[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.
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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.
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\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.
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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)