[Senate Hearing 110-224]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-224
 
                   BACKLOGS AT THE DEPARTMENT OF THE 
     INTERIOR: LAND INTO TRUST APPLICATIONS; ENVIRONMENTAL IMPACT 
                              STATEMENTS; 
                PROBATE; APPRAISALS AND LEASE APPROVALS

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

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 4, 2007

                               __________

         Printed for the use of the Committee on Indian Affairs

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                      COMMITTEE ON INDIAN AFFAIRS

                BYRON L. DORGAN, North Dakota, Chairman
                  CRAIG THOMAS, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            LISA MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii              TOM COBURN, M.D., Oklahoma
TIM JOHNSON, South Dakota            PETE V. DOMENICI, New Mexico
MARIA CANTWELL, Washington           GORDON H. SMITH, Oregon
CLAIRE McCASKILL, Missouri           RICHARD BURR, North Carolina
JON TESTER, Montana
                Sara G. Garland, Majority Staff Director
              David A. Mullon Jr. Minority Staff Director






















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on October 4, 2007..................................     1
Statement of Senator Dorgan......................................     1
Statement of Senator Murkowski...................................    42
    Prepared statement...........................................    45

                               Witnesses

Artman, Carl J., Assistant Secretary for Indian Affairs, U.S. 
  Department of the Interior.....................................     3
    Prepared statement...........................................     4
Bigelow, Frank, Supervisor, Madera County Board of Supervisors...    24
    Prepared statement...........................................    26
Chicks, Robert, Vice President, National Congress of American 
  Indians (NCAI), Midwest Region; President, Stockbridge Munsee 
  Band of Mohican Indians; accompanied by John Dossett, General 
  Counsel, NCAI..................................................    33
    Prepared statement...........................................    35
His Horse Is Thunder, Ron, Chairman, Standing Rock Sioux Tribe...    14
    Prepared statement...........................................    15
Nash, Douglas, Director, Institute for Indian Estate Planning and 
  Probate........................................................    27
    Prepared statement...........................................    29
Rhodes, William R., Governor, Gila River Indian Community........    18
    Prepared statement...........................................    19

                                Appendix

Altekruse, Charlie, North Fork Rancheria Community Relations, e-
  mail...........................................................   118
Amey, Nettie L., Chairperson/President, Fairmead Community & 
  Friends, letter................................................    88
Anderson, John P., Madera County Sheriff, letter, dated October 
  17, 2007.......................................................   111
Belton, Jerry T., Mayor, City of Chowchilla, letter, dated 
  October 17, 2007...............................................   112
Blackwood, Ken, CEO/President, San Joaquin Valley Black Chamber 
  of Commerce, letter, dated October 17, 2007....................   106
Bomprezzi, Sally J., Mayor Pro Tem, City of Madera, letter, dated 
  October 15, 2007...............................................    79
Bonilla, Rosanne, Realtor/Broker, e-mail, dated October 16, 2007.    81
Brannon, Randall L., Citizen, Madera, Calif., letter, dated 
  October 18, 2007...............................................    85
Bray, Debra L., President/CEO, Madera Chamber of Commerce, 
  letter, dated October 17, 2007.................................   128
Cobb, Jim, President, Taxpayers Association of Madera County, 
  letter, dated October 18, 2007.................................   113
Crooks, Stanley R., Chairman, Shakopee Mdewakanton Sioux 
  Community, prepared statement with attachment..................    62
Darracq, Nicole, Partner, AgPRO Marketing, letter, dated October 
  18, 2007.......................................................    87
DaSilva, Chris, Resident, Madera, e-mail.........................   118
Farinelli, Rick, GM/VP of Production, Berry Construction, Inc., 
  letter, dated October 16, 2007.................................    83
Frazier, Sally L., Superintendent of Schools, Madera County, e-
  mail, dated October 18, 2007...................................    78
Gilbert, Gary, Former District 5 Supervisor, Madera County, 
  letter, dated October 19, 2007.................................   115
Hall, Larry, Coldwell Banker Real Estate, letter, dated October 
  18, 2007.......................................................    89
Hamzy, Mike A., Principal/Owner, Harbison International Inc., 
  letter, dated October 19, 2007.................................    90
Kahn, Bobby, Executive Director, Madera County Economic 
  Development Commission, letter, dated October 17, 2007.........   119
Lee, David, Coldwell Banker Real Estate, letter, dated October 
  18, 2007.......................................................   117
Marden, Robert and Donna, Madera Police Department Volunteers, 
  letter, dated October 17, 2007.................................    82
Mariscotti, Christopher, e-mail, dated October 18, 2007..........   118
Medellin, Andy, Owner, Andy's Sports & Design, letter............   120
Mindt, Steven A., Mayor, City of Madera, letter, dated October 
  17, 2007.......................................................    49
Nelson, Glenda, Chairperson, Estom Yumeka Maidu Tribe, Enterprise 
  Rancheria, letter with attachment, dated October 4, 2007.......   122
Perez, Herman, Co-Chair, Business Coalition for a Better Madera, 
  letter, dated October 17, 2007.................................   114
Piepho, Mary N., Chair, Board of Supervisors, Contra Costa 
  County, letter and prepared statement..........................    92
Pistoresi, Monte, Pistoresi Ambulance Service, letter, dated 
  October 19, 2007...............................................    91
Prosperi, Sam, Account Manager, Aerotek Staffing, letter, dated 
  October 19, 2007...............................................    77
Rivera, Dora, President/CEO, FAHCC, letter, dated October 18, 
  2007...........................................................   116
Ridge, Ollia, President, Golden Valley Chamber of Commerce, 
  letter.........................................................    86
Saint Regis Mohawk Tribe, prepared statement.....................    50
Salazar, Nora, President, Nora & Associates Realty, letter.... 130, 131
Schmall, Darren, Owner, Pizza Farm Agri-tainment Company, letter.   121
Slack, Luther, President, Madera NAACP, letter, dated October 18, 
  2007...........................................................   129
Village of Monticello, Town of Thompson, and Sullivan County, 
  joint prepared statement.......................................   108
Written Questions Submitted to Carl J. Artman....................   131


                   BACKLOGS AT THE DEPARTMENT OF THE 
                       INTERIOR: LAND INTO TRUST 
APPLICATIONS; ENVIRONMENTAL IMPACT STATEMENTS; PROBATE; APPRAISALS AND 
                            LEASE APPROVALS

                              ----------                              


                       THURSDAY, OCTOBER 4, 2007


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:30 a.m. in room 
628, Senate Dirksen Office Building, Hon. Byron L. Dorgan, 
Chairman of the Committee, presiding.

          OPENING STATEMENT OF HON. BYRON L. DORGAN, 
                 U.S. SENATOR FROM NORTH DAKOTA

    The Chairman. We will call the hearing to order. This is an 
oversight hearing of the Indian Affairs Committee of the United 
States Senate.
    Today, the Committee is holding an oversight hearing to 
examine the status of tribal applications at the Department of 
the Interior. Those applications especially relate to the 
management and the development of Indian lands.
    Since I became Chairman of this Committee, I have made it 
clear that my priorities would focus on Indian health care, 
housing and education, as well as economic development. Too 
many tribal communities, in my judgment, go without these basic 
services that many of us take for granted.
    However, before we can effectively move on these issues, we 
must first help tribes secure and develop their own land base. 
Land holds a great spiritual and cultural significance to 
Indian tribes. The tribal land base is the necessary building 
block that enables tribal governments to provide housing, 
economic development, and essential government services to 
their citizens.
    Although Indian tribes are governments, almost all 
activities that involve the development of Indian land have to 
be approved by the U.S. Department of the Interior. That 
includes placing land into trust for the benefit of the Indian 
tribe and approving leases for most economic or agricultural 
activities on Indian lands. Congress delegated the 
responsibility to approve these transactions to the Secretary 
of the Interior. Our intent was to protect and preserve the 
tribal land base. However, delays at the Department of the 
Interior in performing its duties have dramatically slowed the 
growth and the development of tribal communities and their 
economies.
    Let me provide some examples: the Gila River Indian 
community in Arizona. In February of this year I held a 
listening session on the Gila River Indian Reservation south of 
Phoenix, Arizona. During the session, the tribe showed me a 
state of the art office building--the picture is on that 
chart--a state of the art office building that it constructed 
on its trust land.
    Apparently, after construction was complete on the 
building, the BIA decided it needed to approve a master lease 
before the tribe could sublet any of the space to tenants. The 
tribe has been trying to get this lease approved for more than 
a year. There is still no lease. So after investing $7.2 
million to build a 71,000 square foot office building, the 
tribe has been unable to sublet any of that space for over a 
year and that building sits there empty.
    I am confident that the BIA as trustee wants to help the 
tribes with economic development opportunities like this, but 
in this case it is not happening. So I am glad we have the 
opportunity today to hear from Mr. Artman and others to explain 
what has prevented that sort of thing from happening.
    Another example is the Puyallup Tribe where the tribe 
acquired 12 acres of land in 1997 that it uses as a fish 
hatchery to preserve its prize steelhead trout. The tribe 
submitted an application to have the land placed in trust in 
1997. Seven years later, in 2004, the BIA regional office told 
the tribe their application and a draft decision had been sent 
to the Assistant Secretary for approval. It is now October, 
2007, a full decade later, and three years after the regional 
office said it had been sent to the Assistant Secretary for 
approval, and no decision has been made on the tribe's 
application.
    On September 27, a notice was published in the Federal 
Register stating that the Secretary would be placing 750 acres 
of land into trust for the Shakopee Sioux community within the 
next 30 days. That is the Shakopee Sioux community in 
Minnesota. I am sure the tribe is grateful to have a decision, 
but they waited 11 years.
    These delays I think have serious consequences and I want 
to show how after having to wait 10 years for a decision 
impacts the ability of tribes to provide essential services to 
their people. Photograph one that we have held up there shows 
what the tribal and surrounding land looked like in 1997. The 
land that the tribe was trying to have taken into trust is 
outlined in red.
    In photograph two you will see the tribal and surrounding 
lands, and how they looked in 2005. Much development is 
occurring on the tribe's trust land and on non-Indian land. The 
only pockets of land without any development is the land that 
the tribe is seeking to have taken into trust. The tribe is 
hoping to use the land for housing or to build a community 
center.
    These pictures show how the delays at the Department of 
Interior are impairing the ability of the tribes to develop 
their land, their economies and their future, and the delays 
are just not acceptable. I don't understand why the delays are 
occurring. I do know that there was a long period of time when 
the Assistant Secretary's position was open over at Interior. I 
got engaged. This committee was engaged in trying to get a new 
Assistant Secretary on board. We are pleased that Mr. Artman is 
there.
    I want to be clear that these delays are not a new 
phenomenon at the Department of the Interior. They have existed 
for a long, long time. Indian Country has always expressed an 
overwhelming concern that the delays on many issues are 
becoming worse. We also hear concerns from both Indian and non-
Indian communities about the lack of transparency with many of 
these processes. We understand that internal guidelines and 
policies, rather than published regulations very often govern 
the process.
    So today, we will hear from Assistant Secretary Carl Artman 
about the current state of affairs at the Department and how 
these problems are being addressed. I plan to ask Assistant 
Secretary Artman to come back in six months and provide us with 
another status report on these same issues. At that time, we 
will decide as a Committee whether we need to find some way to 
intervene in some of these matters.
    Let me thank all of you who have come to Washington today 
to participate and to testify.
    Carl Artman is the Assistant Secretary for Indian Affairs 
at the Department of the Interior. Assistant Secretary Artman 
will explain the five processes and provide the Committee with 
a status report on the number of pending applications for each. 
We will then hear from five additional witnesses. I will 
introduce each of them separately when we ask them to testify.
    Assistant Secretary Artman, why don't you proceed? Your 
entire statement will be made a part of the permanent record, 
and you may summarize.

  STATEMENT OF CARL J. ARTMAN, ASSISTANT SECRETARY FOR INDIAN 
            AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

    Mr. Artman. Thank you, and good morning, Mr. Chairman and 
members of the Committee. It is a pleasure to be here to 
present the Department's statement on the pending land-into-
trust applications, environmental impact statements, probates, 
appraisals and lease approvals.
    With your permission granted, I will submit the full 
written testimony for the record and just make a brief opening 
statement.
    This hearing was called to review the process surrounding 
and the potential backlog of pending applications or Bureau 
actions related to tribal and individual tribal member real 
property. We have some bright spots, areas in which we have 
tackled the questioned backlog with success, and we have some 
other areas that are, at best, can be called opportunities for 
great improvement.
    Our bright spot is probates. I am pleased to note that we 
have cut our inventory in half over the last two years. 
Moreover, 98 percent of our backlog cases are ready for 
adjudication and distribution of the assets. We plan to clear 
the backlog by the end of 2008. In fact, by 2009, we plan to 
handle the probate cases with BIA staff and eliminate the need 
for outside contractors. This was accomplished without the 
internet, and if we are successful in getting back online, we 
expect that we can shorten the case preparation phases.
    The BIA took a critical look at the historically high 
caseload of probate cases in late 2005. An average Indian 
probate case took an excessive amount of time to prepare, 
adjudicate and distribute. Building on the reorganization and 
standardization of the probate program, the Bureau has reduced 
the probate caseload by one half over the last two years.
    Combining the efforts of staff dedicated to probate, with a 
new comprehensive tracking system, the Department has improved 
case management and coordination of probate activities across 
three separate offices: the Bureau of Indian Affairs, the 
Office of Hearing Appeals, and the Office of the Special 
Trustee for American Indians.
    Acquisition of land into trust is an area that needs a lot 
of work. You will probably ask me today how many outstanding 
applications we have for any particular area. The best that I 
can give you is an estimate, because we don't have an accurate 
tracking system for applications. This is an area besieged by a 
growing number of applications, decades of differing, if not 
contradictory, guidelines from within, and a culture of 
reluctance that is forged by lawsuits.
    Our frontline employees in the region are frustrated by the 
growing stack of applications, and the tribes represented by 
the people to my left are frustrated by the lack of action and 
the impact that it has on the governmental needs, housing, 
health care, and economic development. Each category, on or off 
reservation, gaming or non-gaming, has its unique challenges.
    This has been a front burner issue for me since before I 
came to the Department. As my tribe's Chief Counsel, I worked 
in coordination with the Midwest Regional Office to help 
develop new methods to expedite the land-into-trust 
applications. I understand first-hand the frustration felt by 
the tribes across the Country. As I told this Committee during 
the confirmation process, fixing the fee-to-trust issues was a 
priority for me.
    We have been working on solutions for the on-reservation 
questions in recent months and this will soon bear results. We 
found that BIA real estate offices that are successful in 
managing their fee-to-trust workload have, to some degree, 
implemented corrective measures with the intent of moving cases 
forward. The most success can be found in varying levels in 
some regions do in part because they defined what a complete 
application is and will not accept an incomplete application. 
They follow stringent response time lines and have defined when 
a case becomes inactive, and implement a process for handling 
those cases.
    Regional staff are looking for guidance and leadership on 
this issue. They will receive it, and in turn I am confident 
that they will produce the results that we are looking for.
    I look forward to answering your questions regarding these 
two issues, as well as any on commercial leasing, appraisals, 
environmental submissions or other issues.
    Thank you.
    [The prepared statement of Mr. Artman follows:]

 Prepared Statement of Carl J. Artman, Assistant Secretary for Indian 
                Affairs, U.S. Department of the Interior
    Good morning Mr. Chairman, Madam Vice Chairwoman, and Members of 
the Committee. It is a pleasure to be here today to present the 
Department's statement on the land into trust applications, 
environmental impact statements (EIS), probates, appraisals and lease 
approvals processes and the number of each that are pending. My 
testimony includes an overview of each item and the procedures that we 
follow as set forth in statute and regulation in order to process them.
Probate
    I am pleased to announce that we have cut our inventory in half 
over the last two years. Moreover, 98 percent of our backlogged cases 
are ready for adjudication and distribution of assets. We plan to clear 
the backlog by the end of 2008. In fact, by 2009, we plan to handle the 
probate cases with BIA staff and eliminate the need for outside 
contractors.
    The BIA took a critical look at the historically high caseload of 
probate cases in late 2005. An average Indian probate case took an 
excessive amount of time to prepare, adjudicate and distribute. 
Building on the reorganization and standardization of the probate 
program, the Bureau has reduced the probate caseload by one half over 
the last two years. Combining the efforts of staff dedicated to probate 
with a new comprehensive tracking system (ProTrac), the Department has 
improved case management and coordination of probate activities across 
three separate offices: the Bureau of Indian Affairs, The Office of 
Hearings and Appeals, and the Office of the Special Trustee for 
American Indians.
    There are four phases for the completion of a probate case under 
BIA's new system. Using ProTrac, BIA monitors the performance of each 
case at each phase all the way through distribution of assets to the 
heirs. These phases are: (1) Pre-Case Preparation; (2) Case 
Preparation; (3) Adjudication; and (4) the Closing Process.
    In 2005, we created a report regarding the probate backlog and, as 
of today, the BIA has completed 98 percent of the estates in the Case 
Preparation Phase and 86 percent of the estates have been distributed. 
The 2005 report included all estates where the decedent's date of death 
was prior to 2000 or whose date of death was unknown and the estate was 
part of the managed inventory as of September 30, 2005. As of September 
21, 2007, the ProTrac system contains 53,802 cases, of which 17,208 
cases are currently active. In FY07, the Bureau exceeded its annual 
probate goal by 31 percent.
Trust Land Acquisitions for Non-Gaming Purposes
    The basis for the administrative decision to place land into trust 
for the benefit of an Indian tribe is established either by a specific 
statute applying to an Indian tribe, or 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 the acquisition is 
legislatively mandated. Mandatory land acquisitions may be due to a 
land claim settlement with a specific Indian tribe.
    There are two primary types of trust land acquisitions under this 
category which are processed for Indian landowners by the Bureau of 
Indian Affairs (BIA). They are: (1) on-reservation and (2) off-
reservation. We have approximately 1,211 fee-to-trust submissions 
pending, of which over 1,100 are not yet ripe for decision. On-
reservation requests maybe made by both tribal and individual Indians, 
off-reservation requests maybe made by Indian tribes.
    Taking land into trust is an important decision not only for the 
Indian tribe seeking the determination but for the local community 
where the land is located. The transference of fee land title to trust 
status may have serious tax and jurisdictional consequences that must 
be considered before any discretionary action maybe taken. 
Additionally, the Federal Government must ensure that the land 
acquisition will be in the best interest of the applicant and that the 
Federal Government has sufficient resources to properly manage the 
property.
    The 151 process is initiated when an Indian tribe or an individual 
Indian submits a request to take land into trust. The regulations 
require that an applicant submit a written request describing the land 
to be acquired and other required information. Once a request arrives 
at the BIA agency or regional office, it is entered into the BIA's Fee-
to-Trust Tracking System. The request is reviewed to determine whether 
all information has been submitted and whether there are additional 
steps needed to complete the application. The BIA works with the 
applicant to complete the application.
    The applicant must submit: (1) a map and a legal description of the 
land (a survey may be needed if the land cannot be described by an 
``aliquot'' legal description); (2) a justification of why the land 
should be in trust; and (3) information on the present use of the 
property, the intended use of the property, and whether there are any 
improvements on the land.
    The BIA must also take several internal steps necessary to assess 
the application. These include determining whether the land is on the 
applicant's reservation or contiguous to it and whether the trust 
acquisition is mandatory or discretionary. We check whether there are 
access roads to and from the property as we will not acquire landlocked 
parcels.
    We also determine whether the applicant already has an undivided 
fractional trust or restricted interest in the land it is requesting to 
have placed into trust, and how much trust or restricted land the 
applicant has an interest in overall. We assess whether the land is 
already under the tribe's jurisdiction and, if not, whether there are 
any anticipated additional responsibilities we would assume if the fee 
land were taken into trust. We may also examine if the property lies 
within the Indian tribe's approved Land Consolidation Plan.
    For off-reservation land acquisitions, additional information is 
required. The BIA will request a business plan if the land is to be 
used for economic development. If the land is within the reservation of 
another Indian tribe, the applicant must receive written consent from 
the other Indian tribe's governing body if the applicant does not 
already own a fractional trust or restricted fee interest in the 
property to be acquired. If the land is off-reservation, we examine the 
proximity to the applicant's other trust or restricted land.
    Once an applicant has submitted sufficient information, the BIA 
sends out notification letters to the state, county, and municipal 
governments having regulatory jurisdiction over the land, with a 
request to respond within thirty (30) days with a description of the 
impacts of transferring the land into trust regulatory jurisdiction, 
real property taxes and special assessments.
    The next stage in the process, compliance with National 
Environmental Policy Act (NEPA) is essential to the BIA's decision-
making, and takes substantial time to complete. These assessments are 
done to determine if the proposed use of the land is feasible or 
desirable and what effect the proposed project will have on the human 
environment, local habitation and wildlife. Depending on the type of 
environmental review done, this process can take months or years. A 
Categorical Exclusion (CAT-EX) can be used if there has been previous 
environmental documentation or there will be no change in land use for 
compliance with NEPA.
    Applicants are encouraged to begin their NEPA process at the same 
time the BIA sends out the impact notification letters. The NEPA 
process begins with the publication in the Federal Register of a 
``Notice of Intent'' to conduct an EA or EIS. Most of the non-gaming 
applicants conduct an EA.
    In addition, an applicant must conduct a hazardous materials 
survey. This survey alerts the applicant and the BIA to any 
environmental hazards associated with the land that might conflict with 
the project's use or make the land undesirable.
    For on-reservation applications, the Regional Office or Agency 
Superintendent makes the final determination of whether to approve the 
acquisition. For off-reservation non-gaming acquisitions, the Regional 
Offices send the recommended decisions on the applications to the 
Central Office in Washington, D.C., for review.
    When the BIA approves the fee-to-trust application, it conducts a 
title examination to determine whether there are any liens, 
encumbrances, or other clouds on the title that make the land 
unmarketable.
    After the decision, the BIA prepares a ``Notice of Decision'' to 
take the land into trust for publication. At this point, any 
governmental entity or individual with standing who objects to the 
decision to take the land into trust may file an appeal. If the appeals 
process upholds our decision to take land into trust, this is also 
published.
Environmental Impact Statements
    When an Indian tribe submits a request to the BIA to fund, issue a 
permit for, or approve an undertaking, the BIA produces an EA or EIS, 
usually by contract, to help inform a federal decision by analyzing the 
project's potentially significant impacts to the environment. The most 
common BIA ``federal actions'' are lease approvals and transfers of 
land into or out of trust status.
    Three occasions during the EIS process require a notice in the 
Federal Register: (1) the ``Notice of Intent to Prepare an EIS'' at the 
start of the process, (2) the ``Notice of Availability of a Draft EIS'' 
when a draft EIS is completed and issued, and (3) the ``Notice of 
Availability of the Final EIS'' at the time the final EIS is completed 
and issued. When the BIA is the lead agency, it prepares and issues the 
``Notice of intent to Prepare an EIS.'' The Regional Director oversees 
the scope of the project.
    When the Draft EIS is complete, a ``Notice of Availability'' is 
published in the Federal Register by both the EPA and the BIA. The 
BIA's ``Notice of Availability of the Draft EIS'' informs the public 
that we are preparing or making available an EIS, and there is a 
timeframe provided in which they must provide their comments. Once the 
agency has received and responded to comments, it publishes the 
``Notice of Availability of the Final EIS.''
    After issuance of the Final EIS, the BIA has sufficient information 
to make a policy decision on whether to approve the acquisition. The 
Regional Director or Agency Superintendent makes this decision for most 
non-gaming matters, and issues a Record of Decision (ROD) indicating 
whether the project has been approved or disapproved. Lawsuits on the 
sufficiency of the EIS and on the BIA's consideration of the regulatory 
criteria under 25 CFR Part 151 take place at this point.
    The length of time necessary to prepare an EIS depends on the 
complexity of the proposed project. In addition, public comment may 
point out weaknesses in the EIS that require further studies or 
assessments before the Final EIS may be issued. Statements are 
susceptible to delays when multiple agencies must coordinate work on an 
EIS. Delays also occur when the Federal EIS is stalled because the 
tribe alters the project plan or scope.
Appraisals
    Appraisals are conducted to provide impartial estimates of market 
value for a variety of real property trust interests. Consistent with 
regulatory requirements, the vast majority of trust transactions 
(including the purchase of fractional interests by the Indian Lands 
Consolidation Office) require an appraisal be conducted to ensure a 
fair return on the use of trust assets. Appraisals are generally used 
to identify a beginning rate at which to initiate the negotiation of 
lease terms.
    In FY 2002, pursuant to Secretarial Order, the management and 
operation of the real estate appraisal function was transferred from 
the BIA to the Office of the Special Trustee for American Indians 
(OST). This transfer was conducted to eliminate the appearance and 
potential for a conflict of interest that could arise in response due 
to the reporting structure that required appraisers to report to the 
BIA Regional Directors who were requesting the appraisal. In FY 2005, 
funding for the program likewise was transferred to the OST.
    Appraisals are requested by the BIA when required for a trust 
transaction. The BIA issues the appraisal request to the OST Office of 
Appraisal Services (OAS) which conducts the appraisal and returns the 
completed valuation to the BIA for its use. OAS appraisers aim to 
complete appraisals to meet the due dates requested by BIA.
    Currently, there is a backlog of appraisal requests in every region 
except the Eastern region. the largest backlog is in the Alaska region, 
where unique conditions exist relating to the large number of native 
organizations that request appraisals directly from OAS instead of 
through the BIA, as well as weather and accessibility issues that limit 
the ability of OAS to conduct appraisals year round.
    To address the backlog of appraisals, OAS has been working to 
carefully review each region's workload to determine those appraisals 
that are currently required. In addition, OAS is working to contract 
the vast majority of appraisal work to third parties, and to focus the 
role of staff appraisers on reviewing the appraisal, which is a 
federally inherent function. In March 2007, OST introduced the ITARS 
appraisal tracking system. All requests for appraisals are entered and 
tracked through this system. ITARS will provide a variety of management 
reports for evaluating the effectiveness of the appraisal program and 
an early detection system should the backlog begin to be a problem.
Lease Approvals
    Commercial development leases may involve tribal land, allotted 
land, or both. Most reservations do not have master plans and the 
development proposals may cover hundreds of acres. While delays are 
often incurred in obtaining BIA approval of these negotiated leases, 
especially where allotted land is involved, significant delays may also 
arise from the tribal Land Use and Economic Development processes 
administered by various tribal departments and committees. Delays in 
processing by the BIA may involve either the terms of the leases 
themselves, or the need for additional supporting documents to satisfy 
statutory or regulatory requirements or other trust-based obligations 
to the Indian landowners.
    These leases are typically negotiated by representatives of the 
parties. As a result, the appraisal needed to establish an acceptable 
``Minimum Rent'' and the extensive documentation needed to comply with 
NEPA, are often not obtained by the lessee until after the basic lease 
terms have been agreed upon.
    To expedite the process, appraisals may be obtained with the cost 
to the lessee, and submitted for review and approval by the 
Department's Office of Appraisal Services, but the terms of those 
appraisal assignments may need to be negotiated in advance. For the 
type of long-term mixed use projects being undertaken on allotted land 
located in urban areas, the BIA may also complete an economic analysis; 
based on such an analysis, the BIA may then seek to negotiate a shorter 
lease term and/or require that the leases also provide for the payment 
of an ``Additional Rent,'' to ensure that rent payments to the 
landowners keep up with land values over time.
    Congressional incorporation of a single ``land use'' provision in 
the Indian Land Consolidation Act Amendments of 2000 has streamlined 
the landowner consent process for commercial leasing of allotted land, 
with the consent of only a percentage of the ownership now being 
needed. As amended in 1970, the Long-Term Leasing Act requires that BIA 
ensures, before approving a lease, that ``adequate consideration has 
been given to the relationship between the use of the leased lands and 
the use of neighboring lands; the height, quality and safety of any 
structures or other facilities to be constructed on such lands; the 
availability of police and fire protection and other services; the 
availability of judicial forums for all criminal and civil causes 
arising on the leased lands; and the effect on the environment of the 
uses to which the leased land will be subject.'' Though these ``impact-
based'' standards were enacted shortly after NEPA, the courts have held 
that leases of Indian trust lands are subject to NEPA and other federal 
land use statutes, and leases which have been approved without proper 
NEPA documentation have been found to be void even after the lessee has 
acted in reliance on the approval.
    The Department's current trust reform effort will soon result in 
the publication of final, integrated ``Business Leasing'' regulations, 
including provisions which will, for the first time, implement the 1970 
amendment to the Long-Term Leasing Act. The new rules will incorporate 
standards of review and review time lines for commercial leases, as 
well as standards of review for the assignments, subleases, and 
financing agreements entered into under such leases, which are 
generally subject to very strict ``turnaround time'' requirements.
    The process may be complicated in some locations. Land ownership 
patterns and market forces will vary greatly, and the tribal role in 
the process may be that of: (1) a co-owner; (2) the local regulator of 
development, with responsibility for both pre-lease and post-lease 
approvals and permitting; (3) the administrator of the BIA's realty 
program under a 638 contract or self-governance compact; and/or (4) the 
lessee itself, via a tribal development enterprise. Whatever role(s) 
the Indian tribe may assume, the BIA and the Indian tribe will 
generally share the mutual goal of developing both tribal and allotted 
land to its highest and best use, on fair and reasonable terms 
consistent with the wishes of the landowners and the land use policies 
of the Indian tribe.
    To that end, BIA offices and Indian tribes with significant 
commercial land holdings should work together to:

        1. standardize lease provisions (to the extent possible), 
        integrate duplicative review procedures, and clarify pro-lease 
        documentation requirements, so that any necessary BIA input 
        occurs earlier, and final lease approval becomes more of a 
        formality;

        2. facilitate project financing and tenant subleases through 
        the use of form documents and/or stipulated approvals, while 
        protecting the economic interests of the landowners in the 
        event of a default or the relinquishment or reversion of 
        undeveloped property;

        3. minimize the risk of nonperformance to the Indian owners, by 
        requiring (prior to lease approval) that lessees provide 
        business references, financial references, final statements, 
        project pro formas, site plans, and limited guaranties or other 
        forms of security;

        4. identify the steps needed to comply (prior to lease 
        approval) with applicable tribal and federal land use laws, 
        including NEPA and the National Historic Preservation Act, and 
        the extent to which ``programmatic'' NEPA documents might be 
        used for planning purposes and then supplemented for individual 
        projects;

        5. establish basic criteria for the establishment of 'Minimum 
        Rent' for both improved and unimproved properties (including 
        unimproved properties where adjustments must be made for 
        offsite costs that will not be reimbursed, and improved 
        properties where the terms of existing leases are being 
        extended to facilitate new investment);

        6. impose reasonable limits on the authority of owner-agents to 
        consent on behalf of all of the owners (to assignments, 
        subleases, etc.), and consider ways in which the arbitration 
        remedy might be limited and/or defaults made subject to other 
        negotiated remedies;

        7. provide for the documentation and/or dedication of easements 
        within leasehold projects, and eliminate obstacles to the 
        establishment of offsite easements needed to provide access and 
        utilities to new developments;

        8. assemble development tracts (with permitted uses which are 
        narrowly but reasonably defined) and develop broad-based 
        marketing strategies, to increase the rental value of the land 
        while at the same time furthering the Indian tribe's land use 
        goals;

        9. promote meaningful owner participation in project revenues, 
        through specific ``Additional Rent'' structures/assumptions for 
        various types of developments, and alternative forms of project 
        ownership; and

        10. provide for the aggressive enforcement of both monetary and 
        non-monetary lease obligations, and the implementation of 
        appropriate land records and lease management systems, to 
        account for the use of the land and the income derived 
        therefrom.

    Distinctions can and should be made between the manner in which 
(and the terms on which) tribal and allotted land is leased, with the 
expectation being that those leases executed or approved by BIA on 
behalf of non-consenting individual owners will generally be subject to 
a higher standard. Comparisons should also be made between commercial 
leases of reservation lands and those involving neighboring lands 
administered by the states and cities.
    This concludes my testimony. I will be happy to answer any 
questions the Committee may have. Thank you.

    The Chairman. Mr. Secretary, thank you very much.
    Let me try to understand what you just said. How does what 
you just said describe for me and the Committee the 
circumstance with the Gila River office building that has sat 
vacant for a year?
    Mr. Artman. I think the Gila River office issue is probably 
a separate issue, separate in part from the fee-to-trust 
issues, the general fee-to-trust application issues. I think on 
the Gila River, there are some unique circumstances. There are 
quite a few allotments. Many of the allotments are under 10 
acres, and many of the developments, and this may be one of 
them, are oftentimes 100 acres plus.
    In that case, we have to bring together the parties, 
rectify the needs of all, and come up with a lease that is 
satisfactory to all those parties. That may not be the case in 
this particular situation. I have had a number of conversations 
with the Gila River regarding fee-to-trust issues. Many of them 
recently have been on the right of way issues and the 
interaction they are having with the Superintendent in working 
out those issues.
    I will be happy to follow up with Mr. Rhodes and discuss 
the issue further with him and get back to the Committee on 
that.
    The Chairman. But you are aware that a building is sitting 
there, a brand new commercial building sitting there empty for 
over a year. I would think you would say, wait a second; let's 
fix this in the next couple of months; let's find out what is 
wrong and fix it. Is that not the case?
    Mr. Artman. I agree with you, Senator. We will do that.
    The Chairman. You indicate that you don't have an accurate 
tracking system, a fully accurate tracking system for taking 
lands into trust. Is that what you are describing, the 
applications to take land into trust?
    Mr. Artman. That is correct.
    The Chairman. Why would there not be an accurate tracking 
system? Why would the agency not have a complete list of 
everything that is now pending?
    Mr. Artman. That is a very good question, and I wish I 
could answer that. This was something that we discovered over 
the last few months. Even in preparation for the hearing, we 
had a number of different numbers that were floating around on 
what the number of applications were that we had on 
reservation. Those are regional numbers, and then how many we 
had for off-reservation, which should come into the central 
office.
    The problem that came up is that we can tell you that we 
have, for example, 37 non-gaming off-reservation applications 
at the central office. What I can't tell you is where they are, 
because many times they are sent back to the region or sent 
back to the tribe for incompleteness. That is not a decent 
tracking system. That is not what we need to have.
    Now, expand that number out. That is just 37. Now, let's 
take it out to 11 regions where we have fee-to-trust issues and 
put the number into the thousands. We have somewhere between 
1,200 and 1,300 applications for fee-to-trust in various stages 
of consideration.
    In the testimony, the numbers that you have I think are as 
accurate as we can possibly get them. They break down what 
different stages the many of the applications are in. The 
civil-ed numbers are going to add up to 1,211, which is the 
latest number I have in terms of the applications.
    One of the things that we started about four months ago was 
I asked some people to go out into the field, go out to the 
regions and look at how each region was doing their fee-to-
trust. What were they using for the tracking system? What were 
they doing for the environmentals? How were they handling those 
issues? How was the communications with the local communities, 
how were those handled?
    What came back was a quilt work, at best, of different 
processes and applications that they use. If there are 11 
regions, there are probably more tracking systems than that on 
just how many applications are in the process. One of the 
things that we hope to unveil in weeks is our handbook, which 
will create a consistency for how to take land into trust, 
which will have at least internal guidelines, internal 
deadlines and time lines that we well adhere to.
    Second, it will have the proper method for tracking this. 
Now, we have been consolidating a lot of our real estate 
matters on to a system called TAAMS. I don't know if that is 
the proper system to follow, or if we should take advantage of 
what we call FTS, the fee-to-trust tracking system.
    But in any case, the current system that we have is 
unacceptable. If I can't turn to Chairman His Horse Is Thunder 
and say, this is how many I have from the Standing Rock Sioux 
Reservation, and this is the exact place where they are from 
the central office, perhaps they can do that in the regional 
office, but we can't do that from the central office as well. 
We don't have the proper ability to measure, and if we can't 
measure, we can't gauge success.
    The Chairman. I don't understand how we are at a point at 
the Interior Department and the BIA where we have 11 regions. 
Is that correct?
    Mr. Artman. There are 12 regions; 11 that deal with fee-to-
trust.
    The Chairman. We have 12 regions and we are not even sure 
whether each region is using the same approach? Are there no 
procedures or guidelines, and are they not audited so that you 
have the regions handling these issues the same way?
    Mr. Artman. Well, two things. One, there has been a change 
in leadership. With that change in leadership, there has 
certainly been a new fervor to audit, as you say. Second, what 
we have found is that coast to coast there are different 
methods that are used by the different regions for handling the 
fee-to-trust issues, everything from what kind of an 
environmental standard from NEPA is required.
    The Chairman. Why is that the case? Why would there not be 
a standard that had been put out years ago from the central 
office to say, here is the way you handle these; here are the 
guidelines?
    Mr. Artman. I think one of the issues is over the last 10 
years, there have been 22 separate memos and guidelines that 
have been put out from what is now my office, giving direction 
on how one should--what environmental standard they should use, 
and there is even a contradictory one on that; to who should be 
handling off-reservation; who should be handling on-
reservation. I don't blame the regions for having to pick up 
the ball and run with it. I think what you are seeing in the 
regions is certainly an entrepreneurial attitude towards fee-
to-trust, and I certainly applaud them for that.
    What we need to do is grab that same fervor and coordinate 
and make consistent the processes that we use from coast to 
coast.
    The Chairman. Yes, but you know, we developed computers a 
few decades ago. It seems like gross incompetence to me that we 
don't even know how many applications exist. I don't know. Are 
the internal policies and guidelines, such as they are, 
available to the public and to the tribes so that we would know 
what those guidelines are?
    Mr. Artman. We do have some that are made part of the 
departmental manual and those are certainly available. I am not 
sure if the other memos, the other internal memos are on the 
internet or not or on the department's web site. Certainly, I 
would be happy to make those available.
    The Chairman. Do you think those policies should be 
available and guidelines should be available so that there is 
transparency here?
    Mr. Artman. Well, certainly for the transparency's sake, 
but I would hope in a matter of weeks that we are not going to 
need those available because I would like to be able to 
promulgate something that creates more consistency.
    The Chairman. There are 43 applications pending. 
Apparently, those are completed?
    Mr. Artman. There are 37.
    The Chairman. Pardon me?
    Mr. Artman. There are 37 off-reservation the last time I 
checked.
    The Chairman. All right. And so how long would one expect 
for those to be waiting for a decision? All that is needed is a 
decision, is that correct?
    Mr. Artman. No, not on all of those. Your number, 43, that 
was correct last week. As of yesterday when I was going through 
the numbers again, it changed to 37. And of those 37----
    The Chairman. Wait, how does that happen?
    Mr. Artman. That is a good question. I don't know.
    The Chairman. You are in charge.
    Mr. Artman. I agree with you, Senator, and this is one of 
the things----
    The Chairman. I understand it is a good question. That is 
why I am asking it. How does it happen?
    [Laughter.]
    Mr. Artman. This is one of the problems that I am tackling 
and I am going to resolve. In peeling away the onions on this 
issue, and mind you, we started peeling away the layers of this 
onion months ago. These are a lot of the things that we are 
finding out. One of the things I had mentioned to your staff is 
that we have 800 applications, essentially, 790, because those 
are the latest numbers I had about a month ago. Yet, I am being 
told at different times that we have 1,200 and 1,300.
    The multiple tracking systems that we are using, the lack 
of consistent standards, is creating havoc for us, and that 
havoc creates havoc for the tribes as well.
    The Chairman. It is creating havoc for the tribes. It is 
creating incompetence for you. I don't understand. You are 
there a short time, so you inherit what exists, but I don't 
understand this at all. As I started looking last evening at 
the briefing materials for this, and dating back to earlier 
this year when I was at Gila River and looked at that building 
and thought, well, how on earth can this be? Somebody make a 
decision, for God's sake. You build a building and the BIA says 
you need a master contract so you can't get this done.
    Well, they say, do you have any acquaintance with the way 
the BIA works? I said, well, I have an acquaintance with the 
fact that we are paying money for a lot of employees. I know 
how it should work. It ought to be competent.
    I am just trying to understand. Tell me about staffing. I 
understand the Solicitor's office is involved in a number of 
these processes. What is the staffing level over there? Do we 
have vacancies over there? Is that causing delays?
    Mr. Artman. I think there are some vacancies, but in terms 
of are they causing delays, I am not sure the number of 
vacancies at the Solicitor's office or whether or not they are 
causing delays. I would hope not. I think that it is well 
managed over there, and things get accomplished.
    On our own side, there are about 1,000 vacancies throughout 
the BIA at any given time, out of 10,000 employees. We have 
about 150 to 200 vacancies in the trust area at any given time.
    The Chairman. How soon do you think you can fix this? In 
six months, do you think you can tell us that you have 
guidelines and specific procedures and every region is going to 
be employing the same guidelines and procedures, and that you 
are going to have an understanding of exactly how many 
applications exist, where they are in the process, what the 
tribes can expect with respect to service on these 
applications?
    I am not demanding that the Interior Department say yes or 
no, or demanding what the results should be. I am demanding 
that the Interior Department serve the interests here of making 
decisions on applications that are completed and filed in good 
faith. I think the system, very much like the system for which 
we hold hearings on the Cobell issue, I think the system is one 
that if I were a tribal leader trying to get something through 
it, I would say what on earth is going on. It just appears to 
be staggering incompetence.
    So can you in the next six months fix this so that we have 
something that is professional and something that we can look 
at and have our arms around and have some feeling that the 
tribes are going to be served in an appropriate way with 
respect to these applications?
    Mr. Artman. Yes, we can, sir. As I mentioned before, this 
is something that we started months ago, fixing this problem, 
focusing on the on-reservation issues and how we can fix the 
whole system, the whole process.
    We are on the precipice of releasing that information and 
coming up with something cohesive that we can put out to the 
public and to our staff, so they can see what the consistent 
guidelines are and move forward. I will be sending out letters 
to not only the employees, but also to tribal leaders letting 
them know what is going on.
    So within that six month time frame, beginning, if you want 
to start that clock today, soon hereafter you are going to 
begin to see those results. I think in six months we will have 
a very different picture of what is happening. I think you will 
see a much better picture.
    In terms of knowing the number of applications out there 
and exactly where they are, short of putting myself out there 
saying I will hand count them myself, we will have accurate 
numbers for you in some way, shape or form.
    The Chairman. Mr. Artman, one final point. I am going to 
submit a series of questions. I hope you can stay for just a 
bit.
    Mr. Artman. Of course.
    The Chairman. Senator McCain and I were enormously 
frustrated at previous hearings because after 17 years or so, 
there were no regulations that had been developed and put in 
place with respect to taking land into trust, with respect to 
off-reservation land for purposes of gaming. That is a very 
important issue. I am not a big fan of off-reservation gaming, 
but the fact is after all of these years there had been no 
regulations developed for that. We asked that there be 
regulations. We understand that they have been finalized. Can 
you tell us about that?
    Mr. Artman. Sure. A number of weeks ago we made the 
decision, after reviewing the regulations, after the comments, 
the proposed regulations after the comments, that if we went 
final on what we had, there would be no additional need for 
comment or consultation because the change wasn't great. So we 
have made that decision and now the regulations are making 
their way through the Department of Interior and will be sent 
over to OMB for review, and up to Capitol Hill for your review 
I believe in hopefully about 60 days.
    The Chairman. I will have additional questions, and if you 
would stay for a moment, I would appreciate that.
    Next, though, let's hear from Ron His Horse Is Thunder. Ron 
is the Tribal Chair for the Standing Rock Sioux Indian 
Reservation at Fort Yates, North Dakota. Mr. Chairman, thank 
you for coming to Washington, D.C. today. We appreciate your 
attendance. Your entire statement will be made a part of the 
record. We would encourage you to summarize. Thank you very 
much.

STATEMENT OF RON HIS HORSE IS THUNDER, CHAIRMAN, STANDING ROCK 
                          SIOUX TRIBE

    Mr. His Horse Is Thunder. Thank you, Mr. Chairman, for 
giving me the invitation to come today. I will summarize my 
statement.
    I am going to touch upon three of the issues of the five 
that we are concerned about in terms of backlogs. Those three 
issues are land-to-trust, appraisals and probates. In the land-
to-trust issue, the Standing Rock Sioux Tribe perspective on 
this, for the last 25 years we have had absolutely no 
applications pass through from fee to trust, absolutely none. 
The tribe itself has over 10 applications currently pending, 
for a total of 19,000 acres. That land we currently pay taxes 
on to the State of South Dakota. We shouldn't have to do that.
    There are no environmental concerns that we have been told 
about in terms of these lands. There have been no substantive 
objections by the county. These are agricultural lands. We 
already have a casino in North Dakota. We already have a casino 
in South Dakota. We are not asking for this land to build 
casinos on, so that is not an issue at all.
    So we are concerned about how long this application process 
takes, given that our tribe is in a position to buy additional 
land on our reservation.
    One of the real concerns for me, the tribe, although we 
don't like having to pay the taxes, we can pay the taxes. My 
real concern with this is there are individual tribal members 
who have bought lots, small acreage, and built houses or bought 
houses that were on fee land. They have had their applications 
in for just as long as the tribe. I know that a couple of our 
tribal members have lost their homes, have lost their land to 
tax foreclosure sales. I know that has happened. That is what 
really concerns me about this.
    So I think there is lots of opportunity for success for the 
Bureau of Indian Affairs. In terms of appraisals, speaking from 
experience on this, my mother has been for the last year and a 
half trying to consolidate some small acreages of land. I mean, 
that is the whole concern about Indian Country is 
fractionalization of lands. Standing Rock Sioux Tribe has the 
most fractionated interests of any tribe in this Country. In my 
mother's case and other cases of our tribal members, in terms 
of trying to consolidate their lands, it is a big issue for us.
    She has had her application in for over a year and a half. 
She recently asked me to check on it, and I said, Mom, they 
haven't even done the appraisals yet. She says, well, son, you 
are the Chairman. Can't you get something done? And I said, 
Mom, I can only push them so fast. They haven't even done the 
appraisal. They haven't even gone out to the land to do the 
appraisal, much less walked it.
    My own transfer of land, I transferred 40 acres for 40 
acres. It wasn't even a consolidation. I took 40 acres of my 
own land and traded for 40 acres of tribe land. It took me over 
a year to get that done, and I am the Chairman. Not that I have 
any special status over anybody else, but I can call the 
Superintendent on a daily basis. So that is a problem.
    Probates. Again, speaking from experience here, I talked to 
my mom on this. My grandfather passed away 10 years ago. It 
took over a year to get the probate done. My grandmother passed 
away about 16 years ago. It took over a year to get the probate 
done. What concerns me about this for tribal members is not 
only the time, but the places they have to go to hear the 
probates. My grandfather was enrolled at the Cheyenne River 
Reservation. They had to probate on Standing Rock, 105 miles 
away.
    My grandmother was enrolled in the Standing Rock Sioux 
Tribe. Her probate was heard on the Pine Ridge Indian 
Reservation, 300 miles away. When asked why they had to go to 
Pine Ridge when she was enrolled in Standing Rock, they said, 
well, if you want to wait a few more years, we will have it on 
Standing Rock.
    I have an elder who passed away about seven months ago. 
There is no hearing scheduled for that one as well.
    Now, there is a new concern for us, and that is that we 
used to have a Bismarck office for probates. They moved it to 
Rapid City a couple years back. Now, we are being told they are 
moving it to Billings, Montana. That is more than 500 miles 
away from my people. They have done this, this moving and 
closing of offices, without any consultation to the tribes, so 
that concerns us.
    Currently, Standing Rock Sioux Tribe has a backlog of 203 
probates officially, officially, according to the Office of 
Hearings and Appeals. But the Bureau of Indian Affairs itself 
tells us you can add another 100 onto the Standing Rock Sioux 
Tribe. In the Great Plains region alone, we have over 1,399 
cases that are pending at this point in time.
    What really exacerbates the problem is that the Bureau of 
Indian Affairs will no longer house wills made by our tribal 
members. That just creates a worse problem, especially if we 
are talking about consolidation of lands, et cetera, and 
backlog of cases.
    I see that my time is up, Senator. Thank you very much.
    [The prepared statement of Mr. His Horse Is Thunder 
follows:]

Prepared Statement of Ron His Horse Is Thunder, Chairman, Standing Rock 
                              Sioux Tribe
    My name is Ron His Horse is Thunder. I am Chairman of the Standing 
Rock Sioux Tribe of North and South Dakota. I want to thank the 
Committee for the opportunity to present testimony at this important 
hearing.
    The Standing Rock Sioux Tribe like many Tribes throughout the 
United States is suffering real and enduring damage from the failure of 
this Department of the Interior to do what it should do as a matter of 
course. The record of this hearing will reflect that throughout Indian 
county leases are not getting approved, Rights of Way are not being 
granted, land is not being taken into trust, estates are not being 
probated, and new trust lands are not being proclaimed as reservations. 
These individual failures represent the Department's inability to 
exercise the most basic of its trust responsibilities to Tribes and 
Indian people. This responsibility is most clearly defined in the 
Indian Reorganization Act. It is the promise of this Act, which serves 
as the foundation for today's self-determination policy, which is being 
severally undermined by the backlog and delays that the Committee will 
hear about today and which will be part of the record for this hearing.
    The Indian Reorganization Act (IRA) was one of the most important 
pieces of Indian legislation in American history. Based in considerable 
measure on the findings of the Meriam Report, the IRA altered the basic 
thrust of the allotment policy that immediately preceded it. Where the 
allotment policy sought to remove lands from the Indians, and destroy 
tribal life and institutions, the IRA sought to rebuild the 
reservations and the tribes, and to provide new opportunities for 
economic growth and self government on the reservations.
    As the Supreme Court observed in Duro v. Reina, 495 U.S. 676, 691 
(1990): ``[t]he 60 years preceding the Act [IRA] had witnessed a 
calculated policy favoring elimination of tribal institutions, sale of 
tribal lands, and assimilation of Indians as individuals into the 
dominant culture.'' Proposed initially by the Roosevelt Administration 
to change that sorry history, the IRA was personally supported by 
President Franklin D. Roosevelt as ``embod(ying) the basic and broad 
principles of the administration for a new standard of dealing between 
the Federal Government and its Indian wards.'' \1\ As the U.S. Supreme 
Court observed in Mescalero Apache Tribe v. Jones, 411 U..S.. 145, 152 
(1973), quoting H..R. Rep. No. 1804, 73rd Cong., 2d Sess. 1 (1934), the 
IRA was intended ``'to rehabilitate the Indian's economic life and to 
give him a chance to develop the initiative destroyed by a century of 
oppression and paternalism.''' The Court has also held that ``[t]he 
overriding purpose of. ..[the IRA] was to establish machinery whereby 
Indian tribes would be able to assume a greater degree of self-
government, both politically and economically.'' Morton v. Mancari, 417 
U.S. 535, 542 (1974).
---------------------------------------------------------------------------
    \1\ Letter to Honorable Burton K. Wheeler, April 28, 1934, Sen. 
Rep. No. 1080, 73rd Cong. 2d Sess. 3 (1934).
---------------------------------------------------------------------------
    During the consideration of this Act, Representative Howard of 
Nebraska, Chairman of the House Indian Affairs Committee pointed out, a 
chief cause of the decline suffered by the Indians had been the policy 
of the General Allotment Act. Accordingly, the chief purpose of the IRA 
was to eradicate the effect of that Act. To reverse the allotment 
policy and permit the rebuilding of tribal land holdings, the IRA 
contains what remains today the principal statute authorizing the 
Secretary to acquire lands in trust for a tribe or individual Indian, 
Section 5 of the Indian Reorganization Act (IRA), 25 U.S.C. 465.
    Through the past six decades, both Republican and Democratic 
Administrations have used Section 465 to further the purposes of the 
IRA to benefit Indian tribes and individual Indians. Unfortunately, we 
have now encountered a Department that for reasons that have yet to be 
explained to me has determined that it will no longer move forward with 
the policy of the IRA. A fear held by some in Indian country is that 
the Department has determined that any action that it is asked to take 
for the benefit of tribes or Indian people must first be weighed 
against other concerns unrelated and in some instances completely 
contrary to the interest of Tribes. I have heard repeatedly that the 
decisions before the Department must balanced against other 
considerations. All too often these ``other considerations'' prevail 
and the interests of the tribes remain unfulfilled. This balancing 
process has paralyzed the Department's exercise of its trust 
responsibility .
    The balancing makes me ask the following question. Has the 
Department concluded that the United States has fulfilled its mandate 
under the IRA and that the Department believes it no longer has an over 
arching responsibility to improve the status and conditions of Indian 
country? To be clear, the mandate has not been met at Standing Rock. 
Nor has it been met on most Reservations. As you well know, the health 
and social conditions and needs on my Reservation and many throughout 
Indian country are staggering. If the Department is failing Indian 
tribes with regard to trust acquisitions, probate and land appraisals--
work it has been doing for over 150 years, how can Tribes trust the 
Department to work with us to solve the problems that tribes face in 
the 21st Century. I will address the two primary topics of to day's 
hearing.
1. Land Into Trust
    The most basic promise of land restoration has not been fulfilled 
by the IRA. As a result of the allotment policy, at Standing Rock we 
lost more than one million acres of land to non-Indian allotment. 
Today, the Tribe retains trust title to only 300,000 acres of our 
original 2.3 million acre reservation. Our tribal members hold 
approximately another 500,000 acres of land in trust allotments. The 
remainder of our reservation is held in fee.
    In the last 25 years, no lands at Standing Rock have been taken 
into trust for the benefit of the Tribe. Today at Standing Rock we have 
ten applications for land to be taken into trust for the benefit of the 
Tribe, totaling just over 19,000 acres of land. Some of these 
applications have been pending since 1992. These applications concern 
lands that were once reserved for the Tribe's exclusive use. Most of 
this land is intended to enhance the Tribe's agricultural and livestock 
programs. There are no environmental concerns and no substantive 
objections from any party. These are the exact type of the lands that 
under the Indian Reorganization Act, the Department should be returning 
to trust as a matter of regular course. Yet, it has not happened.
2. Probate
    Another fundamental area where the Department's inexplicable delays 
cause both economic and emotional hardship is in the area of probate. 
How can Tribes and families properly manage their realty if it is stuck 
in prolonged probate and sitting idle?
    While the United States has been probating Indian trust estates for 
many years, it seems that with each passing year and with each new 
Department initiative, the process gets worse. Indian families, who 
wish nothing more than to bring closure to the death of their loved 
one, do not get closure. What they get are delays, excuses, and on-
going frustration. Allotted Tribal lands, that could be leased out for 
grazing or agriculture, or other productive uses, sit idle, and 
generate no income to the Indian family.
    The Bureau's probate regulations require Federal officials to 
perform four tasks: (1) find out about a Native person's death; (2) 
prepare a probate package; (3) refer the completed package to the 
Office of Hearing and Appeals; and (4) require a ``deciding official'' 
to determine how to distribute the property and/or funds deposited in 
an Individual Indian Money account and make the distribution. 25 CFR 
Part 15.4.
    Sounds pretty straight forward. In reality, it is a nightmare. At 
Standing Rock, we are informed by Bureau officials that there is a 
backlog of 203 probate cases awaiting resolution. In the Great Plains 
Region, we are told the probate backlog stands at 1,399 (one thousand 
three hundred ninety-nine). Standing Rock Agency officials have 
informed our Tribe that the Office of Hearing and Appeals does not want 
to receive any more probate applications because of their current 
backlog. Tribal officials have stated that there are an additional 100 
probate cases to add to the 203.
    What I do not understand is the lack of notice to the Tribal 
family. Families wait years for resolution, with no certainty that 
anyone at the Bureau is actively working on the probate package and 
referring it to OHA, or that an OHA deciding official is actively 
reviewing the file.
    The Secretary of the Interior's duties are to probate trust or 
restricted property held in the estate of an Indian decedent. I hear so 
much about the Federal Government's trust responsibility to the Indian 
people. But as Chairman, I so seldom see it practiced.
    To make matters worse, Bureau officials announced several years ago 
that their offices could no longer be the repository for the wills of 
Tribal members and that individuals would have to make other 
arrangements for the safekeeping of their wills. One of the required 
elements of the probate package which the regulations require to be 
provided to the Bureau includes ``all originals or copies of wills and 
codicils, and any revocations.'' 25 CFR 15.104(8). The trustee's action 
has the effect of making their own job more difficult by refusing to be 
the repository for the decedent's last will and testament.
    The Great Plains Tribal Chairman's Association learned last week 
from Bureau officials at the Rapid City OHA office that they have been 
instructed to close that facility and move to Billings, Montana. 
Billings, Montana is about 430 miles from our Administration offices at 
Fort Yates. The Tribal Chairman's Association passed a resolution 
objecting to the move, a decision made without Tribal consultation. We 
fear that the Department does not understand that the changes it makes 
to achieve some perceived notion of efficiency and streamlining, in 
fact achieve the opposite result of unnecessary delays and added costs 
to Indian people and the Tribe.
    Instead of closing offices and moving staff, the Bureau should 
devote its resources to help Tribal families establish life estates and 
family trusts that avoid the need for probate. The Bureau should assist 
Indians to purchase fractionated interests so that trust or allotted 
lands are put to use and generate income for Indian families. Rather 
than helping to solve chronic problems that plague our reservations 
through innovative and creative solutions, the Bureau perpetuates 
problems and contributes to the common view in Indian country that the 
system is broken, and the common lament that no one should bother 
trying to fix it, because no one really cares.
    I would like to thank the Committee again for the opportunity to 
testify and would be happy to answer any questions that you may have.

    The Chairman. Mr. Chairman, thank you very much for your 
testimony. We appreciate hearing from you today.
    Next, we will hear from the Honorable William Rhodes, 
Governor of the Gila River Indian Community in Sacaton, 
Arizona.
    Chairman Rhodes, thank you.

  STATEMENT OF WILLIAM R. RHODES, GOVERNOR, GILA RIVER INDIAN 
                           COMMUNITY

    Mr. Rhodes. Thank you, Chairman Dorgan and other Committee 
members for the opportunity to testify regarding the impact of 
BIA delays on tribal economic development.
    The Gila River Indian Community is the largest Indian 
community in the Phoenix metropolitan area, with enrolled 
population of over 19,000. Over the years, the community has 
experienced BIA delays in a number of areas that have 
detrimentally impacted the community's economic development 
initiatives. Of particular concern, the community has 
experienced significant delays in obtaining BIA approvals of 
leases of tribal land. The community's reservation is located 
in the very rapidly growing Phoenix metropolitan region, and in 
many instances its tribal business ventures compete with non-
commercial entities that are sometimes literally across the 
street from the reservations.
    When the community faces bureaucratic challenges at BIA 
that affect the operation of its tribal business ventures, it 
puts the tribe at a disadvantage compared to the entities not 
subject to BIA leasing oversight. Specifically, the community 
is concerned with the BIA's imposition of unnecessary 
regulatory burdens in the review and approval of commercial 
leases of space within the existing tribal buildings. BIA's 
position evidences a clear lack of understanding of the 
competitive and time-sensitive commercial leasing market in 
which the community seeks to compete for tenants.
    The community has also encountered problems associated with 
the BIA's failure to properly document rights of ways 
throughout the reservation, which have impacted the community's 
business agreements and land management planning. Additionally, 
the community has experienced BIA delays regarding approvals of 
leases associated with the community's land acquisition process 
such as the community's efforts to acquire allotted lands 
within the reservation are frustrated.
    The community has been in protracted discussions with the 
BIA lasting over a year regarding a master lease between the 
community and the wholly owned governmental department 
authority created by the community to develop a large land 
parcel. Each month the master lease remains pending at BIA, the 
development authority cannot sublease the land under the master 
lease, and a proposed business park and retail development has 
no tenants.
    The community is concerned that the BIA has taken the 
position on the master lease that the community must conduct an 
environmental impact statement for all the land under the 
master lease. The community has already conducted the necessary 
environmental assessments for a majority of the land that would 
be subleased under the master lease, and the EIS would take 
more than 18 months to complete, given the BIA's delays on EIS 
review as well.
    It is hard for the community to understand why the BIA 
would impose these additional requirements on a simple ground 
lease between the two entities, especially when the community 
has already conducted EA's for the land to be developed under 
the master lease. Moreover, the community is concerned with the 
overly bureaucratic position taken by the BIA with regard to 
the agency's responsibility to review and approve commercial 
leases of space within already existing buildings. As an 
example, the community has built a corporate center, which you 
viewed earlier at the beginning of the session, for the 
authority to lease office space to third party tenants, to draw 
the potential business partners and raise lease revenue.
    At first, the existing office building parcel was contained 
under a master lease pending at BIA. Then the community revised 
the master lease to remove the office building to expedite 
leasing of the office space. However, since then, BIA has 
sought to employ the regulation at 25 CFR Part 162 for the 
commercial leases of office space. These regulations are 
designed to protect tribes and allottees from onerous land 
deals. BIA is using these regulations to impose a variety of 
requirements, including mortgage-related and lease value 
requirements, that appear to us to be unrelated to an office 
building and leasing of commercial office space.
    In an era when tribes are directly competing with non-
Indian off-reservation businesses and developments for 
commercial tenants and developments, these regulations and 
regulatory burdens imposed by the BIA place Indian tribes at a 
serious disadvantage with non-Indian competitors. With respect 
to this office building, office space has stood empty for too 
long.
    A solution is for BIA to work with us as a proactive 
partner, as we do with all our other business partners, by 
taking the time to understand our short- and long-term economic 
goals. BIA should be working with us to ensure a streamlined 
lease review process that more accurately reflects the lease 
market in which we operate that avoids delays based on 
unnecessary regulatory barriers.
    My time is up, Senator. Thank you.
    [The prepared statement of Mr. Rhodes follows:]

 Prepared Statement of William R. Rhodes, Governor, Gila River Indian 
                               Community
Introduction
    I am Governor William Rhodes of the Gila River Indian Community 
(the ``Community''). On behalf of the Community, I want to thank you, 
Chairman Dorgan and other distinguished Members of the Committee for 
this opportunity to submit written testimony on the impact of Bureau of 
Indian Affairs (BIA) administrative delays on tribal economic 
development.
    By way of introduction, the Gila River Indian Community was 
formally established by Executive Order in 1859. The Community was 
thereafter expanded several times and currently encompasses 
approximately 375,000 acres. The Community is comprised of the Akimel 
O'odham (Pima) and the Pee Posh (Maricopa) people. We are the largest 
Indian Community in the Phoenix metropolitan area, with an enrolled 
population of over 19,000. We have a long history in the Phoenix 
Valley, dating back thousands of years.
    Over the years, the Community has experienced BIA delays in a 
number of areas that have detrimentally impacted the Community's 
economic development initiatives. Of particular concern to this 
hearing, the Community has experienced significant delays in obtaining 
BIA approvals of leases of tribal land. These delays result in lost 
economic opportunities to the Community in situations in which 
potential development or tenant deals are never culminated and in which 
the Community does not realize lease revenues for months while lease 
agreements are pending BIA approval. It is important at the outset for 
the Committee to note that the Community's reservation is located in 
the very rapidly growing Phoenix metropolitan region and, in many 
instances, its tribal business ventures compete with non-Indian 
commercial entities that are sometimes literally located across the 
street from the reservation. Therefore, when the Community faces 
bureaucratic challenges at BIA that affect the operation of its tribal 
business ventures, it puts the tribe at a competitive disadvantage 
compared to entities not subject to BIA leasing oversight. Although the 
Department of Interior is supposed to support the policy of tribal 
economic development, our competitors only gain from the BIA lease 
approval delays we experience.
    As described below, the Community is particularly concerned with 
the BIA's imposition of unnecessary regulatory burdens in the review 
and approval of commercial leases of space within existing tribal 
buildings--bureaucratically-created, anachronistic burdens that 
evidence a clear lack of understanding of the competitive and time-
sensitive commercial leasing market in which the Community seeks to 
compete for tenants. The Community has also encountered problems 
associated with the BIA's failure to properly document rights-of-way 
throughout the Gila River Indian Reservation which have impacted the 
Community's business agreements and land management planning. 
Additionally, the Community has experienced considerable BIA delays in 
relation to approval of appraisals associated with the Community's land 
acquisition process, such that the Community's efforts to acquire 
allotted lands within the Community's Reservation are frustrated.
    This testimony focuses on specific areas where the Community has 
seen firsthand the impact of BIA delays on its tribal economic 
development. This testimony also proposes some short-term and long-term 
solutions for addressing the issues identified. These delays, as 
described below, impact delivery of a variety of BIA services to the 
Community to such an extent that the quality of the trust relationship 
between BIA and the Community is being negatively affected.
I. BIA Review of Commercial Leases
A. Master Ground Lease Approval Delays
    The Community has suffered from the ramifications of BIA delays 
with respect to its commercial leases on a number of occasions. As an 
illustrative example, the Community has been in protracted discussions 
with the BIA lasting over a year now regarding a Master Lease between 
the Community and a wholly owned governmental Development Authority 
created by the Community to develop a 2,400 acre parcel. The Master 
Lease is a ground lease for development of a parcel of land that will 
allow the Development Authority to sublease land to tenants for an 
industrial park and retail establishments, among other uses. Each month 
the Master Lease remains pending at BIA, the Development Authority 
cannot sublease the land under the Master Lease and a proposed business 
park and retail development have no tenants.
    The Master Lease is valuable to the Community and the Development 
Authority because it will help attract non-Indian business tenants and 
potential business partners to the reservation and generate significant 
lease revenues. Unfortunately, the Master Lease approval process has 
been pending over a year and has become mired in unnecessary 
bureaucratic delay that is impacting the Community's economic 
development plans. The Community is particularly concerned that the BIA 
has taken the position on the Master Lease that the Community must 
conduct an Environmental Impact Statement (EIS) for all the land under 
the Master Lease. The Community has already conducted the necessary 
Environmental Assessments (EAs) for a majority of the land that would 
be subleased under the Master Lease and the EIS will take more than 18 
months to complete given the BIA's delays on EIS review as well.
    It is hard for the Community to fathom why the BIA would impose 
this additional requirement on a simple ground lease between two tribal 
entities, especially when the Community has already conducted EAs for 
the land to be developed under the Master Lease. Because the BIA has 
held up approval of the Master Lease for so long, the Community has had 
to restructure several tribal commercial projects within the proposed 
lease to avoid significant delays and escalating project costs, and may 
have to ultimately restructure its long-term development plans for 
these parcels to avoid unnecessary delays.
B. Office Suite Leases
    Moreover, the Community is increasingly concerned with the overly 
bureaucratic positions taken by the BIA with regard to the agency's 
responsibility to review and approve commercial leases of space within 
already existing buildings. BIA has sought to employ the regulations at 
25 CFR Part 162 in reviewing commercial leases of office space. These 
regulations are designed to protect tribes and allottees from onerous 
land deals. BIA is using these regulations to impose a variety of 
requirements, including mortgage-related and lease value requirements, 
that appear to us to be unrelated to an office building and leasing of 
commercial office space. Mortgage insurance related requirements have 
no bearing on a tribally financed office building that is not carrying 
bank mortgage.
    As one example, the Community constructed a corporate office 
building on reservation that was sited on land originally included in 
the Master Lease pending review at BIA, discussed above. Due to the 
significant delays being experienced at BIA regarding approval of that 
Master Lease, the Community restructured the scope of the Master Lease 
to exclude the parcel on which the commercial office space is located 
in the interest of expediting the Community's ability to lease out that 
office space separate from the Master Lease. Subsequently, BIA took the 
position that the commercial space within that building was subject to 
a variety of BIA lease approval requirements including mortgage related 
requirements. The Community views the BIA's perceived responsibility to 
review and approve commercial leases of space within existing buildings 
to be an anachronistic throw-back to the days of the Indian agent.
    The Community, like many Indian tribes across the country, no 
longer needs the safety net of having the BIA review and approve 
commercial leases and ground leases of Community lands--including 
leases of individual office suites. The Community has employed or 
engaged highly trained professionals to represent its interests in 
development deals and has successfully negotiated a wide range of 
commercial transactions without the need for Federal bureaucrats to 
look over the Community's shoulder and micromanage individual office 
suite leases. These BIA regulations serve as a significant impediment 
to the successful negotiation and execution of commercial leases in 
today's business climate. In an era where Indian tribes are directly 
competing with non-Indian (off-reservation) businesses and developments 
for commercial tenants and developments, these regulations and the 
regulatory burdens imposed by the BIA place Indian tribes at a serious 
disadvantage with non-Indian competitors. We do not understand the 
BIA's rationale for requiring an EIS for our Master Lease and its 
overly bureaucratic approach to the Community's efforts to lease office 
space within an existing office building. With respect to the office 
building discussed above, the Community has been forced to find 
Community entities to begin to fill the office space, and its efforts 
to find third-party tenants has been delayed and hindered.
    The ironic thing about BIA's current posture is that in the past 
they have allowed lease terms that were unfavorable to the Community, 
particularly in the Community's industrial parks where the BIA allowed 
long term leases (60+ years) with poor economic terms, and with 
industrial tenants who are engaged in noxious activities, including 
bio-hazard wastes, solvent recycling, munitions testing, which have 
caused significant environmental harm to the Community. It seems 
untenable to us that now, when a large portion of a commercial office 
building space remains empty, the BIA would start to raise a variety of 
unrelated lease requirements that hinder our ability to lease out the 
space.
    Proposed Solution: With regard to the BIA delays on lease reviews, 
the solution is for BIA to work with us a pro-active partner, as we do 
with all of our other business partners. By taking the time to 
understand our short and long term economic goals, BIA should be 
working with us to ensure a streamlined lease review process that more 
accurately reflects the lease market in which we operate and that 
avoids delay based on arbitrary, unjustified and unnecessary regulatory 
barriers. The other solution is to grant tribes the authority to review 
and approve ground leases in their governmental capacity and for BIA to 
facilitate, through technical assistance or other means, increased 
tribal responsibility for lease approvals.
II. BIA Documentation of Rights-of-Way
    Another area of continuing concern is the failure of the BIA to 
properly document rights-of-way throughout the Gila River Indian 
Reservation. By way of example, the Community has established the Gila 
River Indian Community Utility Authority (GRICUA) to provide electrical 
service throughout the Reservation. Currently, GRICUA serves a small 
number of residential customers and a growing number of commercial 
customers on the reservation. The San Carlos Irrigation Project (SCIP) 
serves the vast majority of customers, residential and commercial, on 
the reservation. In its efforts to analyze the SCIP facilities, GRICUA 
has made repeated requests for information related to the condition of 
SCIP facilities on the Reservation without success. Moreover, it is 
unclear whether the BIA or SCIP have properly recorded rights-of-way 
underlying the SCIP electric and irrigation systems throughout the 
Reservation. This became a serious concern when the Community and 
GRICUA analyzed whether to submit a proposal in response to the 
currently pending FAIR Act solicitation where BIA intends to privatize 
SCIP irrigation and electric operations. Without proper rights-of-way 
across tribal and allotted lands, any operator of the SCIP system could 
be in an immediate trespass situation. To date, SCIP and BIA have not 
provided any of the requested information to assist the Community and 
GRICUA in evaluating the on-reservation SCIP system rights of way.
    Proposed Solution: BIA needs to act as a trustee in assisting the 
Community with resolving rights of way issues in the manner necessary 
for the Community to be able to proceed with its land management and 
development plans and to react in a timely manner to the rapid and 
pressing development occurring along reservation borders. We understand 
the Committee may be considering a hearing on Rights of Way issues in 
Indian Country. The Community would be very interested in testifying at 
such a hearing and proposing at that time some solutions to these over-
arching issues affecting Indian Country.
III. BIA Preparation of Appraisals for Land Acquisition Purposes
    In addition to BIA delays associated with commercial leases and 
rights-of-ways, the Community has also seen BIA delays in connection 
with its land acquisition efforts. Gila River Indian Community was 
chosen as one of the first tribes to participate in the Department of 
Interior's Indian Land Consolidation pilot project. The Community was 
chosen because of the very high rate of fractionated land within the 
Reservation. After 3 years under the ILCA pilot project, the Department 
pulled out of land consolidation efforts at the Community, citing the 
high cost of acquiring land in the Phoenix region. Since being removed 
from the ILCA pilot project, the Community has established its own land 
consolidation program, but has encountered roadblocks in its self-
funded effort posed by BIA delays in issuing land value appraisals. As 
a result, despite the Department's keen interest in assisting tribes 
with consolidating their fractionated land base and the fact that the 
Community is now self-financing the entire land acquisition program, 
BIA delays are again frustrating an important policy and economic 
development objective of the Department and the Community.
A. Land Acquisition Process
    On April 19, 2006, the Gila River Indian Community Council (the 
``Community Council'') approved GR-51-06 which enacted the Community's 
Land Acquisition Policy (the ``Policy''). The Policy outlines a process 
through which the Community may acquire whole allotments of land within 
the Reservation owned by Community members or other Indians to prevent 
the transfer of allotted land within the Reservation to fee status, so 
that such land is preserved as Federal Indian trust land. Under the 
Policy, the Community may also consider land exchanges at the request 
of a landowner. Prior to the enactment of the Policy, the Community 
Council enacted GR-184-04 which established a Land Acquisition Trust 
Fund (the ``Fund'') to be used for Community land purchases intended 
for governmental use and purposes and for costs and expenses associated 
with land acquisitions. The Community Council appropriated millions of 
dollars to the fund as an initial capital appropriation to the Fund. 
The Community Council may make subsequent transfers to the Fund as 
deemed appropriate.
    Briefly, the process for land acquisition under the Policy is as 
follows:

        (1) upon receipt of a Landowner's completed application, BIA 
        forwards the application to the Executive Office, who then 
        transmits the application to the Law Office and the Department 
        of Land Use Planning and Zoning (LUPZ);

        (2) the Law Office acknowledges receipt of the application and 
        requests an appraisal, title status report, and survey from the 
        BIA and the U.S. Department of Interior's Office of the Special 
        Trustee (OST);

        (3) pursuant to the Policy, LUPZ gathers data about the 
        allotment which will form the basis for a Report and 
        Recommendation for Purchase to the Community Council;

        (4) upon a Landowner's receipt of appraisal from BIA, the Law 
        Office and LUPZ staff meet with the Landowner to obtain a copy 
        of the appraisal;

        (5) LUPZ and Law Office arrange to inform the districts and the 
        Community's Planning and Zoning Commission of the potential 
        land purchase at their respective regularly scheduled meetings; 
        and

        (6) the Law Office and LUPZ prepare a Report and Recommendation 
        and sale documents for Natural Resources Standing Committee and 
        the Community Council for its consideration and approval.

B. BIA Delays with Appraisals
    The Department of Interior's Office of the Special Trustee (OST), 
Office of Appraisal Services (OAS) prepares all of the appraisals of 
the allotments to be considered for purchase by the Community. 
Initially, the Community was informed by BIA that appraisals would be 
completed in ninety (90) days. However, it became apparent in late 
summer 2006 that in several cases, the ninety (90) day period was not 
being met. On August 25, 2006, LUPZ and Law Office staff met with the 
BIA Superintendent to discuss how the appraisal process could be 
expedited.
    At that time, the Community was assured by BIA that appraisals 
would be completed three (3) weeks after receipt of the request from 
the BIA. To their credit, the BIA also has made some changes in 
staffing to accommodate the requests they are receiving from 
Landowners. Despite their good intentions, however, only a handful of 
Landowners have received appraisals.
    As a followup to the August 25, 2006 meeting, in December 2006, 
representatives from LUPZ and the Law Office met with Pima Agency, OAS 
and the Deputy Director, Appraisal Branch, BIA, to discuss utilizing 
market analyses in lieu of appraisals for purchase of fractionated 
interests of land only. It was understood at that time that OAS would 
be hiring a contractor to perform the market analyses, and that the 
Community would not be receiving market analyses until after March 
2007. However, the Community has not yet received a market analysis in 
lieu of an appraisal.
    The Community's June 2007 review of appraisals received revealed 
that about 18 landowners received appraisals completed by OAS. The 
Community's review also indicated that of the 18 landowners that 
received appraisals, 15 landowners contacted the Community to proceed 
with possible land purchases. Furthermore, the same review also 
revealed that the longest and shortest amounts of time from the 
Community's written request to landowner receipt of appraisal was 
approximately sixteen (16) and seven (7) months, respectively.
    Seven to sixteen months is an inordinately lengthy amount of time 
to complete appraisals in a rapidly changing market, and the amount of 
time taken to receive an appraisal is the single activity that takes 
the most time to complete in the Community's land acquisition process.
C. BIA Miscommunication to Landowners
    In June 2007, it came to the Community's attention that Pima Agency 
was informing allottees that the Community lacked funds to purchase 
land under the Policy. Pima Agency's misstatements appear to stem from 
its misunderstanding regarding completed appraisals and their effect, 
if any, on the Fund and the Community's ability to purchase land under 
the Policy. Pima Agency requested the Community to provide a resolution 
stating that ``GRIC is interested in purchasing the remaining 
landowner's interests and that funding is available for further 
acquisitions.'' Apparently, Pima Agency's request seemed to imply that 
the approximate total dollar value of land appraised at that time, $14 
Million Dollars, exceeded the Community's initial appropriation to the 
Fund, which Pima Agency believed rendered the Community financially 
incapable of purchasing land under the Policy. Based on this 
misunderstanding, Pima Agency was not processing the Community's 
requests for appraisals. For several reasons, Pima Agency's assumptions 
and conclusions were incorrect, and the Community responded to Pima 
Agency by letter dated June 25, 2007.
D. BIA Use of Purchase Agreement and Delay of Closing
    Prior to the Community's enactment of the Policy, the Community 
purchased allotted land using a Purchase Agreement to which BIA was a 
party and signatory. The Purchase Agreement was utilized by the 
Community, BIA and a landowner in spring 2006 when the Community 
purchased ten (10) acres. Based on precedent, and after the enactment 
of the Policy, in January 2007, the Community utilized the same 
Purchase Agreement when concluding the purchase of twenty (20) acres. 
Abruptly and without notice, and despite being fully aware in advance 
that the Community would be purchasing the twenty acres, BIA declared 
that it could not be a party to the Purchase Agreement. BIA's abrupt 
change of position was not communicated to nor anticipated by the 
Community, and resulted in a two (2) month delay in concluding the 
purchase while the Community and Pima Agency developed a mutually 
acceptable procedure for concluding future land purchases that did not 
include BIA as a party to Purchase Agreements.
E. Landowners' Applications for Sale of Land
    Until approximately 2 weeks ago, when the Community received notice 
from the BIA that a landowner wanted to sell land to the Community, BIA 
would inform the Community by letter of a landowners' interest to sell, 
and included a copy of the completed land sale application and an 
allotment sheet describing all of a landowner's interests. Recently, 
the Community received only cover letters and allotment sheets, but not 
landowners' applications. Believing the lack of applications was an 
oversight, the Community telephoned Pima Agency, requesting the missing 
applications. Pima Agency informed the Community that BIA would no 
longer be providing the Community with landowners' applications for 
sale of land, citing privacy concerns.
    Prior to not receiving the applications, the Community was not made 
aware of BIA's decision to not provide the Community with copies of the 
applications. While BIA's concerns may have some merit, the landowners' 
applications are the only documents the Community will have that are 
completed by the landowners themselves and in which they indicate the 
allotments or portions thereof that they want to sell to the Community. 
As a buyer in a negotiated sale, it is completely reasonable for the 
Community to have a copy of the landowners' applications to verify 
exactly what land the landowners have an interest in and what they want 
to sell. Arguably, by completing an application for sale of their land 
to the Community, the landowners have provided implied consent to 
providing the necessary information to the Community. And, if there is 
personal information contained in the applications that BIA or 
landowners do not want to be disclosed and that is not necessary to 
proceed with the sale, such information can be redacted. The Community 
is preparing a formal request to Pima Agency to provide copies of the 
landowners' applications.
    Proposed Solution: As discussed above, BIA needs to work as a 
partner with the Community and better understand the Community's long 
term goals, rather than presenting obstacles to the Community's land 
acquisition efforts. By spreading inaccurate information about the 
Community's ability to purchase interest in land, failing to keep the 
Community informed about landowner purchase applications, and by 
abruptly making changes in land acquisition policy at BIA, the BIA has 
impeded rather than assisted the Community's important land acquisition 
goals. As a specific matter, BIA could assist the Community by 
facilitating the preparation of market analyses in lieu of appraisals 
for purchase of fractionated interests in land, which worked well when 
the Community was an active participant in the ILCA program and would 
avoid the BIA appraisal delay issue. Unfortunately, the Community has 
made this request but has yet to receive a market analysis in lieu of 
an appraisal.
Conclusion
    This testimony has attempted to provide the Committee with several 
examples of areas in which the Community has experienced shifting and 
overly bureaucratic policies of the BIA that have negatively affected 
the Community's economic development planning. We believe this story 
speaks more largely, however, to a breakdown in the trustee's 
relationship with tribes as BIA moves from helping to facilitate tribal 
initiatives to instead posing as an obstacle to tribal development 
objectives. The Community spends more personnel time in interaction 
with BIA, often confrontational, than it spends with any other entity 
with which it conducts business. Some proposed immediate solutions have 
been included above. However, longer term solutions must include 
providing tribes a larger and more active role in controlling their 
land base and providing for governmental approvals in use of tribal 
lands. We understand that it is no solution to simply complain about 
our relationship with BIA--that would be too easy. Instead, we look 
forward to working with Committee staff on a longer-term initiative to 
develop ideas to address these important issues, including the 
development of legislation and policies that facilitate the broader 
goal of sovereignty for tribes that keeps pace with tribal economic 
development goals and the competing development surrounding tribal 
lands.
    Thank you, distinguished Members of the Committee, and we stand 
ready to answer any additional questions you may have about this 
testimony or to supply any additional information for the written 
record.

    The Chairman. Governor Rhodes, thank you very much. Again, 
we appreciate your traveling to Washington, D.C. to provide the 
testimony.
    Next, we will hear from Frank Bigelow, Supervisor of the 
Madera County Board of Supervisors, Madera, California.
    Mr. Bigelow, thank you very much.

STATEMENT OF FRANK BIGELOW, SUPERVISOR, MADERA COUNTY BOARD OF 
                          SUPERVISORS

    Mr. Bigelow. Mr. Chairman, thank you very much. Ms. Vice 
Chairman, thank you very much also, and all distinguished 
members. I appreciate the opportunity to be here today to tell 
you how my community has been affected by the Department of 
Interior's nine month delay in publishing a notice of 
availability of a draft environmental impact statement, better 
known as EIS, for tribal projects in my county.
    My name is Frank Bigelow, as the Chairman said, and I have 
served on the Board of Supervisors for the past nine years. I 
am pleased to be here today with Jacquie Davis-Van Huss, Tribal 
Chairperson of the North Fork Rancheria. On behalf of the 
county, I have worked closely with Ms. Jacquie and other tribal 
officials in connection with the tribe's efforts to have land 
taken into trust for tribal economic development such as those 
Chairman Dorgan outlined earlier, as well as other 
opportunities, which does include a gaming facility just 
outside the City of Madera.
    The County of Madera, the city and the Chambers of Commerce 
all strongly support this project. As you know, the taking of 
lands into trust for tribal economic growth is a major Federal 
action under NEPA. As such, the Department of Interior must 
comply with NEPA. As an elected official, I believe that a key 
aspect of NEPA is that the lead agency here, the Department of 
Interior, solicits and receives meaningful public input and 
comments on the proposed project in order for it to adequately 
assess the project's impacts on the environment.
    The NEPA process allows impacted communities such as mine 
an opportunity to formally comment on a proposed project. Since 
the beginning stages of this project, we have been an active 
participant in the project. In fact, the City of Madera and the 
Madera Irrigation District are cooperating agencies for the EIS 
under NEPA.
    We work closely with the tribe to ensure that all community 
concerns are addressed. The NEPA process facilitates the 
cooperation. We have benefitted from the process and we want it 
to continue. We have also invested time and resources in this 
process. However, the process has stopped and we do not know 
why.
    Please, let me summarize the work that has gone into the 
preparation of the draft EIS for this project. Three years ago, 
the Bureau of Indian Affairs began preparing the draft EIS to 
examine the environmental impacts of the proposed project and 
various alternatives. The proposed project is located on a 
parcel which the tribe had earlier identified in cooperation 
with the county and community representatives. The county 
considers the location ideal from an environmental and economic 
and land use perspective, and thus in August, 2004 entered into 
a comprehensive MOU with the tribe to mitigate any possible 
impacts the project may have on the county.
    Two months later, in October 2004, the BIA published a 
notice of intent to prepare an EIS for the project. The BIA 
then conducted a public hearing on the scoping process several 
weeks later, and eventually published the scoping report in 
July, 2005. We participated in those hearings and were 
satisfied with the scoping report.
    The BIA then worked diligently to prepare and distribute 
numerous administrative drafts of the EIS. In March, 2006, the 
BIA sent an administrative draft EIS for review and comment to 
each of the five cooperating agencies, including the City of 
Madera, Madera Irrigation, two local jurisdictions, to 
determine that the administrative draft provided more than 
enough information to use as a basis for negotiating their own 
separate mitigation agreements with the tribe. In October, 
2006, the city entered into an MOU with the tribe, followed by 
the Madera Irrigation District two months later. This shows the 
ability of our community to recognize the need for this 
facility.
    I understand that the draft EIS was completed on February 
2, and that it was ready for distribution to the public. It is 
also my understanding that the draft EIS cannot be made public 
until there is a formal notice of availability of the draft EIS 
published in the Federal Register.
    Unfortunately, the notice of availability has not yet been 
published, even though the draft was completed over nine months 
ago.
    Let me stress that publication of the notice of 
availability in the Federal Register is not a decision on the 
merits of the tribe's project. It is simply a public notice of 
the draft EIS's availability for review and comment.
    All levels of government have expended taxpayer money, Mr. 
Chairman, in this process for review, to allow the public to 
have an opportunity to review this project and comment on it. 
We are not getting that luxury afforded to us. We need that. We 
are asking. We are a community that is willing to embrace this 
opportunity. Please, as a Committee, review this process and 
give us some relief from the inaction from the BIA.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Bigelow follows:]

Prepared Statement of Frank Bigelow, Supervisor, Madera County Board of 
                              Supervisors
    Chairman Dorgan, distinguished members of the Committee, I 
appreciate the opportunity to be here today and to tell you how my 
community has been affected by the Department of the Interior's 9-month 
delay in publishing a notice of availability of a draft environmental 
impact statement (``EIS'') for a tribal project in my county.
    My name is Frank Bigelow and I have served on the Madera County 
Board of Supervisors for the past 9 years. I am pleased to be here with 
Jacquie Davis-Van Huss, Tribal Chairperson of the North Fork Rancheria. 
On behalf of the County, I have worked closely with Jacquie and other 
tribal officials in connection with the Tribe's efforts to have land 
taken into trust for a tribal gaming facility just outside of the city 
of Madera. The County of Madera, the City, and the Chambers of Commerce 
all strongly support this project.
    As you know, the taking of lands into trust for a tribal gaming 
facility, is a major Federal action under NEPA--the National 
Environmental Policy Act. As such, the Department of the Interior must 
comply with NEPA. As an elected County official, I believe that a key 
aspect of NEPA is that the lead agency--here the Department of the 
Interior--solicits and receives meaningful public input and comment on 
a proposed project in order for it to adequately assess the project's 
impact on the environment.
    The NEPA process allows impacted communities, such as mine, an 
opportunity to formally comment on a proposed project. Since the 
beginning stages of this project, we have been an active participant in 
this project--in fact, the city of Madera and the Madera Irrigation 
District are cooperating agencies for the EIS under NEPA. We have 
worked closely with the Tribe to ensure that all community concerns are 
addressed. The NEPA process facilitates this cooperation. We have 
benefited from this process and we want it to continue. We have also 
invested time and resources in this process. However, the process has 
stopped and we do not know why.
    Please let me summarize the work that has gone into the preparation 
of the draft EIS for this project.
    Three years ago the Bureau of Indian Affairs began preparing the 
draft EIS to examine the environmental impacts of the proposed project 
and various alternatives. The proposed project is located on a parcel 
which the Tribe had earlier identified in cooperation with the County 
and community representatives. The County considers the location ideal 
from an environmental, economic, and land use perspective, and thus, in 
August 2004, entered into a comprehensive Memorandum of Understanding 
with the Tribe to mitigate any possible impacts the project may have on 
the County.
    Two months later, in October 2004, the BIA published a Notice of 
Intent to prepare an EIS for the project. The BIA then conducted a 
public hearing on the scoping process several weeks later, and 
eventually published the scoping report in July 2005. We participated 
in that hearing and were satisfied with the scoping report.
    The BIA then worked diligently to prepare and distribute numerous 
administrative drafts of the EIS. In March 2006, the BIA sent an 
administrative draft EIS for review and comment to each of the five 
cooperating agencies, including the city of Madera and the Madera 
Irrigation District. These two local jurisdictions determined that the 
administrative draft provided more than enough information to use as a 
basis for negotiating their own separate mitigation agreements with the 
Tribe. In October 2006, the City entered into a Memorandum of 
Understanding with the Tribe, followed by the Madera Irrigation 
District 2 months later. Together with the County MOU, these agreements 
indicate the community's strong support for the project. At this point, 
every Chamber of Commerce, the city of Chowchilla, and nearly every 
community organization in the County has endorsed the project.
    I understand that the draft EIS was completed on February 2nd and 
that it was ready for distribution to the public. It is also my 
understanding that the draft EIS cannot be made public until there is a 
formal ``Notice of Availability of the Draft EIS'' published in the 
Federal Register.
    Unfortunately, the Notice of Availability has not yet been 
published, even though the draft was completed over 9 months ago. BIA 
officials have told the Tribe that the draft EIS is in order and 
nothing further is required from the Tribe for its publication. 
However, and despite the fact that the Tribe has repeatedly met with 
BIA representatives, and local government and community leaders have 
gone so far as to enlist the support of our local Congressional 
representative, the delay continues without explanation.
    Let me stress that publication of the Notice of Availability in the 
Federal Register is not a decision on the merits of the Tribe's 
project; it is simply a public notice of the draft EIS's availability 
for review and comment. It is two pages in length and, as required by 
the BIA NEPA Handbook, contains a brief description of the proposed 
action and alternatives, instructions to the public for submitting 
comments and attending a public hearing, and a closing date for the 
receipt of comments. In short, it is a small but critical step to allow 
continued input from the public--including my constituents.
    All levels of government have expended taxpayer dollars in the 
preparation and review of the draft EIS. Further delay in publishing 
the draft EIS would be unfair to taxpayers, since the environmental 
studies in the draft EIS may eventually need to be updated, triggering 
additional review. It is also unfair to the Tribe and its more than 
1,800 tribal citizens who continue to incur significant interest 
expenses with each passing month.
    In closing, the County and city of Madera are excited about the 
Tribe's project and the development that it has already brought to our 
community. We are hopeful that the Committee's oversight will help end 
the current backlog so that the NEPA process can continue without 
further delay.

    The Chairman. Mr. Bigelow, thank you very much. We 
appreciate your coming to our Committee today.
    Next, we will hear from Mr. Doug Nash, the Director of 
Indian Estate Planning and Probating, Institute of Indian 
Estate Planning and Probate at Seattle University School of Law 
in Seattle, Washington.

   STATEMENT OF DOUGLAS NASH, DIRECTOR, INSTITUTE FOR INDIAN 
                  ESTATE PLANNING AND PROBATE

    Mr. Nash. Thank you, Mr. Chairman. Thank you for the 
opportunity to be here, Madam Chairman.
    The Institute for Indian Estate Planning and Probate was 
established in August of 2005. We are a project of the Indian 
Land Tenure Foundation, a non-profit corporation headquartered 
in Little Canada, Minnesota. The institute develops and 
oversees estate planning projects, projects that provide estate 
planning services to tribal members. We have projects in 
operation in seven States at this time. We utilize a variety of 
different models. Those include providing staff positions, 
attorneys, paralegals, specially trained law students working 
as externs and interns, and a clinical program there at Seattle 
University as well.
    These services are provided to tribal members at no cost, 
and projects to date have provided approximately 2,400 estate 
planning documents, including wills, to tribal clients 
throughout the areas our project serves. Except for a pilot 
project funded by the Bureau of Indian Affairs, all of our 
projects are funded through private sources, foundations and 
non-profits. Consequently, the number of projects that we 
operate and the number of clients that can be served are 
limited. It is our hope that the authorization for 
appropriations as provided in the Probate Reform Act at some 
point will be activated and utilized for this purpose.
    I wanted to touch briefly upon the benefits of estate 
planning services as a remedy or having an impact upon the 
backlog of probates and the issue of fractionation. Estate 
planning, effective and professional estate planning, does a 
number of things. First of all, it provides an opportunity to 
catch errors in land title records as wills and estate plans 
are being done for tribal member clients, and consequently it 
provides an opportunity to correct those mistakes.
    In many instances, estate planning avoids probate entirely. 
Many times, clients wish to provide gift deeds or effect sales 
of their interests in trust property to tribes or other tribal 
members, or pursue consolidation applications, and in taking 
those approaches remove their estate from the probate process.
    Wills also provide an opportunity to avoid fractionation, 
or further fractionation of interests in trust land. Since we 
have been tracking the statistics, we find that approximately 
90 percent of the wills done have that effect. There are a 
number of devices by which that can be achieved, allowing a 
tribal member client to leave property to heirs as joint 
tenants with a right of survivorship, leaving entire parcels to 
individuals heirs, and so on.
    Professionally done wills facilitate the probate process 
when wills are correctly and properly done. Wills can also 
avoid the fractionation that is actually caused by the Probate 
Reform Act, which happens when interests that are greater than 
five percent are less to pass intestate. It is our belief that 
the goals and purposes of the Probate Reform Act cannot be 
achieved unless there is professional estate planning services 
provided to tribal member clients throughout Indian Country.
    We have an interesting opportunity in the State of Alaska, 
Madam Vice Chair, where there are first generation allotments, 
compared to allotments in the lower 48, many of which date 
back, as you know, for 100 plus years, and where fractionation 
is a very serious problem. That problem doesn't exist yet where 
those first generation allotments exist. We believe that would 
be a very unique opportunity to provide estate planning 
services in those situations and avoid there, I believe, the 
problem of fractionation that we see so rampant across 
reservations here in the lower 48.
    I thank the Committee again for the opportunity to be here. 
We would be happy to provide any further information that we 
can on this issue.
    [The prepared statement of Mr. Nash follows:]

  Prepared Statement of Douglas Nash, Director, Institute for Indian 
                      Estate Planning and Probate
    My name is Douglas Nash. I am the Director of the Institute for 
Indian Estate Planning and Probate which is a project of the Indian 
Land Tenure Foundation (ILTF), a non-profit foundation headquartered in 
Little Canada, Minnesota. The Institute is housed at Seattle University 
School of Law in Seattle, Washington. The Institute was created by the 
(ILTF) in 2005 in anticipation of the American Indian Probate Reform 
Act (AIPRA) taking effect in June, 2006.
    I would like to address briefly three areas. First the work of the 
Institute; second, the impact of fractionation and probate backlogs as 
discovered through our work; third, suggestions for addressing the 
issues of fractionation and backlog.
I. The Institute:
    The mission of the Institute is to assist Indian people in making 
informed decisions about their property by:

        1. Establishing legal service projects that provide free and 
        reduced cost estate planning and consolidation services to 
        individual tribal members;

        2. Providing training to tribal members, governmental officials 
        and the legal community, and;

        3. Serving as a clearinghouse for the latest information on the 
        American Indian Probate Reform Act.

    In addition, we have begun offering review of draft tribal probate 
codes that will be submitted for approval pursuant to the provisions of 
AIPRA.
1. Projects
    Our projects are funded by the ILTF and other foundations and 
provide no cost estate planning services to tribal communities. Over 
the past 4 years, we have utilized a number of different and successful 
models designed to provide estate planning service and information on 
land consolidation, including will drafting, gift deeds, sales and 
durable powers of attorney. These models utilize different combinations 
of attorney, para-legal, and law student interns providing services to 
selected tribes in South Dakota, Washington, Oregon, Idaho, Montana, 
Minnesota, and Arizona. In FY 2006, we also managed a 1-year, one half 
million dollar pilot project funded by the Bureau of Indian Affairs. 
Among the stated purposes of that BIA project was to determine if 
estate planning services were needed in Indian Country and, if so, 
whether fractionation could be effectively addressed by estate 
planning. The results indicate an unequivocal yes to both questions. 
Under that project, estate planning services were provided on six 
reservations in Washington and Oregon as well as reservations in South 
Dakota. Copies of that final report will be provided to you.
    Overall, the projects that we have developed and overseen have 
resulted in a total of 1,326 wills and 1,142 other estate planning 
documents being completed at no cost to Indian people. Insofar as I am 
aware, ours is the only program in the country that is seeking to 
provide estate planning services on a large scale in Indian Country. We 
develop programs as funds become available. However, our current 
projects do not even come close to meeting the need nation-wide and 
private funding for these services is very difficult to come by as it 
is viewed by private foundations as a government problem.
2. Training
    We have held 2-day, national symposia in Seattle, WA, Rapid City, 
SD and Tempe, AZ in addition to responding to requests from tribes, 
organizations and state bar sections in Montana, Idaho, Nevada, South 
Dakota, Minnesota, Washington and California. We are currently planning 
national programs to be held in Minnesota, New Mexico and again in 
Seattle. For our symposia, we bring in a wide range of experts as 
presenters including Judges from the Office of Hearings and Appeals, 
Attorney Decision Makers, Bureau of Indian Affairs officials, personnel 
from the Office of the Special Trustee, Indian Land Consolidation 
Program, law school faculty, Tribal and private attorneys. We have 
heard the questions posed by hundreds of Indian land owners who have 
attended these sessions. We have the benefit of interacting with all of 
these individuals whose knowledge and information contributes to our 
knowledge of the probate process.
    More Information on the Institute is available at 
www.indianwills.org.
II. Fractionation of Land and Probate Backlog
    With that background, I'd like to offer some observations and 
thoughts about the backlog in Indian probate cases.
    Fractionation of trust allotments is a fact and one that has been 
recognized as an exponential problem in many governmental studies 
including the 1928 Meriam Report. \1\ Examples and figures abound. With 
the focus on fractionation, it should also be noted, however, that not 
every parcel of trust land is highly fractionated and if highly 
fractionated, can still have substantial economic value.
---------------------------------------------------------------------------
    \1\ Lewis Meriam et al., The Problem of Indian Administration: 
Report of a Survey Made at the Request of Hon. Hubert Work, Sec. of the 
Int. (Feb. 21, 1928) (John Hopkins Press, 1928) availble at http://
www.alaskool.org/native_ed/research_reports/IndianAdmin/
Indian_Admin_Problms.html.
---------------------------------------------------------------------------
    In many locations where the allotment process was late in being 
applied to reservations, or individual owners were tenacious in land 
protection, large interests including 100 percent ownerships, are 
found. In many instances, an interest less than 5 percent of the total 
parcel will have minimal economic value. However, 5 percent of a 160 
acre parcel of land is 8 acres which could well be suitable for many 
uses. Likewise, an interest that is less than 5 percent of a parcel 
situated in a municipal setting in southern California or which 
overlays valuable oil or mineral deposits, has substantial economic 
value. Additionally, even small interests in an original allotment can 
have historic, cultural, familial and personal values to an individual 
owner that are far more important than any economic consideration.
    Fractionation is a significant factor in the probate backlog, as 
each interest, however minute, requires accurate title records from the 
inception of decedent's probate package, distribution at probate and 
entry of new title transfers to heirs.
    The probate process requires the involvement of three different 
entities-the Bureau of Indian Affairs, the Office of Special Trustee 
and the Office of Hearings and Appeals. There are delays that 
apparently stem from each agency and the need for additional personnel 
and resources is often raised as a potential to the backlog problem. It 
appears that all agencies are making significant progress on the 
existing backlog. OHA is doing so with a small number of judges 
especially compared to the number of probate, realty, and contract 
personnel involved at the BIA and tribal end of the process. In light 
of the existing caseload and the future impacts of AIPRA allowing for 
purchase options and consolidations during probate which will further 
slow the process, increases in the number of judges should be 
considered.
    There are other complicating factors that need to be addressed as 
well.
1. Trust Land Ownership Records
    The BIA has the responsibility of preparing a probate file as the 
first step in the probate process. This involves the gathering of all 
relevant information about the decedent including records of trust land 
ownership. Those records are currently maintained at different agencies 
and in several Land Title Record Offices around the country that 
maintain records for different regions. The number of fractionated 
interests complicates the ownership record keeping process by sheer 
numbers and the fact that one individual may well own interests that 
are recorded in more than one LTRO. Changes in ownership are not 
necessarily recorded at a uniform pace and a probate file may be sent 
forward that does not include all of the interests owned by a decedent 
at the time of death, making the probate inaccurate and necessitating 
additional probate proceedings and a modification of a final probate 
order. When a final probate order is issued, that order is sent to back 
to the BIA where changes in title ownership--from the decedent to 
heirs--is to be recorded. Because those orders may have to be 
interpreted and recorded by several different LTROs, there may be 
differences in the interpretation process.
    There are errors in the land title records. I know from personal 
experience that there are inconsistencies between records in the TAAMS 
and TFAS systems. To achieve consistency in policy and interpretation, 
increased accuracy and timely recordation of changes in ownership, 
having central land ownership records accessible nationally with well 
defined procedures would be a positive step.
    Outdated ownership records and data bases create a new probate 
backlog as they are corrected, increasing the work for the BIA and OHA. 
As title records are corrected, new heirs are found requiring case 
openings, often with one or more heirs deceased resulting in reopening 
and modifications to closed probate cases. Many of these old cases 
predate the Protrac system, which means the data must be entered by BIA 
before OHA can begin probates.
    Finally, under AIPRA, measurements of fractionated interests will 
be used determine consent requirements for sales at probate, partitions 
and also the application the intestate ``single heir'' rule. This is 
significant. Accurate and up-to-date title records are essential to 
avoid the misapplication and taking of interests without consent. As 
historically evidenced by Youpee, the return of fractionated lands to 
rightful heirs is an costly and onerous process that is difficult to 
achieve.
2. Probate Files
    Probate begins only when a death is reported to the BIA and that 
reporting is dependent upon members of the family or community. That 
may not happen for a long time after the death actually occurs. For 
example, the death of a person who is not married and who has no 
descendents may not be reported as promptly as that of an individual 
who has a large family. Presumption of death cases require additional 
work and a higher level of expertise that the typical probate cases as 
OHA must make determinations that an individual is presumed to be 
deceased. One recommendation is to allow BIA and OHA to use OST 
investigators in developing and adjudicating these cases. The failure 
to have a death reported or death presumption cases may well result in 
further errors in the probate of related estates resulting in 
additional case reopening and modifications.
    It is our understanding that the BIA has initiated a quota system 
for the preparation of probate files in an attempt to increase the 
number of files sent forward to OHA for probate. This has resulted in a 
significant reduction in the backlog reported. However, in many 
instances, this has increased the number of files sent forward 
incomplete requiring the files to be sent back to the BIA or the OHA 
must attempt to finish compiling the necessary information. It is not 
known how returned files are reported in the backlog process.
    In these kind of situations, OHA judges are often placed in the 
position of having to do work on probate files to make them complete. 
They do not have investigators or staff to perform that function. The 
ILTF and the Institute have discussed the prospect of developing a 
model intern/extern program to work with OHA judges and which could 
address that need. While such a program could be developed and, we 
believe, initial private funding could be obtained, it ultimately would 
require Federal funding to support and continue it.
3. Planning and Coordination
    Because the Indian probate system depends upon separate agencies 
and several different offices within those agencies, there is clearly a 
need for integrated data sharing and coordination between all involved.
4. Impact of AIPRA on the Probate Process
    The full impact of AIPRA on the probate process is yet to be seen. 
That impact will not be fully seen until most or all of the cases 
before OHA are those where the decedent passed away after June 20, 
2006, and thus are subject to the provisions of AIPRA. However, it is 
expected that the need to address consolidation agreements and purchase 
options as part of the probate process will result in some cases taking 
more time to close.
III. Solutions
    Tools to reduce, and ultimately eliminate fractionation, already 
exist. Those tools include: (1) The American Indian Probate Reform Act, 
(2) Estate Planning services for Indian Country and, (3) The Indian 
Land Consolidation Program. Recommendations for improvements are 
mentioned throughout this testimony.
1. The American Indian Probate Reform Act
    AIPRA contains a multitude of mechanisms that can be used by the 
Secretary, tribes and individuals to consolidate interests in trust 
allotments. Examples include tribal land consolidation plans, 
consolidation agreements, fractional interest acquisition program, 
purchase options at probate, renunciation and partitioning that 
reconsolidates all interest in one owner. Other mechanisms such as the 
single heir rule and testamentary presumption of joint tenant with 
right of survivor will serve to avoid further fractionation of small 
interests in trust lands. Given sufficient time, the Act will have the 
intended result of reducing fractionation through consolidation of 
interests.
2. Estate Planning
    Estate planning is an important and unrecognized tool for reducing 
fractionation and probate cases, reconsolidating land interests, and 
furthering an individual's ability to voluntarily manage their own 
lands. Additionally, estate planning diminishes the number of land 
interests entering the probate stream through inter-vivos transfers 
including sales, consolidation applications and gift deeds. \2\ Another 
important benefit, estate planning allows title records to be corrected 
or updated when discrepancies are found while the owner is alive as 
each client has an updated title report reviewed in the estate planning 
process.
---------------------------------------------------------------------------
    \2\ Under AIPRA, a person may devise in a will a trust interest to 
anyone defined as an ``eligible heir.'' However, a person cannot make 
an inter-vivos conveyance in trust to some of those same individuals. 
The result is that some individuals are forced to wait until death and 
probate to achieve what they might otherwise wish to do while alive. 
The purpose and intent of AIPRA would be furthered by simple 
legislation authorizing the inter-vivos conveyance of interests in 
trust land, in trust, to all persons defined as ``eligible heirs'' 
under AIPRA.
---------------------------------------------------------------------------
    The Institute's projects provide community education to landowners 
and client counseling, successfully highlighting consolidation options 
with a will and lifetime transfers. The result--only 8 percent of wills 
drafted further fractionate lands; and gift deeds, sales and 
consolidation agreements transfer the lands during life avoiding the 
probate process entirely. Because AIPRA's intestacy rules distribute 
interests 5 percent or greater to all eligible heirs as tenants in 
common, further fractionating ownership interests, estate planning 
provides greater tools for protection against fractionation than AIPRA 
itself.
    AIPRA is highly complex with provisions coordinated with other 
Federal acts and codes. The Act, combined with the withdrawal of BIA 
will drafting services, has created a huge void of specially trained 
professionals to provide estate planning for Indian people. The need 
for trained professionals has been voiced to us from every quarter. It 
is our estimation that there are currently less than 100 legal 
professionals currently trained nationally. We have already seen the 
results of will drafting being done by attorneys who are unaware of 
AIPRA and its ramifications for their clients. This poses a potentially 
disastrous result for the Indian client in terms of their estate plans 
and desires. It also poses a potentially disastrous professional 
liability for the attorney who performed the work.
    While our projects have had a beneficial effect, the tribal 
communities served are very limited. The pursuit of private funds to 
support this work has been met with very limited success, as the work 
is often viewed as a governmental responsibility. AIPRA contains an 
authorization for appropriations for estate planning work in Indian 
Country. An appropriation of funds sufficient to deliver these services 
throughout Indian Country would significantly advance the effort to 
reduce, and eventually eliminate fractionation. AIPRA's goals will fail 
unless funding for professional estate planning services is provided.
3. Indian Land Consolidation Program
    The ILCO program, established in April 2003 as a pilot program on a 
limited number of reservations, has a demonstrated remarkable record of 
success in eliminating fractional interests, purchasing 359,723 
interests for tribes and precluding them from ever reaching probate. 
The mechanics of the program need not be reviewed here. The program has 
broad support for three primary reasons--first, trust interests are 
purchased on a willing seller basis; second, purchase are made at fair 
market value and; third, the interests purchased are consolidated into 
tribal ownership. Given the very significant results achieved by this 
program it is amazing that funding for it has been significantly 
reduced for FY 2008, to a level that will not allow it to reduce the 
number of fractionated interests but only maintain the status quo 
against the ever increasing numbers of fractionated interests coming 
into existence. This is especially amazing since the purchase price is 
ultimately repaid by revenue generated from the acquired interest. The 
program currently operates on only eight reservations, all located in 
the Midwest. The Indian Land Consolidation Program has proven itself to 
be a highly effective tool in the elimination of fractionated interests 
with the benefit of affecting consolidation of those interests in 
tribal ownership. The program should be expanded to other reservations 
and should be funded at a substantially increased rate.
    A news article some time ago noted that there was no quick fix for 
Indian probate problems and that remains true with regard to the 
backlog of cases. Fractionation and the attendant problems that flow 
from it began with the allotment process 130 years ago. AIPRA, estate 
planning services and the Indian Land Consolidation Program will 
ultimately resolve the fractionation problem or reduce it to an 
insignificant level. The elimination of fractionation will go far in 
reducing the complications in the probate process that feeds the 
backlog seen now.
4. Revised Process Recommendation
    Arvel Hale, former Chief Appraiser for the BIA who now works as a 
consultant on appraisal and systems issues, has a suggestion for 
reducing the time required to prepare probate documents. He proposes 
developing a system that will:

        (1) Retrieve the ownership data from the Land Records System 
        (TAAMS).

        (2) Retrieve money amounts from the IIM accounts.

        (3) Retrieve names and addresses of the heirs from the 
        enrollment system.

        (4) Prepare property value estimates using a Mass Appraisal 
        Model that utilized inventory data from the trust land 
        management system.

        (5) Calculate the entitlements from the probate to be conveyed 
        to the heirs.

        (6) Electronically compile and print data in report formats 
        that would be helpful to the Probate Judges.

        (7) As Probate Judges rule on the cases the land records could 
        be automatically updated from the information in the probate 
        system.

    He has advised that this system would require links to existing BIA 
and OST data bases so that data can be efficiently passed between them 
and the probate system. The technicalities involved in developing this 
kind of system are far beyond my understanding, but I would be happy to 
assist in exploring the prospect further with Mr. Hale should that be 
of interest to the Committee.
5. Alaska--A Unique Opportunity
    Alaska presents a unique opportunity in terms of Indian estate 
planning. Whether one agrees with the allotment process, there are 
first generations allotments in Alaska. This presents an opportunity to 
avoid the fractionation crisis and to demonstrate that fractionation 
can be avoided by estate planning.
IV. Conclusion
    I would like to thank this Committee for allowing me the 
opportunity to appear and offer testimony on this important issue. I 
would like to especially thank this Committee for its interest in the 
Indian Probate Process and in making it work for the benefit of Indian 
people, tribes and communities.
    If we can provide any further information or respond to any 
questions, we would be happy to do so.

    The Chairman. Mr. Nash, thank you very much for your 
testimony today.
    Next, we will hear from Mr. Robert Chicks, Vice President, 
National Congress of American Indians, Midwest Region; 
President of the Stockbridge Munsee Band of Mohican Indians; 
Co-Chair of the NCAI Land Recovery Task Force; President of the 
Midwest Alliance of Sovereign Tribes; President of the Great 
Lakes Intertribal Council.
    Mr. Chicks, do you have any other titles that I might have 
missed here?
    [Laughter.]
    The Chairman. You are a very busy man, and we thank you 
very much for bringing your testimony to the Committee today.

 STATEMENT OF ROBERT CHICKS, VICE PRESIDENT, NATIONAL CONGRESS 
              OF AMERICAN INDIANS (NCAI), MIDWEST 
         REGION; PRESIDENT, STOCKBRIDGE MUNSEE BAND OF 
         MOHICAN INDIANS; ACCOMPANIED BY JOHN DOSSETT, 
                     GENERAL COUNSEL, NCAI

    Mr. Chicks. Thank you, Mr. Chairman. Thank you for the 
invitation.
    I testify to you on behalf of the National Congress of 
American Indians and our member tribes. We have grown 
increasingly concerned about the backlog of realty functions at 
the Bureau of Indian Affairs and the negative impacts on our 
efforts to develop economic activity on our reservations, as 
well as the impact on housing, our culture and our services, 
and land consolidation. We hope to offer some suggestions on 
how Congress and the Department of Interior can address these 
growing problems.
    First, I believe it is important for Congress to recognize 
that land management should be the BIA's core mission and 
priority, to protect and restore the permanent homelands where 
tribal communities live and govern our own affairs.
    Second, the various backlogs are not independent problems, 
but are related parts of the same Bureau of Land Management 
system. I have included in my testimony a simple diagram of the 
Bureau trust business cycle. This chart shows how most economic 
transactions work in Indian Country, starting with land and 
ownership, moving to land leasing and sales of natural 
resources, and then accounting and distribution of the trust 
funds back to the landowners. Backlogs in one area create a 
bottleneck that causes multiple delays across the entire 
system.
    Third, over the last 10 years, a great deal of attention 
has been paid to trust accounting because of the litigation 
over Indian trust funds. However, the basic Bureau land 
functions of title, leasing, acquisitions and probate are even 
more critical to Indian communities because these functions 
drive economic development. Business transactions from routine 
home mortgages to timber sales to large commercial deals 
require predictability and timeliness that is lacking from the 
Bureau system.
    The causes of these backlogs are complex and rooted in the 
history where the Bureau has mismanaged tribal lands due to 
inadequate resources and a lack of oversight and 
accountability. These historic problems have been compounded in 
recent years by several factors, including the Fiscal Year 1996 
budget cuts for Bureau programs were implemented primarily by 
laying off realty workers in the field offices. The realty 
budget has never recovered from these cuts.
    The level of fractionation has increased dramatically, 
causing backlogs in probate and title that create delays in 
other parts of the land management system. In response to the 
trust fund litigation, available resources have been shifted to 
the Office of Special Trustee, which has grown to $150 million 
annual budget with resources largely taken from the Bureau 
realty offices. The litigation has also cut off e-mail and 
internet access, which eliminates the efficiency of current 
communication technologies. Indian tribes are increasing our 
economic activities, creating an increase in commercial 
leasing, land transactions and the need for appraisals.
    I want to mention several solutions for these backlogs that 
have garnered wide support from tribal leaders. Number one, all 
of these factors have combined to create backlogs in Bureau 
realty that will not change until Congress puts more financial 
resources into these functions. In addition, Bureau realty 
needs process and system improvements, recruitment and training 
programs for employees, and leadership to develop and implement 
a plan for business operations and trust management.
    Second, Congress should also revisit Title III of last 
year's S. 1439 bill which would increase tribal control over 
reservation land management. Indian reservations vary widely in 
their needs for land management services. Tribes would be able 
to create reservation-specific land management plans and 
allocate the available funding according to the needs of that 
particular reservation. They would have the option to take over 
specific functions. Under these plans, tribes would also be 
authorized under certain types of leases, without the 
involvement of the department.
    Three, Congress should also revisit Title IV of last year's 
S. 1439 bill which would amend the Indian Land Consolidation 
Act to streamline land acquisition procedures and create 
incentives for sales of fractionated interests.
    And four, Congress should work with tribes in the 
development of other innovative solutions. Lending in Indian 
Country is often a problem, and some tribes are developing 
ideas about lending intermediaries who can become familiar with 
securing loans into the Bureau trust system.
    Finally, I want to particularly mention one of the backlogs 
that has is of great importance to tribes. As this Committee 
knows, between the years 1887 and 1934, the U.S. Government 
took more than 90 million acres from the tribes, nearly two 
thirds of all our reservation lands, and sold it to settlers 
and corporations.
    The Secretary of Interior was given the responsibility 
under the Indian Reorganization Act to reacquire land for 
Indian tribes and restore the damage caused by earlier 
congressional policies. As noted by one of the IRA's principal 
authors, Congressman Howard of Nebraska, he said, ``The land 
was theirs under titles guaranteed by treaties and law, and 
when the government of the United States set up a land policy 
which, in effect, became a form of legalized misappropriation 
of the Indian estate, the government became morally responsible 
for the damage that has resulted to the Indians from its 
faithless guardianship.''
    The vast majority of trust land acquisitions take place in 
rural areas within the boundaries of existing reservations, and 
are not controversial in any way. Trust land acquisition is 
necessary for the consolidation of fractionated and allotted 
Indian lands, and often is needed for essential purposes such 
as Indian housing, health care clinics, and land for Indian 
schools.
    Our perception has been that land-to-trust applications are 
delayed because they are discretionary functions in officers 
that are understaffed and overloaded with mandatory trust 
functions. Even though land-to-trust applications are a very 
high priority for the tribes and for the fundamental mission of 
the Bureau, they are given a lower priority because they do not 
come with deadlines attached to them.
    The backlog of decision making in Bureau realty has been a 
leading concern of tribal leaders throughout the Country for 
many years, and the National Congress of American Indians 
strongly encourages Congress and the Administration to take 
action on these issues in close consultation with the tribal 
leadership.
    Thank you.
    [The prepared statement of Mr. Chicks follows:]

Prepared Statement of Robert Chicks, Vice President, National Congress 
  of American Indians (NCAI), Midwest Region; President, Stockbridge 
                     Munsee Band of Mohican Indians
    Honorable Chairman and members of the Committee, thank you for the 
opportunity to testify today. This is a very timely and important 
topic. The National Congress of American Indians and its member tribes 
have grown increasingly concerned about the backlog of realty functions 
at the Bureau of Indian Affairs, and the negative impacts on our 
efforts to develop economic activity on the reservations. In our 
testimony, we hope to shed light on the context of these various 
backlogs, and offer constructive suggestions on how Congress and the 
Department of Interior can make improvements.
    First, I believe it is important for Congress to recognize that the 
Bureau of Indian Affairs is primarily a land management agency. It is a 
specialized type of land management, with the responsibility of holding 
56 million acres of Indian lands in trust and managing them as a 
permanent homeland where Indian tribal communities live and govern 
their own affairs. Of course the BIA has other functions such as law 
enforcement and education, but these activities are a part of the 
primary responsibility of protecting and managing tribal homelands. 
Land management should be the BIA's core mission and priority.
    Second, the various backlogs that the Committee has identified are 
not independent problems, but are interrelated parts of the same BIA 
land management system. I have attached to my testimony a simplified 
diagram of the BIA trust business cycle. This chart shows how most 
economic transactions work in Indian country--starting with land and 
ownership, moving to land leasing and sales of natural resources, and 
then accounting and distribution of trust funds back to the land 
owners. Backlogs in one area affect the entire system. For example, in 
order to execute a lease, the BIA must have an accurate title status 
report and a current appraisal and may need a survey and an 
environmental review. In order to get a title status report, the BIA 
may have to update the title with the results of probate decisions. A 
bottleneck at one step in the process causes multiple delays across the 
entire system.
    Third, over the last 10 years, a great deal of attention has been 
paid to the accounting part of the trust business cycle because of the 
litigation over Indian trust funds. However, in the big picture the 
basic BIA land functions of title, leasing, acquisitions and probate 
are even more critical to Indian communities because these functions 
drive economic development. Business transactions--from routine home 
mortgages to timber sales to large commercial deals--require a degree 
of predictability and timeliness that is lacking from the BIA system. 
Tribal leaders want to fix the BIA land system and we hope to work 
closely with the Committee and the Department in developing solutions.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Causes and Solutions of BIA Realty Backlogs
    Trust problems at the BIA are rooted in our country's history. In a 
push to acquire tribal land, the Federal Government imposed reservation 
allotment programs pursuant to the General Allotment Act of 1887. Under 
these policies, tribes lost 90 million acres and much of the remaining 
56 million acres was opened to non-Indian use through leasing and 
sales. It is widely documented that the BIA has historically mismanaged 
tribal lands due to inadequate resources and a lack of oversight and 
accountability. \1\ The historic problems have been compounded in 
recent years by several factors:
---------------------------------------------------------------------------
    \1\ See Misplaced Trust: The Bureau of Indian Affairs' 
Mismanagement of the Indian Trust Fund, H.R. Rep. No. 499, 102d Cong., 
2ND Sess. 1992, 1992 WL 83494 (Leg.Hist.), and, Financial Management: 
BIA's Tribal Trust Fund Account Reconciliation Results (Letter Report, 
05/03/96, GAO/AIMD-96-63).

   The FY 1996 budget cuts for BIA programs were implemented 
        primarily by laying off realty workers in the field offices. 
---------------------------------------------------------------------------
        The realty budget has never recovered from these cuts.

   The level of fractionation has increased dramatically, 
        causing backlogs in probate and title that create delays in 
        other parts of the land management system. Fractionation is 
        also creating mounting costs in both management and losses in 
        land productivity.

   In response to the Cobell litigation for a trust funds 
        accounting, available resources have been shifted to the Office 
        of Special Trustee, which has grown to a $150 million annual 
        budget with resources largely taken from BIA realty. The 
        litigation has also cut off e-mail and internet access, which 
        eliminates the efficiency of current communication 
        technologies.

   Indian tribes have increased their economic activities, 
        creating an increase in commercial leasing, land transactions 
        and the need for appraisals.

    Potential solutions include:

        1) All of these factors have combined to create backlogs in BIA 
        realty that will not change until Congress puts more financial 
        resources into those offices at the local level. In addition, 
        BIA realty needs process and system improvements; recruitment 
        and training programs for employees; and leadership to develop 
        and implement a plan for business operations in trust 
        management.

        2) Congress should also revisit Title III of last year's S. 
        1439, which would increase tribal control over reservation land 
        management. Indian reservations vary widely in their needs for 
        land management services. Indian tribes would be able to create 
        reservation-specific land management plans to establish 
        objectives and priorities, and allocate the available funding 
        according to the needs of that particular reservation. Both 
        direct service and self-governance tribes are eligible to use 
        the plans. Under these plans, tribes would be authorized to 
        enter certain types of leases for up to 25 year terms without 
        the involvement of the Department.

        3) Congress should also revisit Title IV of last year's S. 
        1439, which would amend the Indian Land Consolidation Act to 
        streamline land acquisition procedures and create incentives 
        for sales of fractionated interests.

Land to Trust Acquisitions
    As mentioned above, between the years of 1887 and 1934, the U.S. 
Government took more than 90 million acres from the tribes, nearly two-
thirds of all reservation lands, and sold it to settlers and 
corporations. The principal goal of the Indian Reorganization Act of 
1934 was to halt and reverse the abrupt decline in the economic, 
cultural, governmental and social well-being of Indian tribes caused by 
the disastrous Federal policy of allotment and sale of reservation 
lands. The IRA is comprehensive legislation for the benefit of tribes 
that stops the allotment of tribal lands, continues the Federal trust 
ownership of tribal lands in perpetuity, encourages economic 
development, and provides a framework for the reestablishment of tribal 
government institutions on their own lands.
    Section 5 of the IRA, 25 U.S.C. 465, provides for the recovery of 
the tribal land base and authorizes the Secretary of Interior to 
acquire land in trust status for the benefit of Indian tribes to assist 
in meeting the broad goals of the Act. As noted by one of the IRA's 
principal authors, Congressman Howard of Nebraska, ``the land was 
theirs under titles guaranteed by treaties and law; and when the 
government of the United States set up a land policy which, in effect, 
became a forum of legalized misappropriation of the Indian estate, the 
government became morally responsible for the damage that has resulted 
to the Indians from its faithless guardianship,'' and said the purpose 
of the IRA was ``to buildup Indian land holdings until there is 
sufficient land for all Indians who will beneficially use it.'' (78 
Cong. Rec. 11727-11728, 1934.)
    Of the 90 million acres of tribal land lost through the allotment 
process, only about 8 percent has been reacquired in trust status since 
the IRA--and most of that was the ``ceded but unallotted lands'' 
returned immediately after the IRA. Still today, a number of tribes 
have no land base and many tribes have insufficient lands to support 
housing and self-government. Most tribal lands will not readily support 
economic development. A fundamental purpose of the IRA in promoting 
land acquisition was to address the problem of scattered and 
fractionated parcels which often rendered the tribal land base 
essentially unusable from a practical standpoint. And the legacy of the 
allotment policy, which has deeply fractionated heirship of trust 
lands, means that for many tribes, far more Indian land passes out of 
trust than into trust each year. Section 5 clearly imposes a continuing 
active duty on the Secretary of Interior, as the trustee for Indian 
tribes, to take land into trust for the benefit of tribes until our 
needs for self-support and self-determination are met.
    Despite this important purpose, land to trust applications often 
languish at the Department of Interior. It is a chief concern of many 
tribes with the existing land to trust process. Too often tribes have 
spent precious time and scarce resources to prepare a trust application 
only to have it sit for years or even decades without a response. Such 
inordinate delay on trust applications often amounts to an unfair de 
facto denial of the request. In addition, during inordinate delays 
tribes risk losing funding and support for the projects that they have 
planned for the land, and environmental review documents grow stale.
    Our perception has been that most often land to trust applications 
languish because they are discretionary functions in offices that are 
understaffed and overloaded with mandatory trust functions. Even though 
land to trust applications are a very high priority for the tribes and 
for the fundamental mission of the Bureau of Indian Affairs, they are 
given a lower priority because they do not come with deadlines attached 
to them.
    Tribal leaders have encouraged the BIA to establish internal 
timelines and checklists so that tribes will have a clear idea of when 
a decision on their application will be rendered. Tribes should know if 
progress is being made at all, and, if not, why not. Although we 
understand that the BIA is understaffed and that certain requests pose 
problems that cannot be resolved quickly, allowing applications to 
remain unresolved for years is unacceptable. The issue evokes much 
frustration over pending applications and has been raised at nearly 
every NCAI meeting.
    Tribal leaders' frustrations are heightened because the vast 
majority of trust land acquisitions take place in extremely rural areas 
and are not controversial in any way. Most acquisitions involve home 
sites of 30 acres or less within reservation boundaries. Trust land 
acquisition is also necessary for consolidation of fractionated and 
allotted Indian lands, which most often are grazing, forestry or 
agricultural lands. Other typical acquisitions include land for Indian 
housing, health care clinics that serve both Indian and non-Indian 
communities, and land for Indian schools.
    NCAI continues to urge the BIA to establish internal timelines for 
land to trust applications, which would include a provision for unusual 
and problematic cases. We believe these timeframes would balance the 
need for timely action from the BIA without burdening its staff or 
creating unrealistic expectations for the tribes. While decisionmakers 
must have adequate time, this must be balanced against the reality that 
all work expands to fill up the amount of time allotted to it. 
Establishing reasonable timelines is the only way to meet the tribes 
main goals--creating accountability in the process, and providing 
tribes with an estimated timeframe in which their applications will be 
processed.
Environmental Review
    One of the more burdensome requirements for many land transactions 
such as leases and acquisitions is the requirement that the application 
undergo an environmental review under the National Environmental Policy 
Act (NEPA). The Bureau of Indian Affairs does not have an adequate 
budget to perform environmental analysis, so these costs are most often 
pushed onto the Indian tribes who are seeking to develop a project on 
their own lands. Even when these are environmentally beneficial 
projects such as a sewage treatment plant, the BIA, and thus the 
tribes, must comply with NEPA.
    On this issue, we encourage the Congress to increase the resources 
to the BIA for compliance with NEPA, which can be a particularly 
difficult burden for tribes with fewer resources and larger land bases. 
In addition, we believe that it is appropriate for Congress to consider 
relieving tribes of some of the burdens of NEPA when tribes are 
developing publicly beneficial projects such as schools and clinics and 
other important community infrastructure. We do not believe that NEPA 
was ever intended to be a barrier to needed development of tribal lands 
by tribal governments where there is no real Federal action other than 
a pro forma land transaction approval.
    Finally, we recommend that the Department consider utilizing a 
categorical exclusion in its Departmental Manual for land transactions 
that do not involve a change in use. The BIA has a categorical 
exclusion for ``Approvals or other grants of conveyances and other 
transfers of interests in land where no change in land use is 
planned.'' 516 Departmental Manual 10.5.I. This categorical exclusion 
can and should be extended to conveyances where no change in land use 
is planned. Many tribes wish to take undeveloped land into trust for 
cultural or natural resource protection, and would manage such lands to 
fulfill those goals. In such cases, no change or environmental 
detriment to the land would occur. As a result, it makes good policy 
sense for transfers of such lands to benefit from the same categorical 
exclusion as other transfers of interests in lands which will have no 
adverse environmental impacts.
    As the Department has recognized, conservation and cultural 
resources protection are important goals for many tribes seeking to 
take land into trust. Providing tribes with a categorical exclusion 
from NEPA review in such cases will remove a burdensome and unnecessary 
transactional cost, and help many tribes achieve those important goals. 
Such a mechanism would be of particular assistance to those tribes with 
fewer resources and larger land bases in need of protection.
Conclusion
    NCAI and all tribal leaders strongly support fixing the trust land 
management system and we want to work constructively with the 
Department and with Congress to ensure sound management of tribal 
assets. The backlog of decisionmaking in BIA realty has been a leading 
concern of tribal leaders throughout the country for many years. NCAI 
strongly encourages Congress and the Administration to take action on 
all of the fronts that we have identified above, in close consultation 
and cooperation with tribal leadership. This effort will bring great 
benefits to Indian communities and our neighbors in productivity, 
economic development, and the wellbeing of our people. We thank you in 
advance, and look forward to starting our joint efforts immediately.

    The Chairman. Mr. Chicks, thank you very much.
    We have been joined by the Vice Chairman of the Committee, 
Senator Murkowski.
    Senator Murkowski, did you wish to say anything before you 
ask questions, or in terms of an opening statement?
    Senator Murkowski. No, Mr. Chairman. I will include or 
incorporate in my questions any opening comments that I might 
have had. Thank you.
    The Chairman. A few questions. For example, Mr. Bigelow, 
you describe what the county has gone through. You describe a 
delay in publishing the notice for the draft environmental 
impact statement. I can tell from your testimony how 
frustrating it is in terms of time. Tell me what you have done 
to reach out to try to figure out what is happening inside the 
system, inside the BIA. Have you contacted the Bureau of Indian 
Affairs or the Department of the Interior about status? What 
are you learning?
    Mr. Bigelow. We have, Mr. Chairman. We have made numerous 
attempts to contact either directly through the BIA or through 
our congressional representation, asking questions as to how we 
can better assist the BIA in accomplishing moving this project 
forward. It is a simple project. It is relatively benign if you 
look at the process of just allowing a two page report. It 
explains how the public process would work to go forward. Yet 
something so simple isn't occurring. We are perplexed or 
curious, maybe I should put. My own position there is why we 
are not seeing the due process occur.
    The Chairman. What are you learning? When you call and ask, 
you are talking to different levels. What are you told?
    Mr. Bigelow. We are told that the BIA is in charge of this 
and they will get back to us, and they will address this. We 
are basically stonewalled, sir.
    The Chairman. So does anybody get back to you?
    Mr. Bigelow. No, sir.
    The Chairman. Okay.
    Mr. Rhodes, you have this building. If we could have 
somebody put the picture of the building back up. I am trying 
to understand the circumstances. I guess it is pointed a 
different way at this point.
    When I did a listening session on the Gila Indian 
Reservation, I think it was in February of this year, I saw 
that building. That building has been completed for how long, 
Governor?
    Mr. Rhodes. Just a little over a year, at a cost of about 
$7 million.
    The Chairman. And you expected as you constructed that 
building to be able to lease the building?
    Mr. Rhodes. Yes.
    The Chairman. When were you told in this process, no, you 
can't lease it until there is a master lease signed by the BIA?
    Mr. Rhodes. It has been over a year back.
    The Chairman. And so I assume the tribe had some sort of 
apoplectic seizure learning that you have built a wonderful new 
building and can't lease it until somebody signs something at 
the BIA. Is that right?
    Mr. Rhodes. That is true. Yes.
    The Chairman. And what did you expect? Did you expect in a 
month or two or six or nine months that somebody would probably 
pay attention to this?
    Mr. Rhodes. Well, at the rate the BIA has been responding, 
we hoped it would be 60 to 90 days, but we are still waiting.
    The Chairman. So it has been over a year that this building 
sits empty. What are you hearing now from the BIA?
    Mr. Rhodes. Well, we did have a meeting with the Secretary. 
We do believe that he is going to do something to help us, we 
had the feeling after the meeting.
    The Chairman. When did you have the meeting?
    Mr. Rhodes. I believe it was two months ago, about a month 
or two ago.
    The Chairman. Well, I use this photograph just because I 
have seen the building. This is the sort of thing I don't 
understand. I would say to Assistant Secretary Artman, you 
know, I don't have the foggiest idea how this happens or why we 
don't take steps immediately to correct it.
    I am not suggesting, from the Committee standpoint, that 
you must approve or disapprove something. I am saying you must 
make decisions on things. Somebody has to make decisions. I am 
not surprised that this falls through the cracks, if you don't 
even have a system that determines how many applications or how 
many processes you have going on. It is just staggering to me 
that in the age of computers, when we are talking in the 
thousands, not millions or hundreds of millions, that we don't 
have a system that keeps track of all of these things, number 
one. And number two, that we don't have uniform guidelines in 
the various regions or procedures in the various regions to 
follow.
    So Mr. Artman, do you understand the frustration the 
Governor is speaking of? And the frustration I and others have 
about this?
    Mr. Artman. Mr. Chairman, I not only understand the 
frustration, but I have felt similar frustration myself when 
working for my own tribe. This is certainly something that we 
want to help with. As I mentioned to you before, we will be, 
and not just this particular thing, but the entire overall 
issue.
    The Chairman. But this issue is not an issue of taking land 
into trust. This is simply a lease. Apparently, there needs to 
be a master lease approved by the BIA. So this is not a process 
where you need to move land into trust. Somebody has been 
waiting here for a year for the BIA to have a little breakfast, 
go to work, and do some work, and take a look at real things 
and say, all right, here, yes or no.
    So I tell you what. I don't understand it and I am very 
disappointed in the people that work for the BIA if they are 
not able to do their job. If you don't have uniform procedures 
and guidelines on how to do things, I understand why it is not 
done well. But I think the Congress and the American people, 
certainly the tribes and this Committee expect better.
    So Mr. Chairman His Horse Is Thunder, you described it on 
the individual level. You described your mother's situation, 
and I assume you have the same frustration of just not knowing 
when this paper goes into this abyss, when someone might or 
might not decide that they will take some action one way or the 
other.
    Mr. His Horse Is Thunder. We are really concerned because a 
number of those applications for the tribe's fee-to-trust have 
been in the application process since 1992. That is a long 
time. And we are getting mixed signals from the Bureau at the 
national level. When Mr. Artman took office, he assured us he 
would take a look at the process and they were going to start 
processing applications. A few months later at a national 
conference, I believe, and I may be corrected on this, Mr. 
Ragsdale publicly said, ``We are not taking any applications; 
we are not processing any of the applications for fee-to-
trust.'' So we have been getting mixed signals from the 
national office. So we are concerned about this.
    The Chairman. Let me ask, Mr. Artman, if you would do me a 
favor just on this issue. Would you track down in your agency 
for me, just so that I might understand, when did this tribe 
file the required papers on this building? Who did it go to in 
the BIA? How long has it been sitting on whose desk? Why a year 
later has presumably nothing been done? Can we try to figure 
out who is exhibiting this Parkinson's law, a body at rest 
stays at rest?
    Mr. Artman. We can certainly do that.
    The Chairman. Who is engaged in that?
    Mr. Artman. I will take care of that.
    The Chairman. Senator Murkowski?

               STATEMENT OF HON. LISA MURKOWSKI, 
                    U.S. SENATOR FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman.
    There is a lot of frustration this morning from those who 
have appeared to testify, and I thank you all for your 
appearance and for your comments this morning. I do apologize 
for my tardy arrival.
    I am sorry that I missed your testimony, Mr. Artman. I did 
review your written testimony. It is frustrating to hear the 
Chairman's charge or his request to you, Mr. Artman. Can you 
give us the specifics on this particular facility and what the 
problem has been. My constituents up in the State of Alaska 
have had frustrations that they have shared with me. One in 
particular has been over Indian reservation roads money that 
has been approved, and yet not released.
    Petersburg down in Southeastern Alaska came to me and said, 
what is it that we have to do? We intervened and were able to 
finally, after a period of years, get those monies released. We 
just finished that with Chistochina. We again kind of shake the 
trees on that. That problem was resolved after a congressional 
inquiry. Now, we have the Seldovia Tribe that is in a similar 
situation.
    It just seems wrong that we have to have a congressional 
intervention or inquiry in order to resolve these delays that 
we can't understand why the delay, if the approval has been 
made, when it is happening.
    So I bring up the issue of the Indian reservation roads 
backlog to you. I do want to know that these are on your radar 
screen. I do want to know that, again for the third time now, 
we will ask for help with the Seldovia Tribe in processing 
their IRR money. But I am very concerned that it seems to be a 
case by case specific resolution, and that you don't appear 
within the BIA to have developed a process to allow for the 
next community that is awaiting the processing of their 
funding. It doesn't seem to be getting any better is my point 
to you.
    I understand from your written testimony that the biggest 
backlog of appraisal requests is in the Alaska region, and you 
attribute this apparently to native organizations requesting 
appraisals directly from the Office of Appraisal Services, 
rather than through the BIA. Would the backlog be eliminated or 
reduced in Alaska if the native organizations were to directly 
ask the BIA for an appraisal request? Would this help?
    Mr. Artman. I think certainly the backlog would be reduced 
if that were to happen. We also need to staff up a bit more in 
appraisals as well. We are also taking a look at if there are 
any other ways to make the process more efficient. Through 
legal processes, is there a way that we can eliminate, reduce 
or somehow look at another form of appraisals that what we are 
currently using as well.
    Senator Murkowski. Do you think it makes a difference if 
you go directly through the BIA?
    Mr. Artman. I think it would, yes.
    Senator Murkowski. I am going to ask you about a very local 
issue. This is the BIA office in Juneau. It has been for years 
the headquarters for the BIA in the regional office. My office 
was contacted some months ago to confirm rumors that BIA was 
going to be moving the regional office out of Juneau to 
Anchorage over a period of 18 months. We didn't learn about 
this through the BIA. We didn't learn about it from what you 
would assume would be the appropriate channels. It was really 
rumors out on the street, which I don't need to tell you is 
kind of bad form, and we would certainly hope that if in a fact 
the decision has been made, that we would be alerted to that.
    To compound the problem, though, your office told us that 
the regional office move was only proposed; that there was 
going to be consultation with the Alaska tribes before making a 
final decision. We have recently learned that your regional 
director, he has essentially stated that the regional office is 
being moved. In fact, he stated specifically, ``I don't think 
there is any doubt about the regional office being moved.'' And 
in a meeting there in Juneau back in July, he indicated that he 
was under a directive from the Department of Interior to move 
the regional office to Anchorage.
    My question to you is whether or not the Department of 
Interior directed your regional director, Mr. Cesar, to move 
the Juneau office.
    Mr. Artman. Okay. Thank you, Senator.
    First of all, let me say very plainly and clearly, there is 
no directive, no directive whatsoever to move the regional 
office from Juneau to Anchorage. It is something that we are 
looking into. It is unfortunate that----
    Senator Murkowski. So is Mr. Cesar mistaken in stating that 
there was a directive?
    Mr. Artman. Yes, he is. It is unfortunate that rumors tend 
to get ahead of the facts. As you may recall, when we said we 
were going to begin to look at this process and only begin to 
look at this process, I had come up here and informed you of 
that, along with Senator Stevens and Representative Young as 
well.
    We held our first consultation session on this issue in 
Juneau this summer. It was a very good consultation session and 
it was attended primarily by Tlingit Haida tribal members, and 
we certainly understood where they were coming from. We are 
going to be holding a second consultation at AFN for all the 
tribes. I promise a third meeting to individuals who have 
voiced concern regarding housing and those issues, where they 
are going to be taken care of. So we are going to actually have 
three meetings on this. I wouldn't call the second one 
necessarily a consultation--or third one, I am sorry--a 
consultation, because it is going to be discussing, but it is 
not with a specific tribe. It is more on a specific issue.
    At that point, if it is determined that we still need 
additional information or additional meetings, those will be 
held. We are not going to rush to a decision on moving the 
Juneau office. It is something that we want to consider very 
carefully, look at all the numbers, and weigh the pros and cons 
of doing so. As you are very familiar with, the distances in 
Alaska are great, and a lot of the activities that had taken 
place in Juneau and that have recently come up and become new 
activities have been in place in Anchorage, so there is some 
synergy there. But customer service is going to be first and 
foremost, and we need to hear from the customers, the tribes 
themselves before we make any determination on where we go.
    So there will be no moving trucks pulling up. I take it a 
few days ago they did not, as I believe it was reported they 
were coming on September 30. There has been no directive and I 
have signed nothing for Mr. Cesar to even move his office to 
Anchorage. He still should be showing up in Juneau on a daily 
basis.
    Senator Murkowski. So it is your understanding that a 
decision has not been made. If a decision is made to move out 
of the Juneau offices, what kind of a presence within Juneau 
would you expect to remain? You recognize it has to be customer 
service. You don't have a lot of access from the individuals 
that live in southeast to Anchorage.
    Mr. Artman. Right.
    Senator Murkowski. You are not connected by road. So do you 
have any idea at this point in time what you would keep in 
Juneau?
    Mr. Artman. If we were to move the offices, I believe right 
now we have approximately 45 employees that are working out of 
the Juneau office. Right now, initial estimates are that there 
would still be a force of 20 to 25 people remaining in the 
Juneau office to provide services to the southeast Alaska area.
    Senator Murkowski. Let me ask you, this was brought up by 
Mr. Chicks, I believe, who had suggested that perhaps if there 
were time lines imposed or a part of the BIA's fee-to-trust 
process that this would help with the inordinate delays. Mr. 
Chicks, you are nodding your head. I am assuming that that 
would help with the process if you knew that there were time 
considerations. Is this something that you have looked at as 
you are attempting to provide a level of better service within 
the agency?
    Mr. Artman. Yes it is, Senator. In reviewing how our 
different regions handle the fee-to-trust applications, we 
found that the most successful regions impose some sort of a 
deadline on themselves to get things done and stuck to it. We 
will be coming out with the fee-to-trust handbook in a matter 
of weeks, and that handbook will too contain internal deadlines 
for ourselves for completing different phases of the 
application process.
    Senator Murkowski. Well, I would hope that the deadlines 
are deadlines that are, when you say they are self-imposed, 
that there would also be some self-enforcement there, too.
    Mr. Artman. There will be self-enforcement as well.
    Senator Murkowski. So it is not just a good idea written 
down on paper, but that you actually work to adhere to that.
    Let me ask, and I believe it was Mr. His Horse Is Thunder 
made the comment about the lack of access to the internet due 
to the litigation that remains out there. Is this one of the 
issues that continues to lead to the inefficiency in processing 
so much of what we have heard today?
    Mr. Artman. I think it is not only the lack of the 
internet. There are whole business processes that we could take 
advantage of if we had access to the internet. Communications 
with tribes via them filling in forms, on the Indian 
reservation roads situation specifically that is another one 
where we could truly take advantage of that technology to 
expedite the process.
    On fee-to-trust appraisals, all those areas can be made 
faster, quicker and more efficient with the use of the 
internet. E-mail communications would also be beneficial as 
well. So this inability to communicate using the latest 
technology is hindering our ability to provide the best 
service.
    Senator Murkowski. Thank you, Mr. Chairman.
    [The prepared statement of Senator Murkowski follows:]

     Prepared Statement of Lisa Murkowski, U.S. Senator from Alaska
    Good Morning Mr. Chairman and thank you for holding this oversight 
hearing on administrative backlogs at the Department of the Interior 
affecting American Indians and Alaska Natives.
    Acting principally through the Secretary, the Assistant Secretary 
and the Special Trustee for American Indians, the Department is charged 
with the responsibility of managing tribal and individual Indian lands, 
minerals, timber, crops, minerals and water. Inefficiencies and 
backlogs in the Department's administrative processes dealing with 
these resources are notorious. They have been the subject of complaints 
by Indian beneficiaries for decades.
    There is good reason for these complaints: Indians and Alaska 
Natives depend on the use and development of these resources to pay 
their bills, raise their families and care for their elders. When the 
Department fails to act, or is slow to act, it affects tribal economies 
and it affects peoples' lives.
    I am aware that the Department may have problems with backlogs in 
the areas of fee-to-trust applications and leasing approvals. We will 
hear today what progress, if any, has been made at reducing these 
backlogs. From what I understand, the Department has made significant 
progress in chipping away at the backlog of probating Indian estates, 
and that the current probate backlog may be eliminated by Fiscal Year 
2009. If that's so, I'd like to hear more about how this was 
accomplished.
    I think that some of the backlogs in the fee-to-trust process are 
caused by legal requirements applicable to the process, like, for 
instance, NEPA compliance, but some contend that some of the backlog in 
this area has been deliberate, especially with regard to off-
reservation acquisitions.
    Some of the written testimony has pointed a finger at the impact of 
individual Indian land fractionation, and I am curious to hear more 
about what can be done to deal with that problem.
    Finally, while most of these problems seem to be more acute in the 
lower 48 states than in my home State of Alaska, I must say that we 
have some of our own backlog problems up there as well. Hopefully Mr. 
Artman will be able to explain how those will be handled by the 
Department.
    I would like to thank the witnesses before us today who traveled so 
far to be here and I look forward to their testimony.

    The Chairman. Senator Murkowski, thank you very much.
    Mr. Artman, we have called you down here. You are a 
relative newcomer to your job, so I don't want you to leave 
here believing that we have created a condition in which you no 
longer want to serve in public office.
    [Laughter.]
    The Chairman. When I use the term incompetence and other 
terms, I feel very strongly. And I have felt this for a long 
time, long before you came to the BIA. I think there are parts 
of the BIA that are completely dysfunctional. I don't know why. 
I have not gone out to be able to visit with a lot of these 
employees. But there is something in that system that just 
seems dysfunctional to me.
    So you have been in place a relatively few number of 
months. I want you to succeed. Our point in calling you up here 
and hearing the stories is not to hope that you fail, but it is 
to hope that you succeed and to have you hear first hand things 
that just cannot be allowed to continue. Either we are going to 
have an agency that works, or maybe we need some sort of 
dramatic wholesale change. Maybe you take the agency apart, get 
rid of it, start a new agency someplace with new people. I 
don't know. But somehow, this has to be working.
    It is not just in this area. It is in area after area after 
area we find that the work hasn't been done that is just basic. 
I mean, I went to graduate school and got an MBA and I am a 
slave to a chart board. I want to diagram everything. I want to 
organize everything. But the fact is then I see that after all 
these years there is not even a system that will tell you, as 
Assistant Secretary, how many applications are pending on the 
land-into-trust system. Because each region is handling it 
differently, we don't necessarily have a collection mechanism 
that we are confident of. Boy, you know, it is a herculean task 
that you face to try to fix this.
    Again, I want you to succeed and I supported your 
nomination because you have all of the capability of 
succeeding, in my judgment. But you are running an agency that 
I think is very resistant to change. I hope the word goes out 
to everyone in that agency. We admire the people who work hard 
and try to do a good job. I am sure you have a lot of employees 
that wake up every day that are passionately committed to the 
mission, and God bless them. We thank them. But whoever is 
sitting on all these things and not doing their job, let me 
have a few other words for them. I hope you will as well. But 
let's fix all of this.
    I want to call you back in six months, and Senator 
Murkowski and I would like to evaluate in six months what 
progress has been made, and how will tribes and others have 
some assurance that when their applications go into this deep 
abyss somehow that someone will actually have it, work it, and 
make a judgment about it. I hope that you will work with us, 
work with the Committee, Mr. Artman, to achieve those results.
    Now again, don't leave here despondent about this hearing. 
Leave here I hope with the mind set that this hearing is a very 
constructive charge to an agency that has to improve. You are 
new enough to make sure that happens. Is that something you 
feel good about?
    Mr. Artman. I do, Mr. Chairman. Thank you. It wasn't too 
long ago that I would have been sitting down here. So I can 
certainly understand what my fellow panelists are feeling and 
who they represent and what they are feeling. I took this job 
not only because the President asked, but when the President 
asked, I thought this was something that we could leave behind 
as a good legacy for him as well.
    The Chairman. Senator Murkowski?
    Senator Murkowski. No, but Mr. Chairman, I really 
appreciate you adding that last comment, because I think it 
must be very difficult to come and listen and, as you say, 
having been on the other side, feel the pain, if you will. It 
is a very difficult task, but I think part of our frustration 
here is, as it was pointed out, is that so many of these are 
not independent problems, whether it is the problems with the 
land appraisals, with the probates, with the EIS, with the 
Indian reservation roads. They are connected in the sense that 
you have a level of oversight from an agency that is 
struggling.
    Maybe we need to do more directly with you and the agency 
to see that improvement. But we know that with every delay, it 
is not just the number of appraisals that are in the backlog. 
It has an impact to families, to communities, and our task is 
to figure out how we resolve the backlogs so that these 
families and these communities can move forward. So we will 
work with you.
    The Chairman. Thank you very much.
    Mr. Bigelow, did you want add a final comment?
    Mr. Bigelow. Yes, I did, Mr. Chairman. I first of all want 
to thank you for the opportunity that this has presented for us 
to have our issue heard. I would also like to be on that list 
of those invited back so I could testify on the positive 
aspects of what has occurred from this action here today. So if 
the opportunity presents itself, Mr. Chairman, I would just 
present that to you.
    The Chairman. Mr. Bigelow, that sounds like a clever 
challenge.
    Mr. Bigelow. Thank you, sir.
    [Laughter.]
    The Chairman. Are you a lawyer?
    Mr. Bigelow. No, sir. I am a 12th grade educated high 
school guy who is trying to make his way in life.
    The Chairman. But pretty clever.
    Mr. Bigelow. Thank you.
    The Chairman. We will invite you back.
    Mr. Bigelow. Thank you, sir.
    Mr. Rhodes. Mr. Chairman, may I make a comment?
    The Chairman. Yes. Governor, do you wish to react?
    Mr. Rhodes. With regards to a possible solution, the Navajo 
Nation has a Federal statutory provision under 25 U.S.C. 415(e) 
that grants the tribe authority to review and approve a wide 
variety of on-reservation leases upon issuance of tribal 
regulations approved by the Secretary. The community is 
interested in seeking a similar provision, and we believe that 
the Committee might view this provision as a potential solution 
for all Indian Country. We look forward to working with your 
staff in developing such legislation. Thank you.
    The Chairman. Governor, thank you very much.
    Mr. Artman, I am not suggesting you have to move into this 
building, but I am suggesting that you ought to fix it so that 
tribe can lease this building.
    Thank you very much.
    This hearing is adjourned.
    [Whereupon, at 10:55 a.m., the Committee was adjourned.]












                            A P P E N D I X

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                 
            Written Questions Submitted to Carl J. Artman *
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    * Responses to written questions were not available at the time 
this hearing went to press.
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Backlogs
    Question 1. What is the current backlog with land-into-trust 
applications (both on and off reservation); environmental impact 
statements; appraisals; and commercial lease approvals?

    Question 2. Why is there a backlog with land-into-trust 
applications (both on and off reservation); environmental impact 
statements; appraisals; and commercial lease approvals?

    Question 3. How many vacancies currently exist at the Department 
for positions that are involved in the approval of land-into-trust 
applications (both on and off reservation); environmental impact 
statements; appraisals; and commercial lease approvals?

    Question 4. What is the Department doing to address the backlogs 
that exist?

Land Into Trust

    Question 5. How does the BIA track the various land-into-trust 
applications? Is there a system in place that allows you to determine 
the status of any application that is pending in any Agency or Regional 
or Central office of the Department?

    Question 6. Does any tracking system include any timelines, time 
targets or other measurement tools to ensuring that an application is 
being timely processed?

    Question 7. You testified that there are 1,211 pending land into 
trust applications, but that 1,100 are not yet ripe for decision. Why 
are these 1,100 applications not ready for a decision?

    Question 8. What is the process by which off-reservation land-into-
trust applications are processed at the Department?

    Question 9. You testified that regarding applications for off-
reservation land-into-trust applications, there are currently 37-43 
applications pending here in the Central Office, and that all that is 
left to do is for you or the Secretary to make a final decision on 
whether to approve them. What is taking so long to make those decisions 
and when can decisions on these applications be expected?

    Question 10. Some tribal leaders have informed the Committee that 
Associate Deputy Secretary, Jim Cason, has made statements on several 
occasions to tribes asking why tribes want the Department to take land 
into trust for them when the Department ends up mismanaging the land 
and being sued by tribes for the mismanagement. Is this the view of the 
Department and BIA towards tribal land-into-trust applications?

    Question 11. You testified that regulations governing land-into-
trust applications for off-reservation gaming have been finalized and 
are pending final approval by the Administration before being published 
in the Federal Register. When will these regulations be published? Do 
you believe these regulations will help relieve the backlog?

    Question 12. The Committee was informed that the Department sent 
letters to tribes informing them that Interior is implementing a new 
process for considering land-into-trust applications that involve 
gaming. Can you describe this policy and how it is being implemented?

    Question 13. What is your view about the role local jurisdictions 
(cities, counties) should play in the land acquisition process--either 
for gaming or non-gaming purposes? (Senator Feinstein)

    Question 14. In your view, what are the parameters that determine a 
tribe's historical connection to land sought to be placed in trust? 
(Senator Feinstein)

    Question 15. Because of the time and expense involved in the effort 
to acquire new lands for casino projects, do you think that the 
Department or the NIGC should first determine whether particular lands 
are ``Indian lands'' under section 4 of IGRA, before the Department 
proceeds with a fee to trust application and the related NEPA process? 
(Senator Feinstein)

    Question 16. When there is no time deadline, when, if at all, is an 
official required to make a decision on a completed application to take 
land into trust? Is there any requirement that the decision on a land-
into-trust application be made in a reasonable time? (Senator Schumer)

    Question 17. It appears that significant delay will serve to 
increase the cost of any project, thereby having the ultimate effect of 
making the project economically unsound. What effects might significant 
delays in decision making have on the costs of a project? (Senator 
Schumer)

    Question 18. The St. Regis Mohawk Tribe of New York has submitted 
an application to have 30 acres of land taken into trust. It has 
completed all of its paperwork, enjoys broad support in its region and 
from the State, and in fact is the only tribe to have completed the 
two-part determination process under Section 20 of the Indian Gaming 
Regulatory Act. It is simply waiting for a final decision to be made. 
However, the Department of the Interior has failed to make a decision, 
or to indicate a timeline for such. Is it, under these circumstances, 
appropriate it for DOI to defer the decision without approving or 
denying? What requirements are imposed on the Department with respect 
to acting on an application? Can it fail to act on an application 
indefinitely? (Senator Schumer)

Environmental Impact Statements

    Question 19. How many Draft Environmental Impact Statements are 
pending at the Department? How long have these been pending and when 
will decisions be made on them?

    Question 20. The Committee was informed that the Department has an 
internal policy that any Draft Environmental Impact Statements that are 
over a year old are ``stale'' and will need to be updated and reviewed 
further before the Department will issue them for public review and 
comment. Is this true? If so, what internal policies exist to ensure 
that these Draft Environmental Impact Statements are issued within a 
year?

    Question 21. What is the Department's obligation to act in a timely 
manner regarding the NEPA process? Does the Department have the 
authority to delay ministerial actions, as it has delayed issuing the 
Notice of Availability on the environmental impact statement submitted 
with the application of the Stockbridge Munsee Tribe? (Senator Schumer)

                                  
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