a proposed action until all
meetings are completed and all actions required under the
following section (3) have been completed.
(D) All meetings shall be transcribed by a court reporter as
part of the official record of the consultation process.
(3) Publication of Tribal Comments, Questions, Suggested
Alternatives and other Recommendations
(A) The Director of the Local Agency or a designated actor
for the Director shall produce a written summary of the
comments, questions, suggested alternatives and other
recommendations as to the proposed action, and provide answers
to the questions; and,
(B) The Director of the Local Agency shall cause the written
summary to be distributed to all Tribal governments served by
Local Agency, with one month's prior notice of a meeting to
consider a proposed final action.
(4) Serious Consideration of Tribal Comments, Suggested
Alternatives and other Recommendations.
(A) The Director of the Local Agency shall issue notice of a
proposed final action to all Tribal governments and other
interested parties that participated in meetings or submitted
comments to the Local Agency. A proposed action cannot be
implemented until all Tribal governments served by the Local
Agency and other interested parties are given notice that the
final action shall be implemented. There shall be a period for
submission of written comments between issuance of the proposed
final action and notice of implementation.
(B) The proposed final action shall incorporate, to the
extent feasible, the comments, suggested alternatives and other
recommendations of Tribal governments, including
recommendations that the proposed action not be done.
(C) Where a suggested comment, alternative or other
recommendation has not been given effect in the proposed final
action, the Director of the Local Agency shall provide in
writing to the Tribal government or other interested party
making the comment, alternative or other recommendation, the
reason for not incorporating the suggested comment, alternative
or other recommendation into the proposed final action. Any
reason for not incorporating the suggested comment, alternative
or other recommendation must be substantial.
(D) Notwithstanding any other provision of this paragraph, if
percent (50%) of the federally recognized American Indian and
Alaska Native Tribal governments served by the Local Agency
affirmatively state their opposition to the proposed action,
after notice, and the end of at least a one month period to
submit comments or recommendations, the action shall not be
implemented and the Director of the Local Agency Secretary
shall state in writing that the proposed action is not being
implemented and the reason why the proposed action is not being
implemented
(c) Nothing in this section is intended to apply to the personnel
matters of any Department or Agency that has existing statutes,
regulations and policies concerning consultation with Tribal
governments on personnel matters.
______
[A letter submitted for the record by Ronda J. Snow, Lac du
Flambeau Tribal Member, and Ginew Grandmother Spokesperson, on
H.R. 5680 follows:]
[GRAPHIC] [TIFF OMITTED] T1818.015
[A statement submitted for the record by Ernest L. Stevens,
Jr., Chairman, National Indian Gaming Association, on H.R. 5608
follows:]
Statement submitted for the record by Ernest L. Stevens, Jr.,
Chairman, National Indian Gaming Association, on H.R. 5608
On behalf of the National Indian Gaming Association (NIGA) and its
184 member Tribes, I submit this written testimony on H.R. 5608,
``Consultation and Coordination with Indian Tribal Governments Act.''
NIGA is a non-profit trade association dedicated to promoting Indian
gaming and supporting Indian sovereignty. After decades of poverty and
economic devastation, 224 Indian tribes in the lower 48 states use
gaming revenues to rebuild community infrastructure, provide basic
health, education, and social programs for their citizens, and provide
hope and opportunity for an entire generation of Indian youth.
Indian Tribes as Sovereign Governments, the Constitution & Treaty-
Making
Before Columbus, Indian tribes were self-governing nations, with
democratic governments that respected the rights of the individual and
protected the well being of the community. Back then, Native economies
flourished through a strong network of trade. Native nations had
achieved remarkable artistic, cultural and scientific milestones. For
example, 60% of the crops grown worldwide today were cultivated by
Native Americans before Europeans arrived on our shores. 1
European nations acknowledged Indian nations as sovereign, self-
governing societies with a natural right to our lands.
---------------------------------------------------------------------------
\1\ J. Weatherford, Indian Givers: How the Indians of the Americas
Transformed the World (1988) at 71.
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From the first days of the Republic, the United States adopted a
policy of treaty-making and government-to-government relations with
Indian tribes. In 1778, the Treaty with the Delaware Nation established
a military alliance to assist the United States during the
Revolutionary War, which provides:
That a perpetual peace and friendship shall...subsist between
the contracting parties aforesaid through all succeeding
generations... And whereas the United States are engaged in a
just and necessary war in defense of life, liberty, and
independence against the King of England...on the behalf of
their nation, [the Delaware] engage to join the troops of the
United States aforesaid, with such a number of their best and
most expert warriors as they can spare consistent with their
own safety....
The Treaty with the Delaware Nation also provides for government-
to-government consultation between Congress and the ``deputies of the
Delaware Nation.'' Like many other treaties, the Delaware Nation treaty
expressly guaranteed the sanctity of Indian lands: ``the United States
does engage to guarantee to the...nation of Delawares...all their
territorial rights...as long as...the...Delaware nation shall...hold
fast the chain of friendship now entered into.'' My people, the Oneida,
aided the United States during the Revolutionary War by bringing corn
to the American troops who were surviving a difficult winter at Valley
Forge. During this early period, the United States entered into
treaties with our Six Nations Confederacy.
The Constitution ratifies these early Indian treaties and
authorizes later treaties in the Treaty Clause, thereby acknowledging
Indian tribes as sovereigns. U.S. Const., Art. VI. The Commerce Clause
acknowledges Indian tribes as governments, together with Foreign
nations and the several states. U.S. Const., Art. I, sec. 3, cl. 8.
As President Jefferson declared to the British emissary, ``The
sacredness of [Native American] rights is felt by all thinking persons
in America as well as Europe.'' 2 Jefferson's views are
reflected in the Louisiana Purchase Treaty, where the United States
agreed to honor prior European treaties, until such time as the United
States entered its own treaties with the Indian nations, based upon
mutual consent:
---------------------------------------------------------------------------
\2\ A. Josephy, The Patriot Chiefs (1961) at 178.
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The United States promise to execute such treaties and articles
as may have been agreed between Spain and the tribes and
nations of Indians until by mutual consent of the United States
and the said tribes or nations other Suitable articles shall
have been agreed upon. 3
---------------------------------------------------------------------------
\3\ Louisiana Purchase Treaty (Treaty between U.S.A. and the French
Republic), Article VI (1803). (Spain is referenced because France
acquired Louisiana territory from Spain).
---------------------------------------------------------------------------
In total, the United States entered into more than 370 Indian treaties,
and these treaties guaranteed tribal lands and tribal self-government.
Those guarantees continue to protect tribal lands and tribal self-
government today.
After the Civil War, Congress established the Peace Commission that
negotiated treaties with numerous Indian tribes. From the time that the
14th Amendment was proposed on June 13, 1866 until it was proclaimed on
July 28, 1868, the United States had ratified or negotiated treaties
with the Choctaw, Chickasaw, Creek, Cherokee, Chippewa, Cheyenne and
Arapaho, Delaware, Kiowa, Comanche and Apache, Sac and Fox, Seneca,
Shawnee, Quapaw, Potawatomi, Sioux, Crow, Navaho and Shoshone-Bannock.
The Fourteenth Amendment implicitly approves the United States'
original policy of government-to-government relations with Indian
tribes by re-affirming that ``Indians not taxed,'' that is tribal
citizens, owe ``allegiance'' to our Indian nations. 4
---------------------------------------------------------------------------
\4\ Elk v. Wilkins, 112 U.S. 94, 99 (1884) (14th Amendment
citizenship clause did not extend citizenship to tribal citizen, who
owed allegiance to his own Indian tribe).
---------------------------------------------------------------------------
In 1869, in his first inaugural address, President Grant said:
``The proper treatment of the original occupants of this land--the
Indians [is] one deserving of careful study. I will favor any course
toward them which tends to their...ultimate citizenship.'' Yet, most
American Indians did not become citizens until the enactment of the
Indian Citizenship Act of 1924, several years after the Choctaws and
other American Indian soldiers served as Code Talkers in World War I.
Modern Indian Affairs Policy: Tribal Self-Government and Self-
Determination
During the Depression, President Roosevelt announced a ``New Deal''
for Native Americans, the Indian Reorganization Act of 1934 (IRA). The
IRA promotes tribal self-government, sought to revitalize tribal
economies and to restore tribal lands because too much land had been
taken from tribes. 5
---------------------------------------------------------------------------
\5\ 25 U.S.C. sec. 465-467.
---------------------------------------------------------------------------
Tribal governments have continued to support and defend Indian
treaty rights and tribal self-government. In the 1960 Presidential
campaign, John F. Kennedy sent a letter to the Association on American
Indian Affairs outlining his Indian affairs policy. JFK pledged to end
the Termination Policy of the 1950s and respect Indian treaty rights:
[M]y administration would see to it that the Government of the
United States discharges its moral obligation to our first
Americans by inaugurating a comprehensive program for the
improvement of their health, education, and economic well-
being. There would be no change in treaty or contractual
relationships without the consent of the tribes concerned....
There would be protection of the Indian land base....
6
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\6\ Letter of Senator John F. Kennedy to Oliver LaFarge,
Association on American Indian Affairs, October 28, 1960.
---------------------------------------------------------------------------
Kennedy pledged to promote tribal economic development and vocational
training, improve Indian education and provide better Indian health
care. Kennedy also pledged that his Administration would ``[e]mphasize
genuinely cooperative relations between Federal officials and
Indians.'' President Kennedy followed through on his pledges by ending
the Termination Policy and establishing Federal programs to revitalize
Indian country.
President Johnson included tribal governments in the War on
Poverty, recognizing the difficult economic circumstances of Indian
tribes and the need for basic community infrastructure. Thus, in
addition to helping American Indians freely exercise our civil rights
and our right to vote, President Johnson enabled tribal governments to
provide essential services to tribal citizens.
Building on the work of the Kennedy-Johnson Administrations,
President Nixon promoted the Indian Self-Determination Act to empower
tribal governments to provide the government services that the Bureau
of Indian Affairs and the Indian Health Service previously provided.
Nixon explained:
It is long past time that the Indian polices of the Federal
government began to recognize and build upon the capacities and
insights of the Indian people. Both as a matter of justice and
as a matter of enlightened social policy, we must begin to act
on the basis of what the Indians themselves have long been
telling us. 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.
7
---------------------------------------------------------------------------
\7\ President Nixon, Special Message on Indian Affairs, July 8,
1970.
---------------------------------------------------------------------------
Presidents Ford, Carter, Reagan and Bush accepted the Indian Self-
Determination Policy as the baseline for American Indian policy. In
their Administrations, Congress built upon Self-Determination Policy
through the Indian Health Care Improvement Act, the American Indian
Religious Freedom Act, the Tribal College Act, the Indian Self-
Governance Act, and the Indian Gaming Regulatory Act, among others.
On January 24, 1983, President Reagan issued a Statement on
American Indian Policy, explaining:
When European colonial powers began to explore and colonize
this land, they entered into treaties with the sovereign Indian
nations. Our new nation continued to make treaties and to deal
with Indian tribes on a government-to-government basis.
Throughout our history, despite periods of conflict and
shifting national priorities, the government-to-government
relationship between the United States and Indian tribes has
endured. The Constitution, treaties, laws and court decisions
have consistently recognized a unique political relationship
between Indian tribes and the United States which this
administration pledges to uphold....
The administration intends to...remove[e] the obstacles to
self-government and...creat[e] a more favorable environment for
the development of healthy reservation economies....
Development will be charted by the tribes, not the Federal
Government.... Our policy is to reaffirm dealing with Indian
tribes on a government-to-government basis and to pursue the
policy of self-government for Indian tribes without threatening
termination....
For his part, President George H.W. Bush reaffirmed President
Reagan's policy and said,
This government-to-government relationship is the result of
sovereign and independent tribal governments being incorporated
into the fabric of our nation.... I take pride in acknowledging
and reaffirming the existence and durability of our unique
government-to-government relationship. 8
---------------------------------------------------------------------------
\8\ President George H.W. Bush Statement, June 14, 1991.
---------------------------------------------------------------------------
The Indian Gaming Regulatory Act
In 1988, President Reagan signed into law the Indian Gaming
Regulatory Act (IGRA) on October 17. Its purpose is to ``promote tribal
economic development, tribal self-sufficiency, and strong tribal
governments.''
IGRA promotes tribal self-government by calling upon tribal
governments to enact a tribal gaming regulatory ordinance for Indian
gaming, subject to the review of the National Indian Gaming Commission
to ensure that the ordinance meets the minimum statutory requirements.
For Class II bingo, games similar to bingo, non-banked card games and
pull-tabs, the NIGC then provides background monitoring to support
tribal regulators. For Class III casino, lottery and pari-mutuel horse
racing, Indian tribes must enter into Tribal-State compacts,
establishing the regulatory framework and allocating responsibility
between state and tribal regulators. The NIGC has a limited role in
regard to Class III gaming, reviewing background checks and licenses of
management and key employees, reviewing annual audits, approving tribal
gaming ordinances, and approving management contracts.
IGRA acknowledges tribal gaming regulators as the primary, day-to-
day regulators of Indian gaming, yet the NIGC has continually tried to
expand its duties beyond its statutory mandate. In Colorado River
Indian Tribes v. NIGC, the Federal Court of Appeals for the District of
Columbia held that NIGC does not have authority to issue mandatory
minimum internal control standards for Class III gaming that could
conflict with Tribal-State compacts.
H.R. 5608: Consultation and Coordination with Indian Tribes Act
President Clinton issued an Executive Order on Consultation and
Coordination with Indian Tribes Act, Executive Order No. 13175 (2000).
This Executive Order sets forth the requirements and framework for
Executive agencies to consult with Indian tribes on a government-to-
government basis to promote tribal self-government, protect treaty
rights and safeguard tribal trust assets. President Bush affirmed
Executive Order No. 13175 in his Executive Memorandum of September 23,
2004. President Bush said, ``My Administration is committed to
continuing to work with federally recognized tribal governments on a
government-to-government basis and strongly supports and respects
tribal sovereignty and self-determination....''
In essence, H.R. 5608 codifies the essential principles of these
longstanding government-to-government consultations between the United
States and Indian tribes. This bill develops an ``accountable
consultation process'' that must be used by the Department of Interior,
Indian Health Service and the National Indian Gaming Commission for all
policies that have tribal implications. The process is meant to ensure
the following:
that tribal officials have ample opportunity to provide
input and recommendations to agencies on regarding formulating
amending, implementing or rescinding policies with tribal implications;
that tribal input and recommendations are fully
considered by the agencies before such policies are created or changed;
that tribal officials are provided written notification
upon the creation or change of such policies, and
that policies do not become effective until at least 60
days after written notification to tribal officials.
The bill sets out the fundamental principles guiding the
development of the ``accountable consultation process.'' Primarily,
these principles recite that:
the United States has a legal and political relationship
with tribes based on the constitution, treaties, statutes, executive
orders, and court decisions; and
the United States recognizes the right of tribes to self-
government and that tribes exercise inherent sovereign powers over
tribal lands and members.
Agencies would be required to likewise respect the tribal self-
government, honor treaty rights and strive to meet the responsibilities
arising from our unique legal and political relationship. When Tribal
governments administer federal statutes and regulations, the agencies
are required to:
encourage tribes develop their own policies to achieve
program objectives;
defer to Indian tribes to establish standards to the
extent they do not violate applicable laws; and
to consult with tribes regarding the need for federal
standards and any alternatives that would preserve the authority of
Indian tribes when determining whether to establish federal standards.
H.R. 5608 requires each agency to develop an ``accountable consultation
process'' not later than 60 days after enactment.
The bill also prohibits the creation or change of federal policies
affecting Indian tribes that impose substantial direct compliance costs
on tribes unless funds are provided for compliance or the policy is
developed through an accountable consultation process. The regulation
in its preamble must provide a summary impact statement that includes
the extent of prior tribal consultation, a summary of the tribal
concerns, and the extent to which the agency met tribal concerns.
The bill encourages the use of negotiated rulemaking when
developing policies relating to tribal self-government, tribal trust
resources, or tribal treaty rights. Agencies should avoid preempting
tribal law. Agencies shall attempt to streamline the processes by which
Indian tribes apply for waivers of statutory and regulatory
requirements.
Concerns about NIGC's Current ``Consultation'' Efforts
Indian country has serious concerns about the failure of the NIGC
and other core Federal agencies to appropriately consult and coordinate
with tribal governments. As an independent agency, the NIGC has
announced that it is not required to follow Executive Order No. 13175
and has developed its own consultation policy. For its part, the NIGC
has undertaken regulatory revisions without appropriate consultation:
NIGC regulations on environment, public health and safety
and facility licensing were revised without considering meeting with
tribal governments and coordinate agencies that already work with
tribes in these areas, such as EPA, IHS, CDC, BIA, etc.;
Indian Gaming Regulatory Act Class II Indian gaming
regulations are being revised with no cost/benefit analysis. The NIGC
closed the notice and comment period on March 9, 2008 even though less
than 40 working days prior that an independent economist produced a
report for NIGC that demonstrated that the regulations would cost
Indian tribes between $1.2 billion and $2.8 billion annually;
NIGC failed to conduct a cost benefit analysis of the
rule and viable alternatives prior to its publication in the Federal
Register and wrongly rejected application of the Regulatory Flexibility
Act; and
IGRA Class II definition regulations are being revised
even though the Federal Courts have already approved the NIGC
regulations that were issued in 2002!
In all of these cases, proper consultation and respect for tribal self-
government would result in better results for Indian country and the
nation as a whole.
The NIGC denies they must follow the Regulatory Flexibility Act
even though its economic analysis of the Class II regulations indicates
that there could be an impact of between $1.2 billion and $2.8 billion
annually. That's clearly a major economic impact on Indian tribes and
Indian communities. The NIGC should have considered the cost and
benefits of retaining the current Class II definition regulation--that
would have reduced the impact considerably.
NIGC commissions and de-commissions Federal Advisory Committees at
will, without regard to the oversight of GAO. Just last month, the NIGC
did away with its Minimum Internal Control Standards Tribal Advisory
Committee (MICS TAC) and the Technical Standards Tribal Advisory
Committee (TTAC). There is now a perception in Indian country that the
NIGC is changing the criteria (at least 5 years as a tribal regulator)
to eliminate the views of elected tribal officials and tribal gaming
operators and create a new Tribal Advisory Committee that is stacked
with regulators who are handpicked to favor NIGC views.
Indeed, the NIGC appears to be reluctant to follow many of the
general guidelines that constrain other agencies. Executive Order No.
12866 and OMB Circular No. A-4 directive to Executive agencies on
``Regulatory Analysis'' indicate that the NIGC should have considered
whether it was necessary to promulgate these Class II Regulations.
Under these guidelines, the NIGC should have seriously considered the
alternative of using the statutory terms ``electro-mechanical
facsimile,'' rather than develop a new regulation and perhaps more
significantly, should have considered the possibility of simply
maintaining the existing regulatory definitions, which were approved by
the 8th Circuit Federal Court of Appeals in U.S. v. Santee Sioux Tribe.
9 Yet, the NIGC appears to reject the application of these
and other executive guidelines because it is an independent agency.
Clearly, a statutory direction to NIGC to consult with Indian tribes is
in order.
---------------------------------------------------------------------------
\9\ 324 F.3d 607, 615-617 (8th Cir. 2003) (Relying on the existing
Class II regulations, the Court found that ``NIGC's conclusion that
Lucky Tab II is a permissible class II gaming device seems to be a
reasonable interpretation of the IGRA'').
---------------------------------------------------------------------------
Conclusion
In 1960, President Kennedy recognized that too often Indian tribes
had been made promises that were later broken:
Recently we have seen some very fine policy pronouncements from
the Secretary of the Interior. But the Secretary's words have
time and again been belied by the actions of the leadership of
the Bureau of Indian Affairs. Indians have heard fine words and
promises long enough. They are right in asking for deeds.
See John F. Kennedy Letter, above. Today, Indian tribes face the same
problem with the NIGC concerning consultation. Five years ago, tribal
governments asked the Senate Committee on Indian Affairs to require the
NIGC to follow Executive Order No. 13175 as a statutory directive
because the NIGC claimed exemption from the consultation order based
upon its status as an independent agency. At that time, the NIGC
declared that it would write its own consultation policy. Now,
experience has shown that the NIGC needs to have a statutory directive
on consultation--otherwise it will simply give in to its bias against
tribal government institutions and in favor of Federal rulemaking.
When Indian policy is left up to the bureaucracy to decide, as
President Reagan explained,
[T]here has been more rhetoric than action. Instead of
fostering and encouraging self-government, Federal policies
have by and large inhibited the political and economic
development of tribes. Excessive regulation and self-
perpetuating bureaucracy have stifled local decision making,
thwarted Indian control of Indian resources, and promoted
dependency rather than self-sufficiency....
We commend the Committee for its work on this bill. We respectfully
request that Congress take action to ensure that tribal governments are
heard during the development of federal regulations. H.R. 5608 should
be enacted into law.