[Senate Hearing 110-475]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-475

        THE STATUS OF BACKLOGS AT THE DEPARTMENT OF THE INTERIOR

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

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 22, 2008

                               __________

         Printed for the use of the Committee on Indian Affairs









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                      COMMITTEE ON INDIAN AFFAIRS

                BYRON L. DORGAN, North Dakota, Chairman
                 LISA MURKOWSKI, Alaska, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            TOM COBURN, M.D., Oklahoma
DANIEL K. AKAKA, Hawaii              JOHN BARRASSO, Wyoming
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
      Allison C. Binney, Majority Staff Director and Chief Counsel
     David A. Mullon Jr., Minority Staff Director and Chief Counsel





























                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 22, 2008.....................................     1
Statement of Senator Barrasso....................................     5
Statement of Senator Dorgan......................................     1
Statement of Senator Murkowski...................................     4

                               Witnesses

Artman, Hon. Carl J., Assistant Secretary for Indian Affairs, 
  U.S. Department of the Interior................................     5
    Prepared statement...........................................     7
Chicks, Robert, Vice President for the Midwest Region, National 
  Congress of American Indians (NCAI); President, Stockbridge 
  Munsee Band of Mohican Indians.................................    10
    Prepared statement with attachments..........................    11
Nash, Douglas, Director, Institute for Indian Estate Planning and 
  Probate, Seattle University School of Law......................    20
    Prepared statement...........................................    22
Svanda, Gary, Council Member, City of Madera, California.........    17
    Prepared statement...........................................    19

                                Appendix

Bigelow, Frank, Board of Supervisors, County of Madera, letter, 
  dated May 22, 2008.............................................    42
Rhodes, William R., Governor, Gila River Indian Community, 
  prepared statement.............................................    39





















 
        THE STATUS OF BACKLOGS AT THE DEPARTMENT OF THE INTERIOR

                              ----------                              


                         THURSDAY, MAY 22, 2008


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:31 a.m. in room 
562, Dirksen Senate 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 
morning. This is a hearing of the Committee on Indian Affairs 
in the United States Senate. It is an oversight hearing to 
follow up on the status of the backlogs at the Department of 
the Interior.
    Last October, the Committee held a hearing to examine the 
backlogs in five areas at the BIA: land into trust 
applications; environmental impact statements; probate; 
appraisals; and lease approvals.
    As we heard from witnesses last fall, these are issues that 
greatly impact the ability of tribes to develop their land and 
develop their communities. Delays in the processes at the BIA 
impede the ability of tribes to provide housing, economic 
development, and essential Government services to their 
members.
    These delays can also impact the larger communities on 
Indian reservations. What the Committee has learned is that 
there are significant delays in most of these areas. There were 
1,211 land into trust applications pending at the Department. 
Some were filed over 20 years ago. Every region of the BIA had 
a backlog in appraisals, with the largest backlog being in 
Alaska.
    At the hearing, the Department could not provide us with 
any specific numbers on pending appraisals, environmental 
impact statements, or commercial leases. The Committee also 
learned at the hearing last fall that there were no tracking 
systems and no consistent standards being implemented for most 
of these matters.
    Indian probates were the only matter where the Department, 
the BIA, had a comprehensive tracking system to monitor the 
performance of each case. However, this apparently was because 
the Department hired outside contractors to handle Indian 
probates.
    The state of affairs at the Department last October was, in 
my view, not at all acceptable to any of us. Assistant 
Secretary Carl Artman described it best when he said it was 
``creating havoc for the tribes.'' Though it does create havoc, 
more than that it affects the lives of thousands and thousands 
of American Indians.
    Let me provide an example of how the Department's delays 
are impacting the Indian community. I showed this example last 
fall, but I think it illustrates my point. Last September, the 
Department published its decision to take lands into trust for 
the Shakopee Indian community in Minnesota. The Tribe had 
waited 11 years for that decision.
    I have two photographs that will show the impact of that 
delay. Photograph one shows what the tribal and surrounding 
land looked like in 1997--that is the year the tribe submitted 
its application to the Interior Department. The red outline 
describes the land the Shakopee Tribe was attempting to take 
into trust.
    The second chart will show you how the tribal and 
surrounding land looked in 2005. You can see that the 
surrounding land has been substantially and intensively 
developed. A lot of development has occurred on the non-Indian 
land, but almost no development has occurred on Indian land 
because the Department had not made a decision on the tribe's 
application. Again, look at that. That tribe wanted the 
opportunity to develop its land; it submits a request, an 
application, and it sits 11 years without a decision.
    Meanwhile, others are developing all around that land, and 
this tribe is, in my judgment, cheated of an opportunity to 
develop its land. The Shakopee Tribe is a fairly wealthy tribe, 
but you can see the Department's failure prohibits even that 
tribe from developing its surrounding communities.
    Last fall, I made two points: The Department needed to 
become more transparent with its processes so we could 
understand what it is doing and it needed to expedite its 
decision-making. We are not trying to force the BIA to make 
specific decisions. That is, we are not describing to them what 
kind of decisions they should make, but we are insisting that 
they expedite decision-making.
    I know that Assistant Secretary Carl Artman took my words 
to heart, and the words of my colleagues on this Committee. My 
staff has been following this matter since last fall and I 
believe some progress has been made. But it is clear there 
remain many obstacles that we will talk about today.
    As many of you know, Assistant Secretary Artman is now 
going to be leaving his post, effective tomorrow. I am terribly 
disappointed by that. I have expressed that disappointment 
directly to Mr. Artman and also to the Secretary of the 
Interior. Mr. Artman was the third Assistant Secretary for 
Indian Affairs under this Administration and the third to 
resign. For two years during this Administration, there was no 
Assistant Secretary. Now, I wonder how long it will take to get 
another Assistant Secretary.
    I think this is undermining the interests of Indian tribes 
across this Country, and I am very upset about it. I don't 
understand it at all. This Committee, as its first action, took 
a lot of time to make sure Mr. Artman, was confirmed because 
that position had been vacant for two years. It ultimately 
required a roll call vote on the Senate Floor, but we finally 
got it done.
    In light of Mr. Artman's imminent departure, it seemed 
appropriate to invite the witnesses from last fall's hearings 
to come back and provide this Committee with a status report on 
what is happening with the backlog. I know that two of the 
previous witnesses were not able to be with us today: Ron His 
Horse Is Thunder, who is Chairman of the Standing Rock Sioux 
Tribe; and Governor William Rhodes from the Gila River Indian 
Community in Arizona. Governor Rhodes has submitted written 
testimony that describes what has happened on his reservation 
since last fall.
    I want to mention one additional point. On Sunday late 
afternoon about 4:30 or 5 o'clock, I was in a van driving north 
of Dickinson, North Dakota, about 50 miles north of Dickinson 
to an oil rig in the Bakken Shale.
    In the Bakken Shale formation, which the USGS has said 
there is now estimated to be 3.6 billion to 4.3 billion barrels 
of recoverable oil, the largest assessment they have done 
anywhere in the United States in the lower 48. So there is and 
there is going to be a lot of oil activity in that region of 
western North Dakota and eastern Montana.
    About 4:30 or 5 o'clock last Sunday afternoon, I was 
driving 50 miles north of Dickinson with someone who is an 
expert in these areas, taking me to see the Bakken Shale rig. 
These rigs go down 10,000 feet, make a big curve, and drill out 
10,000 feet. It is very sophisticated drilling. Ten thousand 
feet below, they are trying to find a 100 foot seam of shale, 
and they want to divide that seam into thirds, and they want to 
be drilling in the middle third of a 100 foot seam 10,000 feet 
down, and 10,000 feet out.
    This person said to me there is something unusual going on, 
however. He said in the central area of North Dakota, where 
there is unbelievable development, we have close to 80 oil rigs 
right now and it is very aggressive, and there are many more 
rigs promised in the weeks ahead. There is almost no drilling 
on the Indian reservation, which is right smack dab in the 
middle of it all!
    There is drilling all around the reservation, wells with 
1,800 barrels a day, 1,000 barrels a day, but on the Indian 
reservation there is virtually no activity, almost none. It is 
unbelievable. They, too, are being cheated once again. I asked 
him why. Well, because you have to go through 100 hoops, he 
answered. It starts at the BIA and then goes to BLM. The fact 
is, these approvals are not forthcoming.
    So, in an area that is prime development for these oil 
wells, which are popping up in every direction around that 
Indian reservation, this community is not able to enjoy the 
benefits. It is not because the folks on that reservation don't 
want it to happen, I guarantee you.
    But again Sunday night, as I was taking a look at all that, 
it just makes me furious. Once again, the bureaucracy 
intervenes to decide others can enjoy this opportunity, can 
participate in it, can benefit from it, but American Indians 
don't quite have that same opportunity.
    That is why we held a hearing last fall, and it is why we 
are holding another hearing now to find out what on earth has 
happened since then. Can we finally rely on a BIA that starts 
to get a few things done, instead of having to wait a dozen 
years or more to even review and then give approval to some of 
these requests?
    We have votes starting at 11:30. We only have four 
witnesses. My hope is we will finish this in an hour and a 
half. I appreciate our Vice Chairman, Senator Murkowski is 
here, and Senator Barrasso.
    Senator Murkowski, would you like to make an opening 
statement?

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

    Senator Murkowski. Thank you, Mr. Chairman.
    I appreciate the opportunity for a follow on. It seems that 
so often around here we will have Committee meetings where we 
have an opportunity to ask the tough questions. Sometimes we 
get full and complete answers. Other times, we are told we will 
get back with you. Oftentimes when it is something where we are 
trying to find out what is the problem of the delays, what can 
we be doing better, and we get some good suggestions that come 
out of the Committee. But more times than not, we don't come 
back to you in a Committee setting and say, so, how are you 
doing, and how are we doing, and together how are we making 
things better for the process.
    So I appreciate the Chairman's initiative in calling you 
back, and I appreciate your return appearance. We know that 
while the Department continues to have problems with the 
backlogs in the areas of the fee to trusts and the leasing 
approvals and the EISs, I have heard that there has been some 
good progress. I am looking forward to hearing some of the 
specifics on that this morning.
    Mr. Secretary, last time you were here, you assured us that 
the current probate backlog would be eliminated by Fiscal Year 
2009. I would like to know whether you believe that estimate 
still holds true.
    The Chairman has mentioned some of the delays that have 
been caused, that play out, if you will, in the use or 
development of Indian lands for minerals and energy. Again, 
this is an area where we have just not seen a level of 
satisfaction. So if there are any updates or any good news that 
you can share, or any ideas as to how we can make the system 
better, we would certainly welcome that.
    Mr. Artman, I want to take just a moment to thank you for 
your tenure as Assistant Secretary for Indian Affairs. We know 
that the backlogs that we have been looking at, they are not 
your fault. They were certainly there prior to your time. I 
think I was one of many that was very hopeful that you might 
just be the one that would make many of these problems 
disappear.
    I am sure that you have had a positive impact on some of 
these troubling issues and I appreciate your efforts. I am 
disappointed that you are leaving, but we understand what goes 
on out there. So I just wanted to have an opportunity this 
morning to thank you for your willingness to serve.
    With that, Mr. Chairman, I look forward to the comments.
    The Chairman. Senator Murkowski, thank you very much.
    Senator Barrasso?

               STATEMENT OF HON. JOHN BARRASSO, 
                   U.S. SENATOR FROM WYOMING

    Senator Barrasso. Thank you very much, Mr. Chairman.
    While I don't have those wonderful pictures that you 
showed, they very clearly demonstrate the delays and the 
problems that it has caused. I have the exact same experience 
when I talk to my friends. These issues are of great importance 
to the folks of the Eastern Shoshone and the Northern Arapaho 
Tribes in Wyoming. In case after case, whether it is fee to 
trust; whether it is NEPA analysis; whether it is probate, 
where the delays are paralyzing the realty system; whether it 
is the leases, and when you look at that, it seems outdated and 
inefficient; whether it comes down to appraisals that are 
inefficient and slow. And there is just a list of problems that 
we are having in Wyoming.
    It really does seem that the government's role in this 
process is filled with red tape, with administrative barriers. 
I know there is a lot of hard work going on at the local level 
at the Wind River Reservation. I see those efforts being lost 
because of a massive bureaucratic system.
    So it is very important that the Bureau's administrative 
process be reformed to remove barriers to the development that 
all of us need with our tribes. So I look forward to discussing 
the opportunities for these reforms with you today.
    Thank you, Mr. Chairman.
    The Chairman. Senator Barrasso, thank you very much.
    We will have four witnesses. We will begin with Assistant 
Secretary Carl Artman; we will conclude with the other three 
witnesses. I think, with the permission of the other Members, 
we will have all four witnesses testify first. Mr. Artman, are 
you able to stay?
    Mr. Artman. Yes, of course.
    The Chairman. All right. Let me thank you for being here, 
and we thank you for your work. Let me express again my 
disappointment that you are leaving, but I do appreciate the 
work that you have done. I hope your report is a good one.
    Mr. Artman. Thank you.

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

    Mr. Artman. Good morning, Mr. Chairman, Madam Vice 
Chairwoman, Senator. It is a pleasure to be back here today as 
a follow-up to this Committee's oversight hearing last October 
on land into trust applications, environmental impact 
statements, probates, and appraisals.
    My statement today will focus on our accomplishments since 
the last hearing. I would like to submit the full statement for 
the record, with your permission.
    With regards to probate cases, I am pleased to report that 
we are still on track to eliminate the probate backlog. Our 
office is currently tracking the probate cases with our ProTrac 
system, which currently tracks 58,600 cases of which 16,336 are 
moving through the probate process, and 42,264 have either been 
distributed or closed, or have determined to have no trust 
assets requiring a Federal probate process.
    In October, we stated that 98 percent of our backlog cases 
were ready for adjudication and distribution of assets. As of 
April 30, 2008, 99 percent of our backlog cases have completed 
the case preparation phase and are ready for adjudication and 
distribution of assets. Eighty-eight percent of the backlog 
cases have been closed.
    These numbers demonstrate that the BIA is still on track to 
clear the probate backlog by the end of 2008, and by 2009 the 
BIA staff should be able to handle the probate cases without 
any further help from outside contractors.
    With regards to the acquisition of land into trust for non-
gaming purposes, significant progress has occurred in the land 
into trust requests. We have implemented a fee to trust 
tracking system. We prioritized applications and completed 62 
percent of our identified priority applications, and we are on 
track for completing the remaining priority applications. 
Further, as of April 28, 2008, we received 1,489 total 
requests. Of those requests, 215 applications were prioritized 
last fall in October, 2007 because the 215 applications were 
determined to have sufficient information for us to actually 
proceed with the regulatory procedures of bringing that land 
into trust.
    Of the 1,489 requests received to date, 89 have been 
completed, 266 have been determined, and the only difference 
between those two is title work, and 90 of them have been 
withdrawn. Six hundred and thirteen pending requests lack 
sufficient information for us to proceed with the application. 
Of the remaining 363 land into trust applications, 178 
applications are waiting on local government comments or tribal 
responses to those questions; 45 are undergoing a NEPA 
analysis; and 35 are being surveyed for hazardous material 
impacts. One hundred and five are being reviewed to determine 
if there are any title-related issues that must be resolved 
before a land into trust determination can be made.
    It is important to highlight that this detailed breakout 
does not include the 68 gaming and gaming-related applications 
in the April 28th inventory. The proportion of applications in 
the NEPA compliance stage has decreased by 50 percent, while 
the proportion of applications in the hazmat survey has 
decreased by 73 percent. As of April 28th of this year, 
determinations have been made for 128, or 62 percent, of these 
applications. We have also made determinations on an additional 
277 applications. The 128 applications that I referred to, that 
is 128 of the 215 prioritized applications.
    While in previous years approved transfers of land into 
trust were nominal, I am proud to say that under my tenure in 
office we have been able to take approximately 53,027 acres of 
land into trust. In addition, we released the fee to trust 
handbook earlier this week which will promote consistent 
processes and best practices in each region.
    The BIA currently has no off-reservation files pending at 
the central office for review. This is a reduction of 42 
applications that we had in October, 2007. All of the 
applications have been returned to the regional office with 
recommendations, and the final actions will take place or have 
taken place at that level.
    Moving on to EISs, at this time there are currently no DEIS 
draft environmental impact statements ready for publication. 
The BIA is current on its processing of all EISs and in its 
publication of them for the Federal Register. This backlog has 
been eliminated.
    With regards to appraisals, currently the OST has 2,564 
appraisals pending. Of this number, approximately 1,300 can be 
disposed of rather quickly. The Department is reviewing our 
appraisal process and the method of recording the appraisal 
backlog. Through the use of mass appraisal technology and 
consistency of the method of reporting the backlog, we believe 
that this number can be reduced significantly in the near 
future and we have been working closely with OST to do so.
    With regards to lease approvals, currently we have 93 
commercial leases pending approval. That is down from 300 in 
October of 2007. In our 12 regions, we have three regions with 
no backlog at all: the Southern Plains Region, the Eastern 
Region, and the Eastern Oklahoma Region. The remaining regions 
have leases that have been pending for over 30 days.
    This concludes my testimony, and I will be happy to answer 
any questions that you may have. Thank you.
    [The prepared statement of Mr. Artman follows:]

  Prepared Statement of Hon. 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 back here today as a follow up to 
this Committee's October 4, 2007 oversight hearing on land into trust 
applications, environmental impact statements (EIS), probates, and 
appraisals. Since my previous testimony included an overview of each 
item and the procedures that we follow as set forth in statute and 
regulation, my statement will focus on our accomplishments since the 
last hearing.
Probate
    We are still on track to eliminate the probate backlog. \1\ As we 
mentioned in our October 4, 2007, testimony, there are four phases for 
the completion of a probate case. Using the ProTrac system, 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. The ProTrac system contains 58,600 cases of which 
16,336 are currently moving through the probate process as of April 30, 
2008 and 42,264 have either been distributed and closed or determined 
to have no trust assets requiring a Federal probate.
---------------------------------------------------------------------------
    \1\ The backlog is defined as 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.
---------------------------------------------------------------------------
    In October, 98 percent of our backlogged cases were ready for 
adjudication and distribution of assets. As of April 30, 2008, 99 
percent of the backlog cases have completed the case preparation phase 
and are ready for adjudication and distribution of assets. Eighty-eight 
percent of the backlog cases have been closed.
    These numbers demonstrate that the BIA is still on track to clear 
the probate backlog by the end of 2008. By 2009, BIA staff should be 
able to handle the probate cases without help from outside contractors.
Trust Land Acquisitions for Non-Gaming Purposes
    Significant progress has occurred in processing land-into-trust 
requests. We have implemented a fee to trust tracking system, we 
prioritized applications, completed 62 percent of identified priority 
applications, and are on track for completing the remaining priority 
applications.
    As stated in the October 4, 2007 testimony, 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''. The Bureau is 
further guided by the ``151'' regulations (25 CFR Part 151) that govern 
land acquisition. The Secretary applies his discretion under these 
authorities, unless the acquisition is legislatively mandated.
    There are two primary types of land acquisitions under this 
category which are processed for Indian landowners by the Bureau of 
Indian Affairs (BIA): on-reservation; and off-reservation. The number 
of current applications fluctuates as we continually receive new 
requests to bring land into trust and process current applications.
    Regulatory procedures require environmental and hazardous material 
surveys to determine the status of lands for which the Secretary is 
requested to assume a trust responsibility. Environmental analysis is 
governed by the National Environmental Policy Act (NEPA). NEPA analyses 
help us make sound land transfer and management decisions and involves 
the time and effort proportional to the issues raised by a particular 
land transfer. Depending on the type of environmental review done, this 
process can take months or years. A Categorical Exclusion (CE) is 
available for meeting NEPA responsibilities when there has been 
previous environmental documentation or there will be no change in land 
use for compliance with NEPA. This allows us to proceed with an 
efficient NEPA environmental analysis.
    As of April 28, 2008 we have received 1,489 requests, \2\ including 
the 215 applications that were prioritized in October 2007. Of the 
1,489 requests received to date, 89 have been completed, 266 have been 
determined and 90 have been withdrawn. 613 pending requests lack 
sufficient information for us to proceed with the applications. Of the 
remaining 363 land-into-trust applications:
---------------------------------------------------------------------------
    \2\ These applications were either opened after October 10, 2007 or 
were in our possession as of that date and have not yet been completed.

   178 pending applications are waiting on local government 
---------------------------------------------------------------------------
        comments or tribal responses to those questions;

   45 are undergoing NEPA analyses;

   35 are being surveyed for hazardous materials impacts; and

   105 are being reviewed to determine if there are title-
        related issues that must be resolved before a land-into-trust 
        determination can be made.

    716 of the pending non-prioritized requests are for land located 
within, or contiguous to, the tribe's reservation boundaries and are 
non-gaming. The remaining requests were either submitted by 
individuals, located off-reservation, or by tribes with no historical 
reservation lands, or were for gaming or gaming-related purposes.
    In October 2007, 215 requests were determined to have sufficient 
information for us to proceed with regulatory procedures for bringing 
land into trust. At that time, 26 of the 215 priority land-into-trust 
applications were in the NEPA Compliance stage and 66 were in the 
Hazardous Material Survey stage. As of April 28, 2008, 10 of the 
remaining 79 undetermined prioritized applications were waiting on NEPA 
analyses and an additional 12 were undergoing Hazardous Material 
surveys. The proportion of applications in the NEPA Compliance stage 
has decreased by 50 percent, while the proportion of applications in 
the Hazardous Material Survey stage has decreased by 73 percent. As of 
April 28, determinations have been made for 128, or 62 percent, of 
these applications. We have also made determinations on an additional 
227 other applications and have approved the transfer of approximately 
40,027 acres of land into trust status.
    While applications for off-reservation lands must go through a 
review before Central Office before they are returned to the Regional 
Offices for decision-making, this review is no longer a logjam for 
pending requests. The BIA currently has no off-reservation files 
pending at Central Office for review. We had 42 applications in 
October. All applications have been returned to the Regional offices 
with recommendations and the final actions will take place at the 
regional level.
Environmental Impact Statements
    In our October 4, 2007, testimony, we provided extensive comments 
on the Environmental Impact Statement process whereby an Indian tribe 
submits a request to the BIA to fund, issue a permit for, or approve an 
undertaking. When such a request is received, the BIA reviews it to 
determine whether it qualifies for a CE or Finding of No Significant 
Impact (FONSI) under NEPA or whether an EA or EIS is needed to help 
inform a federal decision. The most common BIA ``federal actions'' are 
lease approvals and transfers of land into or out of trust status.
    In that testimony, we stated that there are three occasions during 
the EIS process that 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.'' At this time, there are no pending DEIS ready for 
publication.
    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. Additional time may be 
required to coordinate and meet other agency needs and requirements on 
the EIS. Delays also occur when the Federal EIS is stalled because the 
tribe alters the project plan or scope.
    The BIA is current on its processing of all EISs and in its 
publication of them in the Federal Register. This backlog has been 
eliminated.
Appraisals
    In prior testimony, we stated that 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, the OST has 2,564 appraisals pending. Of this number 
approximately 1,300 can be disposed of rather quickly. DOI is reviewing 
our appraisal process and the method of recording the appraisal 
backlog. Through the use of mass appraisal technology and consistency 
of the method of reporting backlog, we believe this number will be 
reduced significantly in the near future.
Lease Approvals
    In October 2007, we provided comments on commercial development 
leases and stated they may involve tribal land, allotted land, or both. 
These leases are typically negotiated by representatives of the 
parties. As a result, the appraisal needed to establish an acceptable 
``Minimum Rent'' and the documentation needed to comply with NEPA, are 
often not obtained by the lessee until after the basic lease terms have 
been agreed upon. We recommend that 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.
    Currently, we have 93 commercial leases pending approval. In our 
twelve Regions, we have three Regions with no backlogs: the Southern 
Plains Region, Eastern Region and the Eastern Oklahoma Region. The 
remaining regions have leases that have been pending for over 30 days 
backlog as follows: Alaska Region--1, Navajo Region--1, Midwest 
Region--1, Great Plains Region--8, Rocky Mountain Region--8, Pacific 
Region--9, Western Region--19, Northwest Region--22, and the Southwest 
Region--24.
    This concludes my testimony. I will be happy to answer any 
questions the Committee may have. Thank you.

    The Chairman. Mr. Artman, thank you very much for your 
testimony.
    Next, we will hear from Robert Chicks, who is the NCAI Vice 
President for the Midwest Region, and President of the 
Stockbridge Munsee Tribe of Mohican Indians.
    Mr. Chicks?

  STATEMENT OF ROBERT CHICKS, VICE PRESIDENT FOR THE MIDWEST 
             REGION, NATIONAL CONGRESS OF AMERICAN 
 INDIANS (NCAI); PRESIDENT, STOCKBRIDGE MUNSEE BAND OF MOHICAN 
                            INDIANS

    Mr. Chicks. Good morning, Mr. Chairman, and thank you for 
inviting NCAI to return and testify today.
    The previous hearing was very important, we think, in 
pushing the Bureau to focus on its fundamental mission in 
managing tribal land transactions, and we hope that this 
hearing will continue in that same direction.
    First, we want to acknowledge Mr. Artman's efforts to 
address the backlog over the last seven months. He made a good 
start in identifying problems and setting priorities. But we 
are concerned that Mr. Artman is now leaving the BIA with so 
much left to be done. I would urge the Senate Committee on 
Indian Affairs to play a strong oversight role in the coming 
months to make sure that this progress continues. Although the 
Bureau has made an effort in addressing backlogs, it is only a 
start. The vast majority of realty transactions are still 
sitting in limbo waiting for action.
    Though Mr. Artman just provided a new set of numbers and 
updated them, the numbers that were shared with the tribes just 
a few weeks ago showed us that there were about 1,310 
applications and that 125 had been decided, and the Bureau was 
claiming progress on about 57 percent.
    The Chairman. What category is that?
    Mr. Chicks. Land to trust applications.
    From our perspective, that is less than 10 percent because 
the great majority of applications have been disqualified as 
incomplete. This might help the Bureau's numbers, but it is not 
any help to the affected tribes.
    The real problem is that there has been no communication 
with the tribes on the status of our applications, and many 
tribes have had applications pending for so long that we really 
doubt if they were even included in the tracking system to 
begin with. For example, as you mentioned, Mr. Chairman, the 
Chairman of the Standing Rock Sioux Tribe testified that his 
tribe had 10 applications for land into trust that had been 
pending since 1992. We contacted the tribe to find out if any 
progress had been made in the last seven months and they told 
us that not only has no progress been made of any kind, but 
they have not been contacted by the Bureau. My own tribe, the 
Stockbridge Munsee, the last time that we had land put into 
trust it took 10 years, and we currently have applications that 
are pending that are more than six years old.
    I have also attached to my testimony a letter from the 
Southern Ute Tribe to the BIA. The Southern Ute Tribe has 20 
pending applications, of which 15 have been pending for more 
than eight years. These types of delays are simply 
unacceptable.
    The Bureau must take next steps and communicate with the 
tribes about pending applications. It also needs to establish 
time frames and a system of accountability for responding to 
our applications. We certainly would like to work with the 
Bureau to make this happen.
    We also have serious concerns that one of the ways the 
Bureau has addressed the backlog was to issue sweeping new 
rules to deny applications. As you know, on January 4th of this 
year, the Department issued a guidance document establishing a 
new rule that land acquisition for gaming is not in the best 
interests of the tribe if the land in question is greater than 
a commutable distance from the reservation. On the same day, 
the Department used its new rule to deny 11 pending 
applications.
    While NCAI does not take a position for or against any 
tribe's application for land into trust for gaming, it is 
extremely important that each tribe has an opportunity for fair 
consideration of its applications. We are gravely troubled by 
the process that Interior used to establish new guidance and, I 
might add, with no consultation as required by law.
    Land into trust is only one area where we have concerns 
about how much actual progress has occurred. Long delays in 
title and leasing have not changed. In particular, we would 
urge the Committee to investigate the status of the TAAMS title 
system and how it is working.
    Finally, we would encourage the Committee to review our 
earlier testimony which contained suggestions for addressing 
the issues in BIA realty. More importantly, the system needs 
more funding and staffing. The backlog of decision-making in 
BIA realty has been a leading concern for tribal leaders for 
many, many years.
    NCAI strongly encourages the Bureau to continue to take 
action in consultation with tribal leadership, and we applaud 
this Committee for pushing this issue so strongly.
    Thank you.
    [The prepared statement of Mr. Chicks follows:]

  Prepared Statement of Robert Chicks, Vice President for the Midwest 
   Region, National Congress of American Indians (NCAI); President, 
               Stockbridge Munsee Band of Mohican Indians
    Chairman Dorgan, Vice Chair Murkowski and members of the Committee, 
thank you for the opportunity to return and testify today on this 
important topic. NCAI provided testimony seven months ago on our 
concerns about the backlog of realty functions at the Bureau of Indian 
Affairs, and the negative impacts on tribes. The Bureau of Indian 
Affairs' core mission is the management and restoration of the tribal 
lands where tribal communities live and govern their own affairs. 
Indian land is critical to tribal economies and cultures. Our testimony 
focused on proposed solutions to improve the performance of the BIA on 
realty functions.
    First, we want to acknowledge Assistant Secretary Carl Artman's 
efforts to address the backlog over the last seven months. We tend to 
view the BIA's backlog problems as systemic--arising from understaffing 
and increasing work loads. We have been impressed with the way that 
leadership can also make a difference. Mr. Artman set priorities, 
managed the available staff and worked to expedite decision making. It 
gives us some optimism about the future that leadership can make a 
difference at the BIA.
    Second, we are concerned that Mr. Artman is now leaving the BIA 
with so much left to be done. The Bureau of Indian Affairs has suffered 
significantly from instability in management during this 
Administration. Mr. Artman is the third Presidential appointee to hold 
the position, he was on the job for only one year, and the position was 
vacant for over two years prior to his confirmation. The NCAI 
leadership has met with Secretary Kempthorne to discuss our concerns, 
and we would urge the Senate Committee on Indian Affairs to play a 
strong oversight role in the coming months.
    Third, although the BIA has made an effort in addressing the 
backlogs, it is only a start. The BIA Realty office has developed some 
management tools so that they can track the progress on realty 
transactions. That is a good development, but the vast majority of 
realty transactions are still sitting in limbo waiting for action.
    We also have questions about the methods that the BIA is using to 
show progress on the backlog. For example, the following numbers on 
land to trust requests come from a BIA Realty presentation in March:

        Where We Started--October 2007

   1,310 pending land-into-trust requests representing 
        1,070,000 acres

   217 applications ready to be processed

   Inconsistent procedures

   No accountability

        Where We Are--March 10, 2008

   57 percent (125/217) priority cases decided--Enough 
        information to make a decision

   25 percent (55/217) priority cases complete--Land has been 
        conveyed

   37,368 acres approved for trust status

    This is a funny kind of math. 1,310 applications, 125 have been 
decided, and the BIA claims progress on 57 percent. The problem is that 
the great majority of applications have been disqualified as incomplete 
or not ready to be processed. This may help the BIA's numbers, but it 
is no help at all to the affected tribes. There has been no 
communication with the tribes on the status of their applications; 
there are no guidelines on what is a complete application; and there 
has been no progress at all on 90 percent of the tribal applications. 
Even worse, a huge number of applications are now categorized as 
incomplete and will see no action by the Bureau of Indian Affairs. We 
are also not confident that the 1,310 number is accurate. Many tribes 
have had applications pending for so long that they were unlikely to be 
included in the tracking system.
    The BIA must take the next steps and communicate with the tribes 
about pending applications to identify incomplete information and about 
the status of applications that may not be in the system. The BIA also 
needs to establish time frames and a system of accountability for 
responding to applications. We would like to work with the BIA to make 
this happen, but our overall point is that the BIA is just getting 
started.
    For example, at the previous hearing on this topic Chairman Ron His 
Horses Thunder from the Standing Rock Sioux Tribe testified that his 
tribe has ten applications for land into trust that have been pending 
since 1992. We contacted the Standing Rock Tribe to find out if any 
progress has been made in the last seven months. They report that there 
has been no progress of any kind, nor have they been contacted by the 
BIA about the status of their applications.
    Standing Rock is just one of many examples. At Stockbridge Munsee, 
the last time we had land put into trust it took ten years. We 
currently have applications pending that are over six years old. I am 
also attaching a letter from the Southern Ute Tribe to the Bureau of 
Indian Affairs. The Southern Ute Tribe has 20 pending applications, of 
which 15 are have been pending for over eight years. They have received 
no action since they sent this letter to the BIA well over a year ago. 
These types of delays are unacceptable and must be addressed by the 
Bureau of Indian Affairs.
    We also have a serious concern that one of the ways the BIA has 
addressed the backlog was to issue sweeping new rules to deny 
applications. On January 4 of this year, the Department issued a 
document entitled ``Guidance on taking off-reservation land into trust 
for gaming purposes,'' establishing a new rule that land acquisition 
for gaming is not in the best interest of the tribe if the land in 
question is greater than a ``commutable distance'' from the 
reservation. The document justifies this decision by reference to the 
Secretary's discretionary authority to take land into trust under 
Section 5 of the IRA. On the same day, the Department used this new 
rule to deny eleven pending applications.
    NCAI is an organization made up of over 250 tribal governments, and 
we do not have a position for or against any tribe's application for 
land into trust for gaming purposes. However, as a matter of federal 
policy it is extremely important that each tribe has an opportunity for 
fair consideration of their application on its own merits based on the 
laws passed by Congress. We are gravely troubled by the process that 
Interior used to establish new guidance and the manner in which it used 
this new policy to summarily reject so many pending applications. In 
addition, this new policy was created absent consultation and with no 
discussion about its implications for non-gaming acquisitions of land 
under Section 5 of the Indian Reorganization Act (IRA). Indian tribes 
regularly seek to place off-reservation land into trust for purposes of 
economic development, natural resources protection, and cultural and 
religious use. Because of the history of removal and tribal land loss, 
it is not uncommon that these lands are greater than a ``commutable 
distance'' from existing reservations.
    Land to trust is only one area where we have concerns about how 
much actual progress has occurred. Long delays in title and leasing 
have not changed to our knowledge, and we do not have any way of 
assessing the claims that the Department is making about progress. In 
particular we would urge the Committee to investigate the status of the 
TAAMS title system and how it is working. The BIA has made a huge 
investment in TAAMS, and it is the backbone of the entire realty 
system. The BIA claims to have met a number of recent milestones, but 
we do not yet have any independent evaluation of how TAAMS is working, 
whether it will streamline realty processes, and how it interfaces with 
other critical components of the system such as accounts receivable and 
leasing.
    Finally, we would urge the Committee to review our earlier 
testimony with suggestions for addressing the systemic issues in BIA 
Realty. The system desperately needs more financial resources and 
staffing to accompany process improvements. We also believe Congress 
should revisit Title III of S. 1439 from the 109th Congress, which 
would increase tribal control over reservation land management. Indian 
reservations vary widely in their needs for land management services, 
and under these plans Indian tribes would be able to create 
reservation-specific land management plans and allocate the available 
funding according to the needs of that particular reservation.
Conclusion
    The backlog of decision making 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 
these issues, in close consultation with tribal leadership. We thank 
you in advance, and look forward to working with you.
Attachments









    The Chairman. Mr. Chicks, thank you very much.
    Next, we will hear from Mr. Gary Svanda. Mr. Svanda is a 
Council Member of the City of Madera in Madera, California.
    Mr. Svanda, thank you for being here.

   STATEMENT OF GARY SVANDA, COUNCIL MEMBER, CITY OF MADERA, 
                           CALIFORNIA

    Mr. Svanda. Thank you Chairman Dorgan and distinguished 
Members of the Committee. On behalf of the City Council of 
Madera and the Madera County Board of Supervisors, I appreciate 
the opportunity to provide the Committee with an update from 
what was reported to you at the October 3rd hearing on the 
status of the draft environmental impact statement for the 
project proposed by the North Fork Rancheria at a location 
north of the City of Madera in Madera County.
    Before I do that, I would like to acknowledge two important 
political leaders from my area, that being Elaine Bethel Fink, 
the Tribal Chairperson for the North Fork Mono Tribe, and also 
Mary Ann McGovern, the Treasurer of the North Fork Tribe.
    The Chairman. Thank you. We welcome them here.
    Mr. Svanda. I am happy to report that the draft EIS was 
finally published on February 15, 2008. Publication of the 
draft was followed by a 45-day public comment period and a 
public hearing on March 12th. The public hearing received 
considerable local attention and was a very well-attended 
affair. Most striking in my mind was the overwhelming support 
of the project voiced by nearly two dozen current and former 
local officials, and that both supporters and opponents were 
provided an opportunity to sing the praises or voice their 
concerns about the project.
    The BIA's public hearing on the draft EIS was one of more 
than a half dozen opportunities that the public has had to 
weigh in on this project in a formal public setting. Still, it 
was an important step in the Federal process since it was the 
first time since the scoping report back in November, 2004 
where the public could comment directly on the environmental 
review process.
    This is not to say that the local community has not been 
actively engaged in addressing local concerns about the EIS or 
the project. Long before the public hearing on the draft EIS in 
March, the tribe entered into mitigation agreements with the 
County and the City of Madera and the Madera Irrigation 
District. Further, both the city and the Irrigation District 
are serving as cooperating agencies for the EIS.
    I am quite certain that all this public input will result 
in the most thorough environmental review ever prepared as a 
project in the history of Madera. All told, publication of the 
draft EIS was delayed a full year. The Committee is probably as 
interested as we were in understanding this delay.
    Early in January of this year, we learned that the North 
Fork Rancheria's project was caught up in a comprehensive BIA 
review of more than 30 off-reservation requests pending 
nationality. Sometime last year, the Department of the Interior 
developed a new internal policy and then applied that new 
policy to each of the pending requests before publicly 
announcing the new policy in early January. The North Fork 
Rancheria's application was one of only six off-reservation 
requests nationally that were allowed to continue under the 
BIA's new policy because the proposed trust acquisition is 
within a commutable distance of North Fork. Because the tribe's 
proposed development is consistent with planned land use for 
the immediate area around the site, and because the project 
enjoys very strong local support, the BIA found that the tribe 
should be allowed to proceed through the next stages of the 
Federal review.
    Shortly after it announced the new policy, the BIA 
published the draft EIS. As Supervisor Frank Bigelow explained 
at the October 3rd hearing, both the County and the City of 
Madera have strong interest in seeing the Federal process move 
forward. In many ways, the North Fork project has moved from 
being merely a tribal project to a community project, a true 
collective effort, as was clearly evidenced at the public 
hearing.
    Both the city and the county have devoted considerable 
time, energy, and resources in working with the North Fork 
Rancheria to ensure that the proposed project benefits both the 
tribe and the entire community.
    Madera is now also considering annexing land within our 
urban growth boundary near the proposed site and is in 
discussions with other developers who may be willing to invest 
in our community so long as the tribe's project moves forward 
and is able to provide the good-paying jobs and the economic 
engine to jump start our long-stagnant economy. In this way, 
the tribe's project is helping to pave the way for further 
economic growth to our region.
    Finally, this past April, we learned that yet another 
community will benefit from this project under two compacts 
recently signed by Governor Schwarzenegger with the North Fork 
and Wiyot Tribes. Under the compacts, the North Fork Rancheria 
would allocate a portion of the revenues from its resort to a 
State-administered fund that will allow the Wiyot Tribe to 
forego gaming on its environmentally sensitive reservation 
located along the beautiful Northern California coast of 
Humboldt County. Not only does this benefit the environment, it 
also means that the North Fork project will now directly 
benefit nearly 2,300 tribal citizens that comprise the two 
tribes, in addition to the County of Madera, the Cities of 
Madera and Chowchilla, and indeed many other residents of the 
Central Valley and Humboldt County.
    Again, I would like to thank this Committee for your 
efforts in moving the Federal process forward. I would be very 
happy to answer any questions regarding my statement.
    [The prepared statement of Mr. Svanda follows:]

  Prepared Statement of Gary Svanda, Council Member, City of Madera, 
                               California
    Chairman Dorgan, distinguished members of the Committee, on behalf 
of the City Council of Madera and the Madera County Board of 
Supervisors, I appreciate the opportunity to provide the Committee an 
update from what was reported to you at the October 3rd hearing on the 
status of the draft environmental impact statement (EIS) for a project 
proposed by the North Fork Rancheria at a location north of the City of 
Madera in Madera County.
    I am happy to report that the draft EIS was finally published on 
February 15, 2008. Publication of the draft was followed by a 45-day 
public comment period and a public hearing on March 12. The public 
hearing received considerable local attention and was a well-attended 
affair. Most striking in my mind was the overwhelming support of the 
project voiced by nearly two dozen current and former local officials 
and that both supporters and opponents were provided an opportunity to 
sing their praises or voice their concerns about the project. The BIA's 
public hearing on the draft EIS was just one of more than a half dozen 
opportunities that the public has had to weigh in on this project in a 
formal public setting. Still, it was an important step in the federal 
process since it was the first time since the scoping report hearing in 
November 2004 where the public could comment directly on the 
environmental review process. This is not to say that the local 
community has not been actively engaged in addressing local concerns 
about the EIS or the project. Long before the public hearing on the 
draft EIS in March, the Tribe entered into mitigation agreements with 
the County and City of Madera and the Madera Irrigation District. 
Further, both the City and the Irrigation District are serving as 
cooperating agencies for the EIS. I am quite certain that all this 
public input will result in the most thorough environmental reviews 
prepared for any project in Madera's history.
    All told, publication of the draft EIS was delayed a full year. The 
Committee is probably as interested as we were in understanding this 
delay. Early in January of this year we learned that the North Fork 
Rancheria's project was caught up in a comprehensive BIA review of the 
more than thirty off-reservation requests pending nationally. Sometime 
last year, the Department of the Interior developed a new internal 
policy, and then applied that new policy to each of the pending 
requests before publicly announcing the new policy in early January. 
The North Fork Rancheria's application was only one of six off-
reservation requests nationwide that were allowed to continue under the 
BIA's new policy. Because the proposed trust acquisition is within a 
commutable distance of North Fork, because the Tribe's proposed 
development is consistent with planned land use for the immediate area 
around the site, and because the project enjoys strong local support, 
the BIA found that the Tribe should be allowed to proceed through the 
next stages of federal review. Shortly after it announced the new 
policy, the BIA published the draft EIS.
    As Supervisor Frank Bigelow explained at the October 3 hearing, 
both the County and City of Madera have a strong interest in seeing the 
federal process move forward. In many ways, the North Fork project has 
moved from being merely a tribal project to a community project and a 
true collective effort, as was clearly evident at the public hearing. 
Both the City and County have devoted considerable time, energy, and 
resources in working with the North Fork Rancheria to ensure that the 
proposed project benefits both the Tribe and the entire community. The 
City of Madera is now also considering annexing land within our urban 
growth boundary near the proposed site, and are in discussions with 
other developers who may be willing to invest in our community so long 
as the Tribe's project moves forward and is able to provide the good 
paying jobs and economic engine to jump start our long stagnant 
economy. In this way, the Tribe's project is helping to pave the way 
for further economic growth to our region.
    Finally, this past April, we learned that yet another community 
will benefit from this project under the two compacts recently signed 
by Governor Schwarzenegger with the North Fork and Wiyot Tribes. Under 
the compacts, the North Fork Rancheria would allocate a portion of the 
revenues from its resort to a state-administered fund that will allow 
the Wiyot Tribe to forego gaming on its environmentally sensitive 
reservation located along the beautiful Northern California coast in 
Humboldt County. Not only does this benefit the environment, it also 
means that the North Fork project will now directly benefit the nearly 
2,300 tribal citizens that comprise the two tribes, in addition to the 
County of Madera and the Cities of Madera and Chowchilla, and indeed 
many other residents of the Central Valley and Humboldt County.
    Again, I want to thank this Committee for your efforts in moving 
the federal process forward.

    The Chairman. Mr. Svanda, thank you very much for your 
testimony.
    Finally, we will hear from Douglas Nash, Director of the 
Institute for Indian Estate Planning and Probate.
    Mr. Nash, you may proceed. Thank you very much for being 
here.

   STATEMENT OF DOUGLAS NASH, DIRECTOR, INSTITUTE FOR INDIAN 
             ESTATE PLANNING AND PROBATE, SEATTLE 
                    UNIVERSITY SCHOOL OF LAW

    Mr. Nash. Thank you, Mr. Chairman. I appreciate the 
opportunity to be here. Mr. Chairman and Members of the 
Committee, I would like to express my appreciation to Mr. 
Artman as well for the time and work that he has put in, and to 
join the many other who regret his departure from that 
position.
    Mr. Chairman, from anecdotal evidence and personal 
experience, I believe that little has changed since the last 
hearing about eight months ago, at least in terms of the 
backlogs that plague the probate process. It is my prediction 
that little progress will be realized in the future unless the 
Bureau of Indian Affairs and/or Congress takes some decisive 
steps to support the mechanisms that have been created by the 
American Indian Probate Reform Act to proactively address and 
reduce the fractionization of tribe trust lands.
    The backlog in the probate of Indian estates is a multi-
faceted systemic problem with one common denominator: the 
fractionated ownership of trust lands. The sheer number of 
fractionated interests, combined with the current and 
outstanding historic probates, the complexity of those probates 
as measured by the number of undivided interests held by 
individual decedents, the lack of a central and robust land 
title record system that would support timely and accurate 
multi-jurisdictional title reports, and finally the lack of 
estate planning and buy-back resources which have proven 
successful in reducing fractionization and removing interests 
from the probate process are all part of the problem.
    All of these factors contribute to the backlogs in probate 
now and the continuation of backlogs in the future.
    The Probate Reform Act is intended to address the issue of 
fractionation through intestate succession. If fully 
implemented and resourced, the Act will substantially and 
significantly reduce fractionation given time. There are no 
quick fixes to address an issue that has evolved and grown 
exponentially over 120 years.
    The Act's intestacy laws will stop the further 
fractionation of small interests, those of less than 5 percent. 
However, the Act will continue to fractionate all lands greater 
than 5 percent until that highly fractionated threshold of 5 
percent is reached. The new interests will require additional 
management resources and contribute to the continuation of the 
probate backlog.
    Hundreds of thousands of new interests and owners will be 
created by the Act without the intervention of estate planning 
and buy-back programs authorized by the Act. The Act contains 
specific provisions and authorizations for estate planning and 
buy-back programs, which reduce fractionation and promote 
reconsolidation of trust lands. Funding for these programs has 
been stalled and stymied.
    I know from our experience at the Institute, where we 
designed and administered a program under a one year estate 
planning pilot project contract from Interior in the fall of 
2005 in the amount of $519,000. The project's purpose was to 
determine if there was a need for estate planning in Indian 
Country, and if so, whether estate planning would reduce 
fractionation of trust lands. The answer to both is 
unequivocally yes.
    The pilot project provided full-time estate planning 
services to Legal Services programs in Washington and South 
Dakota, serving specified reservations. The pilot project ended 
in September, 2006, and an extension of the contract for 
unspent funds was denied. For reasons unknown to us, a few 
within the Bureau have characterized the results of that 
project as having a neutral to negative effect on 
fractionation. This is contrary to the Bureau's own audit 
report, our statistical findings, and our experience with other 
projects we have operated since 2004.
    After the completion of the project, the BIA auditor 
reviewed client files that were developed in the course of the 
project with appropriate safeguards to protect confidentiality. 
The auditor concluded that 83.5 percent of the project wills 
reduced fractionation. Will drafting not only prevented further 
fractionation of small interests, but stopped the fractionation 
of thousands of new interests that would have otherwise been 
created under AIPRA's intestacy rules.
    Under the project, 2,600 trust interests were transferred 
by will to a single heir or as a joint tenancy with the right 
of survivorship. Of these 2,600 interests, 780 interests were 
greater than 5 percent, and without estate planning AIPRA's 
intestacy laws would have further fractionated those into 4,640 
new interests and heirs. One hundred percent of the pilot 
project's inter vivos instruments such as gift deeds totally 
stopped fractionation.
    Equally significant, 519 interests were permanently removed 
from any further probate proceeding through pilot project 
conveyances to tribes or buy-back programs, saving the Bureau 
of Indian Affairs substantial dollars in what otherwise would 
have been the continuation of administration probate and 
management costs. These results are from just one program 
providing services full-time for nine months and for under 
$500,000.
    Our Institute is the only entity attempting to provide 
estate planning legal services to Indian people on a national 
basis. We develop programs and oversee projects in several 
States using a number of different models and methods. We have 
described in our testimony those models and methods that we 
have used and the results that we have achieved. We believe 
that the expansion of estate planning services in Indian 
Country is going to be essential to stop the fractionation 
problem that contributes so heavily to the backlogs in the 
probate process.
    We have also encouraged in our testimony a reconsideration 
of the Bureau of Indian Affairs' decision not to store wills, 
and we understand just recently that that decision has been 
reconsidered. It is a small, but significant, factor, we 
believe, that contributes to the backlog.
    Finally, Mr. Chairman, we have had an opportunity to review 
and look at the technical amendments that have been proposed to 
the Probate Reform Act. We have commented on a couple of those 
and strongly support those amendments, and believe they will be 
a help and an improvement.
    Thank you very much.
    [The prepared statement of Mr. Nash follows:]

  Prepared Statement of Douglas Nash, Director, Institute for Indian 
     Estate Planning and Probate, Seattle University School of Law
    Mr. Chairman, members of the Committee, my name is Douglas Nash. I 
am the Director of the Institute for Indian Estate Planning and Probate 
at Seattle University School of Law (http://www.indianwills.org). The 
Institute is a project of the Indian Land Tenure Foundation which is a 
non-profit corporation in Little Canada, Minnesota 
(www.indianlandtenure.org). I appreciate the opportunity to participate 
in the follow-up session to the October, 2007, hearing on the issue of 
probate and backlogs within the Bureau of Indian Affairs.
I. Probate Backlog
    From anecdotal evidence and personal experience, I believe that 
little has changed since the last hearing about eight months ago--at 
least in terms of the backlogs that plague the probate process. It is 
my prediction that little progress will be realized in the future 
unless the Bureau of Indian Affairs and/or Congress take some decisive 
steps to support the mechanisms created by AIPRA to proactively address 
and reduce the fractionation of trust lands.
    The backlog in the probate of Indian estates is a multi-faceted, 
systemic problem with one common denominator, fractionated ownership of 
trust lands. The sheer number fractionated interests, combined with the 
current and outstanding historic probates, the complexity of those 
probates as measured by the number of undivided interests held by each 
individual decedent, the lack of a central and robust LTRO record 
system that would support timely and accurate multi-jurisdictional 
title reports, and finally, the lack of estate planning and buy back 
resources which have proven success in reducing fractionation and 
removing interests from the probate process entirely. All of these 
factors contribute to the backlogs in probate now and the continuation 
of backlogs in the future.
    The American Indian Probate Reform Act (AIPRA) is designed and 
intended to address the issue of fractionation through intestate 
succession. If fully implemented and resourced, the Act will 
substantially and significantly reduce fractionation given appropriate 
time. There are no quick fixes to address an issue that has evolved and 
grown exponentially for over 120 years. The Act's Intestacy laws will 
stop the further fractionation of very small interests, those less than 
5 percent. However, the Act will continue to fractionate all lands 
greater than 5 percent until the highly fractionated threshold of 5 
percent is reached. The new interests will require additional 
management resources and contribute to the continuation of the probate 
backlog.
    Hundreds of thousands of new interests and owners will be created 
by the Act without intervention of the estate planning and buy back 
programs authorized by the Act. The Act contains specific provisions 
and authorizations for estate planning and buy back programs which 
reduce fractionation and promote reconsolidation of trust lands. 
Funding for these programs have been stalled and stymied.
    I know this as Director of The Institute for Indian Estate Planning 
and Probate. We designed and administered a program under a one year 
Estate Planning Pilot Project Contract from Interior awarded in the 
fall of 2005 and in the amount of $519,000.00. The Pilot Project's 
purpose was to determine if there was a need for estate planning of 
trust lands and if so, would estate planning reduce fractionation of 
trust lands. The answer to both was unequivocally yes.
    The pilot project provided full time estate planning services to 
selected tribes in Washington and all tribes in South Dakota utilizing 
four specially trained legal service attorneys and two legal service 
paralegals. The Pilot ended in September, 2006 and an extension of 
contract for unspent funds was denied. For reasons unknown to us, a few 
within the BIA have characterized the results as having a ``neutral to 
negative'' effect on fractionation. This is clearly contrary to the 
BIA's own auditor report, our statistical findings, and our experience 
with other projects we have operated since 2004. After completion of 
the Pilot, a BIA auditor reviewed client files developed in the course 
of the pilot project, with appropriate safeguards in place to protect 
confidentiality.
    The BIA auditor concluded that 83.5 percent of the pilot project 
wills reduced fractionation. Will drafting not only prevented further 
fractionation of small interests, but stopped the fractionation of 
thousands of new interests that would have otherwise been created under 
AIPRA's intestacy rules. Under the Pilot, 2,600 trust land interests 
were transferred by will to a single heir or as joint tenancy with a 
right of survivorship which vests title in only the last survivor. Of 
these 2,600 interests, 780 interests were greater than 5 percent and 
AIPRA's intestacy laws would have further fractionated these into 4,640 
new interests and heirs. 100 percent of Pilot Project's inter vivos 
instruments, such as gift deeds, stopped fractionation. Equally 
significant, 519 interests were permanently removed from any future 
probate proceeding through Pilot conveyances to tribes or buy back 
programs, saving the Bureau of Indian Affairs substantial dollars in 
what otherwise would have been the continuation of administrative, 
probate and management costs. These results are from just one program 
providing services full time for 9 months and for under $500,000.
    Our Institute is the only entity attempting to provide estate 
planning legal services to Indian people on a national basis. We 
develop programs and oversee projects in several states, using a number 
of different models, based upon available funds. Our programs provide 
estate planning services to Indian people at no cost. We currently have 
four projects in operation that deliver very limited estate planning 
services on approximately 20 reservations in six states and these 
projects are funded by private foundations and tribes. Adequate funding 
of estate planning will address and eliminate fractionation. Funding is 
the only obstacle to the expansion of our current projects and the 
development of new projects. We have resolutions from numerous tribes 
as well as tribal organizations in support of our work and tribes 
requesting services but who are waiting until additional funding is 
secured. Having substantial and long-term funding commitments from the 
BIA or Congress will greatly facilitate the delivery of estate planning 
services, and as a result, successfully stem the tide of fractionation 
and reduce the backlogs in probate.
    Our projects utilize a number of different models designed to fit 
both needs of the communities and the private funding limitations we 
face. These include the use of specially trained, law student interns 
who are paid to work on reservations over the summer months; law 
student externs who receive college credit in lieu of a salary; 
contracting with legal services programs and training legal services 
attorneys to work exclusively on estate planning issues for tribal 
members; a law school clinical program at Seattle University School of 
Law; paralegal providing services under appropriate supervision; and an 
evolving volunteer pro bono program. All project personnel are trained 
to provide community education on AIPRA, fractionation and land tenure 
issues, as well as offer clients alternatives with regard to the 
disposition of their interests in trust land--alternatives that 
minimize or eliminate further fractionation or, in some cases avoid 
probate all together. Testamentary transfers include leaving whole 
interests to individual heirs, leaving interests to multiple heirs as 
joint tenants with a right of survivorship, leaving other assets in 
lieu of land to some heirs and developing consolidation agreements. 
Project personnel also provide information and assistance with life 
time transfers, such as gift deeds and sales which eliminate the need 
for probate entirely.
    The purpose and intent of AIPRA is thwarted without estate planning 
services and land consolidation options authorized under the Act. 
Estate planning services cannot be provided without adequate funding 
from the BIA or alternately, from appropriations authorized under the 
Act. Section 2206(f)(4). Unless these services are provided, the 
benefits that are contained within AIPRA will not be realized and 
backlogs will continue to increase.
II. Will Storage
    When the BIA announced that it would no longer draft wills, it 
simultaneously announced that it would no longer store wills for tribal 
members as had been their previous practice for many decades. 
Withdrawal of will storage services has a significant impact on probate 
backlogs. A thoughtful estate plan to reduce fractionation is worthless 
if the family cannot find the will after death and the Bureau has no 
record of its existence. Additional time is spent in federal probate 
proceedings when judges must determine the legal sufficiency of a copy 
submitted when the original cannot be found.
    Our project personnel counsel clients about safeguarding and 
storing originals of wills and providing copies to appropriate 
individuals. Inevitably, some wills will be lost, destroyed or 
otherwise unavailable at the time of the decedent's death. Delays in 
probate will be encountered as a result. Challenges to intestate 
proceedings in cases where family or friends recall the deceased having 
done a will are likely to increase, as will arguments for or against 
uncertified copies. Each will consume time and therefore, expand costs 
for the probate. Storing Indian wills at the local BIA agency marries 
well with that same agency's duty to prepare the probate package for 
hearing. Any additional burden, if any, of will storage would be offset 
by the time and costs encountered as a result of not providing the 
service. We encourage reconsideration of the decision of the BIA to not 
house wills.
III. Technical Amendments
    We have had an opportunity to talk with committee staff and review 
additional technical amendments currently in Senate draft form (S. 
2087). We believe the changes proposed will clarify important 
provisions of AIPRA and further the effective implementation of the Act 
and reduce potential problems and claims arising from inaction. None of 
the proposed amendments alter the Acts provisions in a way that would 
increase the expense of implementation or administration of the Act.
    There are several important changes to the Act under this floor 
draft bill. To be brief, I will only highlight two of the proposed 
issues and reasoning for change. 25 U.S.C. Sec. 2201(7) defines lands 
to include any permanent fixture attached. There is no differentiation 
between lands held by the Secretary in trust for the tribe or the 
individual. The result is, at worst, merger of HUD and Mutual Help 
Homes onto tribal trust lands contrary to existing federal lending 
agreements and contracts. At best, the existing language creates a gray 
area that the probate courts will inevitably have to decide--what is 
the nature of these homes. The amendment would remove the 2201(7) 
definition and provide an intestate provision for distribution under 25 
U.S.C. Sec. 2206 for those homes where the decedent has an ownership 
interest in the underlying land. Existing federal and tribal contracts, 
as well as tribal housing codes would be unaffected for those homes 
tribal trust lands.
    Purchase options at probate, 25 U.S.C. Sec. 2206(o), is a 
consolidation mechanism of the Act where a co-owner, heir or the tribe 
can request to purchase an interest in a parcel during the probate 
process. For interests greater than 5 percent or any interest passing 
by a will, consent of the putative heir is required. For interests less 
than 5 percent passing under intestacy, no consent of the heir is 
required for sale unless the putative heir lives on that parcel at the 
time of death. The Act currently measures these interests, not as the 
interest in probate of the decedent, but as the future expectancy of 
the heir. The result is that large trust interests of the decedent 
would be open to forced sale under the provisions of the Act. A simple 
scenario is an individual dying intestate with a 20 percent interest 
with five children. The Act's intestacy rules will fractionate this 
large interest, giving 4 percent interest to each child or the child's 
estate; and then, the same Act measures the putative heir's unvested 
land interests at probate for sale without consent at probate. The 
amendment corrects the Act to measure only the interest of the 
decedents' at probate, and remove the potential for numerous property 
and due process claims that would otherwise arise.
IV. Conclusion
    I would like to thank you Mr. Chairman, and the Committee, for the 
opportunity to share this information in testimony today and for your 
interest in this subject and this Act which is critically important to 
many across Indian Country. We would be happy to provide any additional 
information that we have that would be of interest to the Committee.
    Thank you.

    The Chairman. Mr. Nash, thank you very much. We appreciate 
your testimony.
    Mr. Artman, let me start with the question that was raised 
by Mr. Svanda. Chairman Ron His Horse Is Thunder testified 
about the 10 applications they have had pending since 1992 
about land into trust status. Has anything happened on those?
    Mr. Artman. We just spoke with Chairman His Horse Is 
Thunder yesterday about those, as well as with our people that 
were in the field on that. Since the hearing that took place in 
October, we tried to identify which applications he was 
speaking about specifically. From what we have been able to 
gather from both the Standing Rock Sioux people and our people 
is that, indeed, we can't find these in the system. They are 
sending us the information to help us track it better. Perhaps 
it is in the system and we just aren't using the right key 
words or the right identifiers.
    Nevertheless, we are working closely with the Standing Rock 
Sioux to make sure that if they are not in the system, to get 
them into the system and get them processing quickly.
    The Chairman. I think we held our hearing eight months ago. 
Why would you wait until yesterday to contact this tribe?
    Mr. Artman. We were just giving Chairman His Horse Is 
Thunder an update on where we were on this as well.
    The Chairman. I understand. But my point is, he raised that 
in a hearing eight months ago and they have heard nothing from 
the BIA apparently until yesterday?
    Mr. Artman. No. We have been working with them before that. 
In saying that we spoke with Chairman His Horse Is Thunder 
yesterday, that was by way of where we were, giving him an 
update on what we were doing.
    The Chairman. If these exist, you can't find them in the 
system. Let me tell you that you are the third Assistant 
Secretary in this Administration. All have lasted about one 
year or a year and a half. The last Assistant Secretary, Dave 
Anderson, said he resigned because he felt ``stymied'' in his 
position and did not receive support from his subordinates or 
political higher-ups.
    Is there validity to Mr. Anderson's comments?
    Mr. Artman. I am not sure what Mr. Anderson's reasons were 
for resigning. I haven't spoken with him about it. If by 
implication, you are putting his comments on me, I think that 
the work that we have accomplished in advancing probates, 
leases and fee to trust, that is a team effort. In fact, just 
about a month ago I spoke with 700 of our fee to trust 
employees, LTRO employees, realty specialists, managers, 
regional directors, everyone who contributes to the system, at 
a trust conference in Denver. The enthusiasm around the room 
for the work that they were doing was excellent.
    I have heard a lot of comments from folks that say that 
they are excited to be able to process the applications, to be 
able to get them into trust. It has been stated clearly that we 
do want to take land into trust. By putting the performance 
standards on our regional directors, and those performance 
standards are pushed down through their ranks, this is not only 
something that is being said in words, but it is also being 
exhibited through actions as well.
    Probates and leases, again having a two-thirds reduction in 
the number of commercial leases and staying on track to 
complete the probates by Fiscal Year 2009, I think shows 
enthusiasm. So stymied from below, certainly not. That takes 
everyone, and Secretary Kempthorne has shown strong support for 
economic development which the fee to trust applications, 
probate, and commercial leases all plays into that economic 
development as well.
    The Chairman. But Mr. Nash says, ``from anecdotal evidence 
and personal experience, I believe little has changed since the 
last hearing eight months ago.'' Mr. Chicks says that the land 
into trust charts you put up are a funny kind of math. You 
started in October of last year with 1,310 pending land into 
trust requests and 125 have been decided out of 1,310. That is 
8 percent or 9 percent. And yet you come up with the number of 
57 percent because you say 217 applications are ready to be 
processed.
    Your response?
    Mr. Artman. Yes. One of the things that we did last year, 
one of the first things I mentioned in the October hearing on 
backlogs, is I mentioned that if you were to ask us what we 
have in trust in any category that is in the pipeline, I 
wouldn't be able to tell you. One of the first things that we 
did when we were preparing for that hearing, starting at the 
preparation point for that hearing, and you have been seeing it 
up to now, is making sure that we know exactly what we have in 
the pipeline.
    That is not just the number that we have in the pipeline, 
but also the categories, the kinds of applications that we have 
in the pipeline. It is not funny math to say that a certain 
number of applications don't have sufficient information. You 
can break it down into any number of categories looking through 
the 151 regulations, be it 151(10) and 151(11), and say that 
you need maybe 10 or 15 boxes checked off, if not more, if you 
are going to get down to the sub-levels of the fee to trust 
process.
    If you don't have those boxes checked off prior to being 
submitted to the BIA, it simply can't be processed. There is 
nothing that we can do about it. There may have been a point in 
time in the history of fee to trust where you could submit a 
description of the land along with a resolution from the tribe 
to take the land into trust, but because of regulations, 
guidelines, court cases, laws, statutes, or legislation passed 
into law, new restrictions have been created or new processes 
have been created, everything from NEPA, Hazmat, to 
communications with the local folks. All those things have to 
be taken care of before we get there. Those are things we can't 
do.
    When we do get them, what we do now is we are able to say, 
okay, of those approximately 1,400, we had 215 that we could do 
right away, and those we have been addressing consistently. I 
think we have approximately 62 percent of those done. Those are 
the ones we could do.
    Of the other ones, we have been working closely with the 
tribes when possible. I say when possible, because I have heard 
anecdotal evidence out of the agencies, out in the regional 
level, that there has been bad communication. But for the most 
part, I would say that that is the exception, and not the rule.
    The Chairman. Mr. Artman, you indicated that, and I hate to 
use North Dakota as an example, but you indicated that you 
can't even locate the 10 that were submitted in 1992 presumably 
by the Standing Rock Sioux Tribe. So of the 1,310 pending, that 
is how many you know are pending.
    First of all, it is gross incompetence that prior to you 
getting there, there was not a tracking system. That is 
stunning incompetence. I mean, I don't know why we pay salaries 
of people that don't understand you have to have a tracking 
system. How do you keep track of things when they come in if 
you don't have a tracking system?
    Second, you say there are now 1,310 pending as of October 
of last year, but the 10 that one of the witnesses described in 
front of this Committee last October you say that you have no 
record of them. So how do you know the 1,310 represents the 
population of applications or requests?
    Mr. Artman. Well, I think you state a very important point, 
that you can't have progress if you can't measure. And that is 
one of the first things that we try to do is put into place a 
foundation for measurement.
    With regard to the 10 out of North Dakota, and I know 
Chairman His Horse Is Thunder well, and I am not happy that 
those are missing. I am not happy that any would be missing in 
the system. We went through an extensive data call last fall to 
try to round up everything. With that, we have to assume that 
the number that we are working with, and it is 1,489 that are 
in the pipeline now, that that is what we have in the pipeline. 
I think after speaking with Standing Rock and getting the 
requisite information, it is maybe 1,499, but we do have our 
limitations in terms of determining exactly what is out there. 
There may have been mistakes in the past in how this 
information was collected and catalogued, but we are working to 
correct those I think quickly.
    The Chairman. Mr. Artman, let me ask about the point, and 
then I will turn it over to my colleagues, that I made at the 
opening. Driving up near an Indian reservation and seeing oil 
development all around it, but none on the reservation, despite 
the fact that the oil industry told me they want to be drilling 
on that reservation, but cannot. So the Indians on that 
reservation are cheated, in my judgment.
    We raised this issue last fall. The agency is short-
staffed, so the regional office submitted in February a request 
for more permanent employees. Limited detailed employees were 
provided by other agency offices but for a short period of 
time. Other regional offices have two to three times the realty 
staff. Someone asked me this weekend, why are they trying to do 
this out of Aberdeen? First of all, they don't have the 
capability and the experience. Why don't they do this out of 
Denver, where they do have the experience?
    The point of it is this: You tried to put some resources in 
there, but it was just a small amount of resources for a short 
period of time. We have an Indian reservation that is very much 
like the building I showed you last year--a building that sat 
open for over a year. It was a beautiful, new building built by 
a tribe, and they are proud of it, but they couldn't get 
anybody in it because the BIA wouldn't approve the lease. So, 
the building sat for a year completely empty. Complete 
incompetence.
    It seems to me there is complete incompetence here with 
respect to this. The largest oil play in this Country, in the 
lower 48, right now is in eastern Montana and western North 
Dakota. That oil play is aggressive, except the Indian 
reservation, which is right in the middle of it, is 
experiencing none of it. They can't drill wells there for 100 
reasons that deal with the bureaucracy.
    I do not understand it. If I sound angry, I am. I sometimes 
think that we ought to abolish this agency and just start from 
scratch, hiring people who understand if you are going to have 
applications coming in on anything, maybe you should track 
them, give them a number, give them a locator number.
    When I got my MBA and my first job, I put together a system 
in the first place I worked and I understood that. It is not 
rocket science. It is unbelievable to me the staggering 
incompetence here. You have been there for a year. You, I 
think, have made some progress, but frankly I think it is less 
than you suggest. That is for us to discuss I think in greater 
detail.
    I have other questions, but let me call on my colleague, 
Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman.
    Mr. Artman, I want to go back to what Mr. Chicks has 
described as funny kind of math. In his statement, he provides 
that the problem is that the great majority of applications 
have been disqualified as incomplete or not ready to be 
processed. This may help the BIA's numbers, but it is no help 
at all to the affected tribes.
    Is there accuracy to Mr. Chick's statement in your opinion? 
What really is going on?
    Mr. Artman. I would correct two words in Mr. Chicks's 
quote. It is not the majority. It is 613 so far that have not 
been disqualified, but that we have simply informed the tribe 
that we don't have enough information for us to process the 
application. We need for the tribe to submit more information.
    Senator Murkowski. Then once you have made that 
determination that you don't have sufficient information, do 
you then kick it out and say we have tackled that one?
    Mr. Artman. No.
    Senator Murkowski. How does that count?
    Mr. Artman. The agency or the region, depending upon which 
tribe it is, works with the tribe to get that information, to 
inform them of what they need to do. In many cases, depending 
on which agency and which tribe, there is technical assistance 
offered to work them through the process. Most of the tribes 
out there have sophisticated land offices, real estate offices, 
and know this process well, so oftentimes it is just a noting 
of the fact that we may not have a certain letter from the 
community, or we may not have a tax statement, or we may not 
have a lien statement. That is all it is, and then the 
application is resubmitted.
    We are not looking at these in terms of lineal progression. 
It is not a first-in/first-out, but we are looking at this in 
terms of what can we do now, and that is why we have the fee to 
trust tracking system.
    Senator Murkowski. I just want to make sure that I 
understand. When you say first-in/first-out, is it kicked out 
then for lack of sufficient information? Then when they submit 
that information that is deemed to be sufficient, do they start 
all over?
    Mr. Artman. No, ma'am, and it is not a first-in/first-out 
system. The way that we have set up our fee to trust tracking 
system now, we have categories. Once those categories are 
completed, it will move into our stage where we can now take 
over the application and finish it. The onus is now on us to 
complete it.
    They are not kicked out. They are not disqualified. They 
are not termed inactive. The case is still open. It just hasn't 
hit that stage where we take it over. Like I said before, we 
work with the tribes to make sure that we can collect 
sufficient information to bring it up to the stage where we can 
now consider it.
    Senator Murkowski. Let me ask you a question, Mr. Nash. For 
decades, the BIA had provided technical assistance for Indian 
estate planning. Just a few years ago, the Department then 
announced that it would no longer store Indian wills or give 
the will-writing assistance to Indian landowners.
    I believe that Mr. Artman said this morning that, and I 
think you phrased it that outside contracting may not 
necessarily be needed. I don't know if it is in the area of 
estates.
    Do you believe, Mr. Nash, that there is still a need to 
provide funding to outside organizations to provide for, for 
instance, the estate planning services?
    Mr. Nash. Yes, Senator, I believe that very strongly. With 
the Bureau no longer providing estate planning or will drafting 
services as they did in the past, with the passage of the 
Probate Reform Act, the Act complicates estate planning for 
Indian people who own interests in trust land.
    The Bureau previously drafted wills for people who had 
trust interests. As you know, many Indian people own non-trust 
real property, as well as personal property. In our experience, 
many times a client has a need for a will that will comply with 
Federal and State, as well as tribal laws regarding probate and 
wills. So it has become very complicated. Very few people, 
attorneys throughout the Country whether in Legal Services or 
private practice, are trained on the details and intricacies of 
the Probate Reform Act. Consequently, we believe that unless 
there is funding for estate planning services such as the 
project that we oversee and provide, the estate planning 
process in addressing fractionation is just going to continue 
to get worse.
    Senator Murkowski. Mr. Artman, I was just informed 
yesterday that the BIA has decided that the Alaska region would 
no longer have its own education program people, and that the 
Education Program Office that serves Alaska has been 
consolidated with the Portland region. My office has also been 
getting some complaints that we have a number of Alaska school 
districts that were expecting to receive Johnson- O'Malley 
money pursuant to certain tribal resolutions, and they haven't 
received anything this year.
    When they made contact with the BIA, basically BIA told 
them we will look into it. It is my understanding that the 
amount of money we are talking about here is in excess of 
$300,000. I just wanted to ask if you were aware of this 
situation and, if not, if you can see that it is looked into. 
As I say, I just learned about this yesterday, but it is 
something that causes me concern in these eight different 
areas.
    Are you familiar with this?
    Mr. Artman. I am not familiar with either one of those, 
Vice Chairwoman, but we will look into this and get a response 
back to you today or tomorrow.
    Senator Murkowski. I would appreciate that.
    And then I have also had an opportunity in the past to ask 
you about the situation that the Association of Village Council 
Presidents in Bethel, they had a situation with regard to their 
Indian reservation roads funding. There had been, well, I don't 
know if there was a typographical error or whether there was an 
error in somehow or other communicating the funds that would be 
made available. I am wondering if you have any update on that 
situation?
    Mr. Artman. Yes, ma'am. Our stated goal was to get that 
situation corrected. It has been corrected and our target date 
to get that money into the account and transferred over to the 
village is June 11th, I believe. We do think it will happen 
sooner than that, though.
    Senator Murkowski. Okay. Well, if you have any more 
specific details that you want to provide me or my staff, I 
would appreciate that.
    Mr. Artman. We will get you a written confirmation of that.
    Senator Murkowski. And then just one last quick question. I 
am kind of cleaning up here, knowing that you are on your way 
out. We have long had conversations about the situation with 
the BIA office, the Alaska Regional Office there in Juneau, and 
the prospect of that office moving from Juneau to Anchorage. Do 
you have any update on that situation for me?
    Mr. Artman. We were looking for some additional 
information. I believe that Niles Caesar, our Regional Director 
in that area, is in the process of preparing that. I have not 
signed off on any transfer of the regional office from Juneau 
to Anchorage.
    Senator Murkowski. Do you believe that that is eventually 
what happens with that office?
    Mr. Artman. From the economic data that we were looking at, 
I would think that someday that will happen.
    Senator Murkowski. Can you define some day?
    Mr. Artman. I don't know.
    [Laughter.]
    Mr. Artman. I suppose it will depend upon the next person, 
what he or she may want to do, or the person after that. I 
don't have a date on that. I don't have any outlook on when 
that may occur.
    Senator Murkowski. Well, as you know, that is an issue for 
us in the State that we are concerned about. Juneau is having a 
pretty tough time right now, and the loss of a regional office 
like this moving to Anchorage is not something that helps 
Juneau. We had hoped that we would not be seeing that there 
would be certainly regional offices that are not maintained in 
that south central area in the capital. So I would like to 
think that we are not going to be seeing that someday.
    Mr. Artman. Okay. I will pass that along, and I will also 
pass along to the next person, as I committed to you, that 
before we do anything that we will communicate that with the 
entire delegation.
    Senator Murkowski. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Senator Barrasso?
    Senator Barrasso. Thank you, Mr. Chairman.
    Mr. Chairman, last week the three of us, along with Senator 
Tester, discussed the idea that the government in Indian 
Country should just put people in a position to succeed, and 
then get out of the way. And then you here these comments and 
look at these delays and you know that once again the 
government has gone astray from that role.
    Mr. Artman, I have concerns. I know your office is working 
on streamlining processes. I appreciate that very much. Let me 
read you what I know is happening in Wyoming right now. This 
has to do with NEPA, the National Environmental Policy Act. 
Currently, all NEPA work in Wyoming is suspended. All NEPA work 
is suspended on the Wind River Reservation because personnel 
there and at the Rocky Mountain Regional Office in Billings 
believe that none, none of them possess the qualifications to 
certify NEPA documents under the current BIA regulations, none 
of them.
    The BIA personnel report is that this suspension was 
prompted by an order, probably coming from your office, to try 
to simplify the process. The BIA personnel claimed that the 
process has been so streamlined that it requires an expert to 
make the decisions and there is no such expert available in 
either Wyoming or Billings, Montana to deal with it. So it is 
all suspended. Nothing is being done. Things have come to a 
complete stop.
    Do the requirements that come forth now, are they requiring 
more training or more certification for the personnel? We talk 
about the unintended consequences of government action, and it 
seems that a good plan to streamline something has now brought 
things to a complete shutdown.
    Any comments on this?
    Mr. Artman. Senator Barrasso, the situation that you are 
talking about comes from not anything that has happened 
recently, but has come from the DOJ standards and the standards 
that have been promulgated by our office and the solicitor's 
office previously on what needs to be done under NEPA review. 
The individual up there who was in charge of that feels that he 
doesn't have the qualifications to do that. While we might 
debate on what his qualifications are, I actually think he is a 
very well qualified individual. He is concerned about the 
issue, about his own qualifications.
    So with that concern, we are trying to work with that 
office to be able to deal with that issue, be it bringing in 
people on detail or sending out the work elsewhere for that. 
Many times with these NEPA reviews, it is putting the person 
onsite sometimes for as little as five minutes or even an hour 
to look at it and to walk around. It is as easy as that.
    We have well-qualified people throughout the system, and in 
other areas it is continuing on. This is one of those 
situations where that has come up. It is an obstacle and we are 
trying to deal with that.
    Senator Barrasso. So when can I tell my people in Wyoming 
that they are going to have the training or the personnel that 
they need on the Wind River Reservation?
    Mr. Artman. I don't have a date for you today, Senator 
Barrasso, but it is something that we are acutely aware of and 
that we are working on. I will make sure that we do get a date 
to you when we have some better information.
    Senator Barrasso. Obviously, the sooner the better. It is 
unfortunate that in your efforts to streamline the situation, 
we resulted in absolutely nothing happening.
    Let me go to the next question. The Wind River Reservation 
does not have a resource management plan. This presents some 
difficulties for completing a NEPA analysis. Local staff report 
that lack of funding and manpower for the project prohibit them 
from moving froward to draft a resource management plan.
    It seems that preparing a plan like that would be a good 
way to gain efficiency for the future. The Bureau could spend 
money up front and save the time, save the money on subsequent 
analysis. Is that sort of investment encouraged by the agency 
to go ahead and draft a resource management plan? How can the 
Wind River Agency move forward to get that done?
    Mr. Artman. Resource management plans are a good investment 
because it does help to knock down obstacles into the future. 
It does help to streamline the process because individuals are 
working within the parameters that they understand, that have 
been set for them. We will be happy to work with the Billings 
office to make sure that that does happen along with this.
    Senator Barrasso. Finally, last week Mr. Cason was here. I 
discussed a project that is ongoing on the Wind River 
Reservation to update the irrigation system. The project was 
appropriated $7 million a couple of years ago. So far, only 
$200,000 has been spent. When you hear the story of problems 
with archaeological studies, problems with contracting, 
problems with disbursement, it seems that the agency is 
creating hoops to jump through. The Chairman earlier said it 
seems like there are 100 hoops to jump through. It is not just 
one hoop. It just goes on and on and on.
    Mr. Cason indicated that the Department would get me an 
update, and I don't know if you can update me on the project 
today. What is the schedule? What has been planned?
    Mr. Artman. I don't have that update for you today, 
Senator.
    Senator Barrasso. Well, I know it is your final day and you 
are probably doing other things, but I would ask that your 
agency move forward and get back on track with that and get a 
report back to me as quickly as possible.
    Mr. Artman. Yes, Senator.
    Senator Barrasso. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Mr. Nash, you indicated that you felt that the report by 
Mr. Artman was not in concert with what you think is happening. 
You indicated that you don't see the same progress. Describe 
that.
    Mr. Nash. Yes, Mr. Chairman. Without having delved into 
numbers or developing statistics, it is our experience from 
talking with individuals and the inquiries that we get that 
there are still delays in the probate process. If there is 
progress being made on backlogs, it is not one at least we hear 
about from individuals who contact the programs that we oversee 
or contact us directly.
    A particular personal example, if I may offer that, my aunt 
who passed away on June 20, 2006, ironically the date that the 
Probate Reform Act took effect, was an enrolled member at Pine 
Ridge, and a resident of Nez Perce Reservation in Idaho where 
she owned interests in five or six different trust allotments. 
Her death certificate was delivered the very week that she 
passed away, the probate file being developed there at the 
northern Idaho agency at Lapwai. No word having come from that 
office for sometime, an inquiry was made and the probate file 
had been sent from the Nez Perce Reservation to Pine Ridge 
where she was enrolled, but where she owned no land interests.
    That is now almost two years ago. The most recent inquiry 
indicated that ownership records in two different systems 
maintained by the Bureau were in conflict. One showed her 
owning interests that the other system said she did not known, 
and vice versa, which raises the specter we are fearful that 
her father, my grandfather's estate, has not yet been finally 
probated and he passed away in 1974.
    So just a personal example that I think it is a story that 
others share, others who have family member estates who are 
involved in the probate process.
    The Chairman. Mr. Nash, thank you.
    Mr. Chicks, you indicated in your testimony that the 
Southern Ute Tribe has 20 pending applications, I believe that 
is land into trust. Of which, 15 have been pending for over 
eight years. They have received no action since they sent this 
letter to the BIA well over a year ago. Tell me about that. You 
say that you have personal knowledge of this, that the Ute 
Tribe has received no response?
    Mr. Chicks. We attached a letter from the Southern Ute 
Tribe. It should have been included in the testimony. With it 
is a list of a number of pending applications, and shows how 
many years they have been out there. What I am looking at, it 
shows a minimum of nine years going up to eleven years.
    The Chairman. In the letter, it says nine of the twenty 
properties are blocked at the preliminary title opinion phase 
of the process.
    Mr. Artman, how could that be the case? It seems to me that 
title opinions, you just ratchet your way through those and 
find the people to do the search and make the judgment. How can 
that be blocked for eight years?
    Mr. Artman. Without seeing the records in front of me, we 
are not going to stop something at the PTO level unless there 
is something wrong with it. There may be conversations going on 
with the Southern Ute Tribe on the title status of those 
specific lands. Oftentimes, there may be liens. There may be 
encumbrances or other issues associated with the title that 
won't allow it to come into trust.
    The Chairman. There is always an answer for these things, 
but it is never one that is very satisfactory. If you have 20 
applications that are filed and pending for over eight years, 
most of them for over eight years, and the first step, which is 
the title opinion, is not even completed.
    You know what? It seems to me like we have just an 
unbelievable mess down there. I will be the first to say that 
you perhaps have made some marginal improvement in the last 
eight months, but it doesn't sound to me like we have it 
together. I don't have an inventory of these cases; I have only 
asked you about two. I know about the Standing Rock issue. I 
asked you about the Ute Tribe. And in both cases, well, you 
know, we don't know about that.
    At any rate, I remain very frustrated by the BIA. I think 
there are tribes out there that are very disadvantaged. I am 
not insisting on what the answer should be. When someone files 
a request to the BIA, I believe that the tribe has a right not 
to wait a median of six years, which I think the previous GAO 
report suggested. That is just untenable. It makes no sense. 
That is a terrible disadvantage to Indian tribes who are 
struggling to try to deal with desperate poverty and other 
issues, and get some economic development going. What they 
discover is that the Bureau of Indian Affairs is a stumbling 
block for them, rather than providing assistance to them.
    Mr. Artman. If I may, Mr. Chairman?
    The Chairman. Yes.
    Mr. Artman. And I completely understand where you are 
coming from. Having been on the other side and having focused 
on fee to trust when I was working with the United Tribes of 
Indians of Wisconsin as their Chief Counsel, that was certainly 
an issue that we focused on quite a bit, was how do we make the 
process work better. So I understand the tribes' frustration, 
and I certainly understand the frustration of the Senate as 
well.
    Since our last hearing on this issue eight months ago, we 
have made a lot of improvement. In that time, we have managed 
to take into trust 53,000 acres of land, which is far more than 
ever before. Like I said, what makes this happen is not what 
happens here. This is only part of it. What makes it happen are 
the folks that are in the agencies, that are in the regions, 
that are out in the field every day working eye to eye with the 
tribes and trying to get these applications through. It is an 
extremely dedicated staff.
    While we may find examples where we may not have an 
application or things may have taken a long time, the people at 
the agency level understand what is going on there, understand 
the problems, and are probably working to resolve it. I think 
that certainly in the last year, the folks at the field level 
have been given the indication that this is not lip service, 
but that we expect results in the fee to trust area and in 
other areas. They have delivered those results to us.
    So I think that even though we do have these situations, 
overall there is going to be improvement and it will continue 
to improve.
    The Chairman. If we don't even have tracking systems, which 
was the case up until you started one in this area, it is 
staggering incompetence to me. So I am probably less generous 
in my assessment of what kind of resources exist. But you are 
not asking for additional resources. At least you don't tell us 
you are asking for them. So the Administration sent us a budget 
and we will limp along here and there will be oil development 
in my State, all except on the Indian reservation where there 
is the greatest need.
    I don't know. I think that Senator Murkowski and I and 
others ought to try to think it through. How do you penetrate 
this bureaucratic mess? I think it is a mess and it has been a 
mess a long, long time.
    Let me just ask you one quick question. If I am a tribe and 
I file an application today on land into trust, is there any 
guideline that would suggest that somebody ought to make at 
least the initial decision on the title opinion before two 
years elapse or four years elapse or six years elapse? Is 
somebody going to be dealing with a guideline that you have put 
in place?
    Mr. Artman. Yes, they will be.
    The Chairman. What is the guideline for a land into trust 
application for the first step to be completed, which is the 
title opinion?
    Mr. Artman. That is one of the first steps. What we don't 
have in this handbook are the time lines in which they are to 
be done, for a number of reasons, one of which you mentioned, 
which is staffing. But also because this is a foundational 
level handbook. As we begin to implement these processes, one 
mandate of the handbook is to also have annual conferences with 
the tribes and the regions, to look at exactly what is 
happening there and making sure that we are doing things 
correctly.
    The PTO process should not take two years. With the 
overwhelming majority of these applications, it hasn't taken 
two years nor will it continue to take two years. I am not sure 
why the Southern Ute have that issue. It may even be with the 
Southern Ute as to why it is taking two years. Maybe they can't 
get a lien or an encumbrance waived or dislodged from the 
particular title. But we do work closely with the tribes in 
doing that.
    Having been on both sides of it, I can say that certainly 
the folks who are on the frontlines of this are very 
conversant. There is communication between the tribes and the 
BIA on these applications.
    The Chairman. Well, Mr. Artman, I wish you well. I know 
that today is your last day and I regret that, but I think we 
are going to try to work through it. I am going to try to take 
just a couple of these examples and work through them and see 
is there some extraneous issue that has these things pending 
for ten years or six years or eight years. Is this really a 
dedicated group of understaffed people who don't even 
understand the need for tracking systems? I am going to try to 
understand this some, because we don't stand a ghost of a 
chance of fixing any of it unless the processes are right and 
unless we have adequate staffing. That is just a fact.
    Senator Murkowski?
    Senator Murkowski. It makes me wonder, Mr. Chairman, as we 
talk about the BIA and the processes and the problems that just 
seem to be inherent and the inefficiencies, recognizing that so 
much of the system is kind of interconnected or interrelated.
    Mr. Chicks, you acknowledged this when you were here in 
October, recognizing that you have all these steps, and if one 
part of the process gets kind of sidelined for whatever reason, 
the backlog just accumulates almost exponentially.
    It makes me wonder, and I will pose this to all of you, if 
it would help if the Indian tribes had more or greater control 
of the whole process along the way, similar to what we are 
trying to do with the new Indian energy law. Do you think that 
that would help?
    Mr. Nash?
    Mr. Nash. Senator, speaking primarily in the probate area, 
the Probate Reform Act does cause a change in tribal authority 
and rules in probates, most significantly in terms of 
developing tribal probate codes that can alter some provisions 
of the Probate Reform Act. Tribes can, for example, establish 
their own rules of intestate succession and have that apply at 
probates of their members' estates as opposed to the provisions 
of the Act itself. That is a good step. It is a step forward.
    However, it is one segment, and because the Probate Reform 
Act and the Federal probate process focuses and deals with 
trust interests, that system is always I think going to be 
there, so all of the problems involved in the development of 
probate files at the Bureau of Indian Affairs, the acquisition 
of land title records, all of those problems that we see now I 
think will continue in the probate process. The delivery of 
some authority to tribes, while helpful, isn't going to have 
any major impact on that.
    Senator Murkowski. Probate is pretty distinct that way.
    Mr. Chicks, what do you think?
    Mr. Chicks. Well, you know, a couple of things here. There 
is not any real meaningful interaction between the Bureau and 
the tribes over the land in trust process. Now, you know, Mr. 
Artman said that they issued a handbook this week. I am not 
sure what is in there or what that will solve, but there is no 
set way that a tribe is instructed to submit an application. 
There is not an application form. It is really difficult as a 
user to try to understand how we ought to be submitting these 
applications so that they don't get bumped out of the system or 
they don't get disqualified.
    I think that what we learned today is really disturbing, 
all the numbers. And when I call it a funny kind of math, I 
think that is true, to learn that with the Standing Rock Tribe 
that they are not even able to identify where those 10 
applications are. I don't think that is just an anomaly. I 
think it is probably just the tip of the iceberg.
    I said in my testimony that we are very suspicious of this 
original 1,310 number because we just don't think that many of 
the applications were even included in the tracking system. 
There is no way. If the Bureau can't identify where they are, 
where does that leave us? If we call up and ask what is the 
status of our application, we are never given any kind of 
direct answer at all.
    It is a difficult system for a user to use. You can see 
that it is an impossible system for the owner to manage. There 
is no real communication. I think it stems from the minute the 
application is submitted to when it is approved. There are many 
benchmarks along the way that many times the tribes aren't even 
aware of, that their application is being assessed and judged 
and they have no knowledge or no way or assessing that 
information and helping to improve the chances of moving that 
application.
    Senator Murkowski. Mr. Artman, let me ask one last question 
of you. Recognizing that you are departing the BIA, and knowing 
that you won't have to implement this, what would be the one 
thing that you had hoped that you could have done, but weren't 
able to do? You don't need to explain why you weren't able to 
do it, whether it is funding or staffing or whatever. But if 
you could have done one thing that would have helped this 
process, what do you think would have helped to make a 
difference?
    Mr. Artman. I think in the comments that have been made 
here today on both sides that it is clear that we do have some 
issues in the fee to trust process. Those are some older 
regulations based on an old law and the times have changed and 
quicker procedures are needed.
    It is inherently a trust function, and it makes it 
difficult to hand something like that over to the tribe. 
Obviously, we are currently going through a number of lawsuits 
right now on just that very issue, on managing trust. So there 
needs to be a way that we can do it faster and better. I think 
that we made some headway in that area, but it would be nice to 
be able to make additional headway in it.
    One of the things we considered early on was do we tear the 
entire system down and build it up from anew, starting with the 
regulations, and then the next course would be actually 
implementing not just the regulations, but also the goal of 
those regulations. Maybe you do need to tear down the entire 
fee to trust system and bring it back up. By issuing 
guidelines, by issuing the handbook, we are hoping that this is 
going to be a sufficient way to deal with some of these issues, 
but I know it is not going to be enough to accomplish all of 
it. Again, as the Chairman has mentioned, there has been some 
chaos and havoc over there, but we are beginning to get a 
handle on it, and hopefully that trend will continue.
    Senator Murkowski. Thank you.
    The Chairman. Senator Murkowski, thank you very much.
    We thank the witnesses for appearing today.
    This hearing is adjourned.
    [Whereupon, at 10:55 a.m., the Committee was adjourned.]
                            A P P E N D I X

 Prepared Statement of William R. Rhodes, Governor, Gila River Indian 
                               Community
I. Introduction
    Chairman Dorgan and distinguished Members of the Committee, thank 
you for the opportunity for Gila River Indian Community (``the 
Community'') to provide an update on the status of issues raised by the 
Community during the October 4, 2007 hearing on ``Backlogs at the 
Department of Interior.'' As detailed in the Community's written 
testimony for that hearing, the Community has, over the years, 
experienced a variety of communications difficulties and delays 
concerning the responsibilities of the Bureau of Indian Affairs (BIA) 
for lease approval, rights-of-way documentation, and land appraisal 
that have posed challenges to the Community's economic development and 
land consolidation efforts.
    At the October 7 hearing, you indicated a particular interest in 
the status of the master building lease for the Wild Horse Pass 
Corporate Center, the occupancy of which was delayed due to concerns 
raised by BIA regarding the commercial terms of the lease. We are 
pleased to report that the building is now 70 percent occupied by 
tenants and that the lease is no longer part of the BIA backlog. This 
testimony discusses the current status of that building in further 
detail. This testimony also reports on some continued BIA appraisal 
delays affecting the Community's land consolidation efforts and makes 
specific recommendations regarding expediting such appraisals.
II. Lease Status
A. Master Ground Lease
    Our written October 2007 testimony described two lease delay 
issues. The first was with regard to a master ground lease for a 2,400 
acre parcel between the Community and a wholly-owned governmental 
development authority. That lease was submitted to BIA for approval and 
then became mired in delay due to the scope of the lease and issues 
about the extent to which duplicative EIS and EA review would be 
required. The Community decided to withdraw that lease and it is thus 
no longer part of the BIA backlog. The Community came to that decision 
because it determined that it is most efficient from the Community's 
standpoint to submit leases to BIA for review on a project-by-project 
basis rather than as one large ground lease. In that manner, the scope 
of BIA review is more easily defined for each individual lease and each 
lease moves through the review process more smoothly. The Community is 
not expecting to re-submit another large acreage master ground lease to 
BIA in the foreseeable future.
B. Master Building Lease
    The second lease delay issue raised in our October 2007 written 
testimony was with regard to a master building lease for the Wild Horse 
Pass Corporate Center (``Corporate Center''). The Corporate Center is 
located on Reservation trust land. It was totally self financed by the 
Community and is currently managed by the Wild Horse Pass Development 
Authority (WHPDA), a wholly-owned Community enterprise. The land parcel 
for that building was originally part of the above-mentioned master 
ground lease but, prior to the hearing, it was carved out as a separate 
lease and separately submitted to BIA for review. An EA was completed 
for the parcel.
    The Community had questions from the start as to why BIA would need 
to review a lease for commercial office space between the tribe and a 
wholly owned governmental enterprise and associated subleases. Prior to 
the October hearing, the Community had shared a draft of the master 
building lease and the office sublease form with the Pima Agency to 
facilitate review, followed by formal submission of the master building 
lease. It was not until after formal submittal that BIA began to raise 
issues, despite our submittal of drafts for early review. In addition, 
the BIA raised issues related to the commercial terms of the master 
building lease that we believed to be outside the scope of any BIA 
review authority. The Pima Agency and the regional BIA office were also 
not coordinated on the lease review, and it resulted in delay and 
frustration on our part. As a result, the Community was left without 
any clear understanding of what issues BIA was asking it to resolve in 
order to present a lease which would be acceptable. The back and forth 
with BIA on the lease terms delayed occupancy of the building and 
resulted in lost lease income.
    It was at this point of high frustration that the Community 
testified before you on this issue. After the interest shown by you at 
the hearing on the status of the building, BIA officials from the 
regional office and Pima Agency contacted the Community and several 
productive meetings were held at which BIA categorically stated in 
clear terms what was required for lease approval. The primary sticking 
point holding up BIA lease approval involves WHPDA as an office tenant. 
The master building lease allows WHPDA to rent space in the Corporate 
Center for fair market rent but does not specify an amount. It also 
requires WHPDA to sublease office space to paying tenants (non-
Community entities) at or above fair market rent. The master building 
lease leaves it to WHPDA (the tenant) to make this determination. The 
BIA believes that the initial market rent WHPDA pays to the Community 
should be specified in the master building lease. The BIA understands 
that WHPDA is a government enterprise of the Community but apparently 
disagrees with WHPDA as tenant determining what market rent shall be 
(i.e., setting its own rent). The BIA's concern can be easily addressed 
but it illustrates what the Community thinks is BIA over-involvement in 
an internal matter of the Community; i.e., what rent the Community is 
going to charge one of its own entities for occupying office space.
    Based on those meetings, the Community decided to withdraw the 
lease from BIA review in order to further consider the issues raised by 
BIA. Therefore, the lease is not pending with BIA at this time. 
However, given that tenants subleasing space in the building have 
entered into enforceable leases with WHPDA as authorized under the 
master lease between the Community and WHPDA, the Community has 
proceeded with filling the building with both tribal and private 
tenants. The Corporate Center includes approximately 70,000 rentable 
square feet. Currently, approximately 50,000 square feet are occupied. 
Current tenants include Community government departments (which pay 
operating expense but no other rent) and private businesses (which pay 
market rent).
    Currently, WHPDA is transitioning under a change in management and 
has a number of projects on which it is working. As such, the task of 
modifying and resubmitting the master building lease for BIA approval 
is not as pressing as other projects given that WHPDA is able to sublet 
office space currently. WHPDA anticipates resubmitting the master 
building lease to BIA later this summer and we would anticipate an 
efficient review and approval process.
III. Appraisal Delays
A. Background and Status
    In our October 2007 testimony, the Community also highlighted 
delays at BIA with issuance of land appraisals that are hindering the 
Community's land consolidation efforts. Despite the high rate of 
fractionated land within the Community's reservation, the Department of 
Interior is no longer undertaking ILCA land consolidation efforts at 
the Community due to the high cost of land in the Phoenix region. 
Therefore, the Community has established its own tribal land 
consolidation program to purchase and consolidate land interests that 
become available through allottee land sales and through allottee 
probate proceedings.
    In order to purchase allotted land, an appraisal by the Secretary 
is required. The Office of Special Trustee (OST) is tasked with 
responsibility for securing appraisals and is significantly backlogged 
in this process. At this time, the Community has approximately 150 
appraisal requests pending at some stage of the BIA or OST review 
process. Since September 2007, the Community has received only 3 land 
appraisals from BIA necessary to purchase land, despite the numerous 
requests pending.
    The Community, as part of its land consolidation efforts, has also 
actively sought to purchase intestate land interests as an eligible 
purchaser under the American Indian Probate Reform Act (AIPRA), 25 
U.S.C. Sec. 2206. AIPRA was passed by Congress in 2004 and became 
effective on June 20, 2006. The AIPRA provides a Purchase Option at 
Probate which authorizes the Secretary of Interior to sell trust or 
restricted interests in certain intestate lands. An Indian tribe with 
jurisdiction over the interest is an eligible purchaser. To exercise 
the option, the tribe must submit a written request to purchase the 
land and prior to the sale of an interest, the Secretary must appraise 
the interest.
    Since mid-January 2008, the Community has received 29 ``Notice of 
Purchase Option at Probate'' (``Notices'') and 49 ``Notices of Case 
Referral to Office of Hearings and Appeals for Determination of 
Deciding Official'' (a precursor to the Notices) from the Department of 
Interior's Office of Hearings and Appeals (OHA) pursuant to AIPRA. The 
Community expects to continue to receive 5-10 such Notices each week. 
The OST is responsible for conducting appraisals for all trust land and 
has a considerable backlog of appraisals already pending. Appraisal 
delays extend the probate process and prevent the Community from 
acquiring land interests as an eligible purchaser through probate as 
part of its land consolidation efforts.
B. Recommendations
1. Market Surveys
    Under the Indian Land Consolidation Act, the Community was able to 
purchase fractionated interests in allotted land on the Reservation the 
value of which was based on an OST prepared ``Market Survey'' that 
valued each individual allotment on the Reservation. See 25 U.S.C. 
Sec. 2214. Using a Market Survey, the value of fractionated interests 
of allotments can be derived relatively easily, and without OST having 
to complete a full appraisal of each allotment. However, the Community 
has been informed by OST that such Market Surveys are not permitted 
under AIPRA and that OST has received no further guidance on AIPRA and 
use of Market Surveys for appraisals. It is our recommendation that 
through issuance of regulation, if possible, or by amendment to AIPRA 
that Market Surveys be permitted by BIA in order to expedite such 
appraisals in the interest of promoting land consolidation efforts and 
reducing appraisal backlogs for probate purchases.
2. Community Appraisers
    The Community has employed a surveyor at its Land Use Planning and 
Zoning Department who can assume a key role in undertaking appraisal 
responsibilities. BIA has indicated willingness and interest in 
assisting the Community with taking on more responsibility for 
conducting appraisals. We await greater guidance from BIA on how the 
Community can assume responsibility for conducting land appraisals that 
are required as part of its land consolidation efforts.
IV. Conclusion
    We would like to take this opportunity to thank Assistant Secretary 
Artman for the seriousness with which he took our concerns in the face 
of the substantial criticism that BIA faced at the October hearing. 
Over the six months following the hearing, we have come to acknowledge 
that central to many of the concerns we raised at the hearing was our 
intense frustration with a breakdown in the relationship between BIA 
and the Community on these and other issues. Assistant Secretary Artman 
impressed us with his immediate understanding of the legitimate basis 
for our concerns about the responsiveness of BIA as it functions in its 
role as our trustee. He also showed professionalism in the way he 
actively addressed our issues and integrity in the manner with which he 
has fulfilled his role. As he leaves office tomorrow, we thank him for 
his efforts on our behalf and wish him all the best in his future 
endeavors. We have a renewed optimism, as a result of his efforts, 
about the Community's ability to partner with the Department on an 
ongoing basis to achieve mutual goals.
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