[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
H.R. 4384, TO ESTABLISH UTAH NAVAJO TRUST FUND COMMISSION; H.R. 5023,
``REQUIREMENTS, EXPECTATIONS, AND STANDARD PROCEDURES FOR EXECUTIVE
CONSULTATION WITH TRIBES ACT''; AND H.R. 5468, ``BRIDGEPORT INDIAN
COLONY LAND TRUST, HEALTH, AND ECONOMIC DEVELOPMENT ACT OF 2010''
=======================================================================
LEGISLATIVE HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
Wednesday, July 28, 2010
__________
Serial No. 111-63
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
Committee address: http://resourcescommittee.house.gov
COMMITTEE ON NATURAL RESOURCES
U.S. GOVERNMENT PRINTING OFFICE
57-666 WASHINGTON : 2009
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
NICK J. RAHALL, II, West Virginia, Chairman
DOC HASTINGS, Washington, Ranking Republican Member
Dale E. Kildee, Michigan Don Young, Alaska
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Frank Pallone, Jr., New Jersey Jeff Flake, Arizona
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Cathy McMorris Rodgers, Washington
Madeleine Z. Bordallo, Guam Louie Gohmert, Texas
Jim Costa, California Rob Bishop, Utah
Dan Boren, Oklahoma Bill Shuster, Pennsylvania
Gregorio Sablan, Northern Marianas Doug Lamborn, Colorado
Martin T. Heinrich, New Mexico Adrian Smith, Nebraska
Ben Ray Lujan, New Mexico Robert J. Wittman, Virginia
George Miller, California Paul C. Broun, Georgia
Edward J. Markey, Massachusetts John Fleming, Louisiana
Peter A. DeFazio, Oregon Mike Coffman, Colorado
Maurice D. Hinchey, New York Jason Chaffetz, Utah
Donna M. Christensen, Virgin Cynthia M. Lummis, Wyoming
Islands Tom McClintock, California
Diana DeGette, Colorado Bill Cassidy, Louisiana
Ron Kind, Wisconsin
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South
Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico
James H. Zoia, Chief of Staff
Rick Healy, Chief Counsel
Todd Young, Republican Chief of Staff
Lisa Pittman, Republican Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Wednesday, July 28, 2010......................... 1
Statement of Members:
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 4
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California, Prepared statement of............. 61
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 2
Prepared statement of.................................... 3
Statement of Witnesses:
Maryboy, Mark, Montezuma Creek, Utah......................... 50
Prepared statement on H.R. 4384.......................... 51
Matheson, Hon. Jim, a Representative in Congress from the
State of Utah.............................................. 5
McKeon, Hon. Howard P. ``Buck,'' a Representative in Congress
from the State of California............................... 7
Prepared statement on H.R. 5468.......................... 8
Norris, Hon. Ned, Chairman, Tohono O'odham Nation, Sells,
Arizona.................................................... 19
Prepared statement on H.R. 5023.......................... 21
Oatman, Hon. McCoy, Chairman, Nez Perce Tribe, Lapwai, Idaho. 22
Prepared statement on H.R. 5023.......................... 24
Sam, Hon. Joseph Art, Chairman, Bridgeport Indian Colony,
Bridgeport, California..................................... 53
Prepared statement on H.R. 5468.......................... 54
Shirley, Hon. Joe, Jr., President, The Navajo Nation, Window
Rock, Arizona.............................................. 42
Prepared statement on H.R. 4384.......................... 44
Slowman-Chee, Dr. Janet, Teec Nos Pos, Arizona............... 47
Prepared statement on H.R. 4384.......................... 49
Tsosie, Paul, Chief of Staff, Office of the Assistant
Secretary for Indian Affairs, U.S. Department of the
Interior, Washington, D.C.................................. 9
Prepared statement on H.R. 4384.......................... 10
Prepared statement on H.R. 5023.......................... 11
Prepared statement on H.R. 5468.......................... 15
Williams, Robert A., Jr., Professor of Law and Director of
the Indigenous Peoples Law and Policy Program, The
University of Arizona Rogers College of Law, Tucson,
Arizona.................................................... 27
Prepared statement on H.R. 5023.......................... 28
LEGISLATIVE HEARING ON H.R. 5023, TO PRESCRIBE PROCEDURES FOR EFFECTIVE
CONSULTATION AND COORDINATION BY FEDERAL AGENCIES WITH FEDERALLY
RECOGNIZED INDIAN TRIBES REGARDING FEDERAL GOVERNMENT ACTIVITIES THAT
IMPACT TRIBAL LANDS AND INTERESTS TO ENSURE THAT MEANINGFUL TRIBAL
INPUT IS AN INTEGRAL PART OF THE FEDERAL DECISION-MAKING PROCESS.
``REQUIREMENTS, EXPECTATIONS, AND STANDARD PROCEDURES FOR EXECUTIVE
CONSULTATION WITH TRIBES ACT, RESPECT ACT''; H.R. 4384, TO ESTABLISH
THE UTAH NAVAJO TRUST FUND COMMISSION, AND FOR OTHER PURPOSES; AND H.R.
5468, TO TAKE CERTAIN FEDERAL LANDS IN MONO COUNTY, CALIFORNIA, INTO
TRUST FOR THE BENEFIT OF THE BRIDGEPORT INDIAN COLONY. ``BRIDGEPORT
INDIAN COLONY LAND TRUST, HEALTH, AND ECONOMIC DEVELOPMENT ACT OF
2010.''
----------
Wednesday, July 28, 2010
U.S. House of Representatives
Committee on Natural Resources
Washington, D.C.
----------
The Committee met, pursuant to call, at 10:00 a.m. in Room
1324, Longworth House Office Building, Hon. Nick J. Rahall, II,
[Chairman of the Committee] presiding.
Present: Representatives Rahall, Napolitano, Grijalva,
Christensen, Lujan, Hastings, Lummis, Herseth Sandlin, Inslee
and Baca.
STATEMENT OF HON. NICK J. RAHALL, II, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WEST VIRGINIA
The Chairman. The Committee on Natural Resources will come
to order. The Committee meets this morning to conduct a hearing
on three bills related to Indian matters: H.R. 5023, the
RESPECT Act, H.R. 4384, the Utah Navajo Trust Fund Act, and
H.R. 5468, the Bridgeport Indian Colony Land Trust, Health, and
Economic Development Act of 2010. Over the last few years, the
Committee has received numerous complaints from Indian Country
about the Administration's failure to effectively consult with
tribes despite the Executive Order mandating that agencies
consult and collaborate with tribal officials in the
development of Federal policies that impact their tribal
communities. Even when consultation does occur, tribes report
that the Administration often construes it so narrowly that it
merely means advance notice of what the Administration intends
to do--again, without adequate consideration of tribal views.
President Obama renewed his commitment to the Executive
Order by directing agencies to develop a plan of action to
implement policies and directives of the Executive Order within
90 days. Despite this directive, some agencies failed to meet
the deadline, leaving the status quo and inconsistent
application of the tribal consultation policy intact. This has
resulted in a breakdown of the Nation-to-Nation relationship
and the mutual trust between governments that is necessary for
the United States to meet its trust responsibility to Indian
tribes. Our Committee colleague, Raul Grijalva, has introduced
H.R. 5023 to address this situation, and I commend him for it.
His bill prescribes procedures for the effective consultation
and coordination by Federal agencies with the Indian tribes and
would ensure that meaningful tribal input is an integral part
of the Federal decisionmaking process.
Turning to H.R. 4384, until recently, the State of Utah had
been administering oil and gas royalties through a trust fund
created in 1933 for the benefit of individual Navajo members
residing in Utah. The State no longer wishes to engage in this
activity. As such, our colleague from Utah, Mr. Jim Matheson,
has introduced H.R. 4384 to establish the Utah Navajo Trust
Fund Commission to administer the Utah Navajo Trust Fund,
replacing the State of Utah as trustee. The Committee has been
working with Mr. Matheson, and I commend him for his leadership
on this issue and many others important to Indian Country. We
have been working with him to draft changes to the bill in
order to ensure that the beneficiaries have local control over
the Trust Fund. In addition, the bill would set forth strong
accountability measures to ensure that the Trust Fund will
continue for future generations.
The third bill on our agenda, H.R. 5468, is sponsored by
our colleague from California, Mr. Buck McKeon. The Bridgeport
Indian Colony is a Federally recognized Indian tribe with a 40-
acre reservation located near the town of Bridgeport,
California. Presently, the reservation lands are insufficient
for the housing and community development needs of the tribe.
H.R. 5468 would place two separate tracts of BLM land in trust
for the benefit of the Bridgeport Indian Colony. Taking these
lands into trust for the benefit of the Bridgeport Indian
Colony would facilitate the tribe's ability to provide housing,
community development and much needed health services for its
membership. That concludes my opening statement. I look forward
to this morning's testimony, and I recognize the Ranking
Member, Mr. Hastings of Washington.
[The prepared statement of Chairman Rahall follows:]
Statement of The Honorable Nick J. Rahall, Ii, Chairman,
Committee on Natural Resources, on H.R. 5023, H.R. 4384, and H.R. 5468
The Committee meets this morning to conduct a hearing on three
bills related to Indian matters: H.R. 5023, the ``RESPECT Act''; H.R.
4384, the ``Utah Navajo Trust Fund Act''; and H.R. 5468, the
``Bridgeport Indian Colony Land Trust, Health, and Economic Development
Act of 2010.''
Over the last few years, the Committee has received numerous
complaints from Indian Country about Administration failures to
effectively consult with tribes, despite an Executive Order mandating
that agencies consult and collaborate with tribal officials in the
development of federal policies that impact tribal communities.
Even when consultation does occur, tribes report that the
Administration often construes it so narrowly that it merely means
``advance notice'' of what an Administration intends to do, again
without adequate consideration of tribal views.
President Obama renewed his commitment to the Executive Order by
directing agencies to develop a plan of action to implement policies
and directives of the Executive Order within 90 days. Despite this
directive, some agencies failed to meet the deadline, leaving the
status quo and inconsistent application of the tribal consultation
policy intact.
This has resulted in a breakdown of the Nation-to-Nation
relationship and the mutual trust between governments that is necessary
for the United States to meet its trust responsibility to Indian
tribes.
Our Committee colleague, Raul Grijalva, has introduced H.R. 5023 to
address this situation and I commend him for it. His bill prescribes
procedures for the effective consultation and coordination by federal
agencies with Indian tribes, and would ensure that meaningful tribal
input is an integral part of the federal decision-making process.
Turning to H.R. 4384, until recently the State of Utah had been
administering oil and gas royalties through a trust fund created in
1933 for the benefit of individual Navajo members residing in Utah. The
State no longer wishes to engage in this activity.
As such, our colleague from Utah, Jim Matheson, has introduced H.R.
4384 to establish the Utah Navajo Trust Fund Commission to administer
the Utah Navajo Trust Fund, replacing the State of Utah as trustee.
The Committee has been working with Mr. Matheson to draft changes
to the bill in order to ensure that the beneficiaries have local
control over the Trust Fund. In addition, the bill would set forth
strong accountability measures to ensure that the Trust Fund will
continue for future generations.
The third bill on our agenda, H.R. 5468, is sponsored by our
colleague from California, Buck McKeon. The Bridgeport Indian Colony is
a federally recognized Indian tribe with a 40-acre reservation located
near the town of Bridgeport, California. Presently, the reservation
lands are insufficient for the housing and community development needs
of the Tribe.
H.R. 5468 would place two separate tracts of BLM land in trust for
the benefit of the Bridgeport Indian Colony. Taking these lands into
trust for the benefit of the Bridgeport Indian Colony would facilitate
the Tribe's ability to provide housing, community development, and much
needed health services for its membership.
I look forward to hearing the testimony this morning.
______
Mr. Hastings. Thank you, Mr. Chairman. Mr. Chairman, I
don't have an opening statement, but I do look forward to the
testimony of our two colleagues on their bills and the
testimony of the witnesses--three colleagues. Sorry, Mr.
Grijalva, I didn't see you over there. Our three colleagues on
their bills, and also the testimony of the witnesses. With
that, I yield back.
The Chairman. Does the gentleman from Arizona, Mr.
Grijalva, wish to make an opening statement?
STATEMENT OF HON. RAUL GRIJALVA, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you. Thank you very much, Mr. Chairman.
I am very grateful to you for holding this hearing today on the
issue that is important to many of my constituents in southern
Arizona and many others across the nation, which is the
relationship between the Federal Government and tribal
governments. We all know since the formation of the Union that
the United States has recognized Indian tribes as domestic,
dependent nations under its protection. The Constitution gave
Congress exclusive jurisdiction over Indian affairs and set
forth as supreme law of the land the provisions of any treaties
negotiated with tribes. The Federal Government has enacted
numerous statutes, promulgated numerous regulations that
establish and define a trust relationship with Native Indian
Tribes.
However, Congress has never established broad-based
standards for the behavior of the Federal Government itself in
its interaction with tribes. This is left to the Executive
Branch, often with less than ideal results. In 2000, President
Clinton issued Executive Order 13175. This Executive Order
reaffirmed the government-to-government relationship between
the United States and Indian tribes and established the
principle that the Federal Government needs to consult
meaningfully with tribes before undertaking activities that
will have tribal impacts. However, the Order left the
formulation of implementing regulations entirely up to each
agency with no specific direction for how to do so. As a
result, Federal agencies have too often decided on the course
of action and consulted with affected tribes by notifying these
tribes of the decision that had already been made.
In fact, in my office, the number one complaint I receive
from tribal representatives is that the Federal Government took
action without tribal consultation. This is different from a
disagreement over policy. This is a relationship issue. It is
about respect and the obligation of the United States to act
with integrity and maturity in its dealings with the unique and
special entities that are our Indian tribes. Real consultation
requires a two-way exchange of information, a willingness to
listen, an attempt to understand and genuinely consider each
other's opinions, beliefs and desired outcomes, and a seeking
of an agreement on how to proceed concerning the issues at
hand. Consultation does not guarantee agreement, but at a
minimum contributes to the building of relationships based on
mutual respect and understanding.
Consultation could be considered successful when each party
demonstrates a genuine commitment to learn, acknowledge and
respect the positions, perspectives and concerns of the other
party. The RESPECT Act does two things. First, it sets into law
provisions of Executive Order 13175 concerning tribal
sovereignty and Indian tribal waivers. Second, it takes the
mandate for consultation with tribes and prescribes procedures
that all agencies must follow. It is my hope that the officials
that will be interacting with tribes according to these rules
will develop a special relationship with the partners in the
tribes. The RESPECT Act shows that the United States takes its
government-to-government relationship with tribes very, very
seriously and will result in better interactions that will
greatly benefit all parties. I appreciate again, Mr. Chairman,
you holding this hearing, and I look forward to continuing to
work with my colleagues on the Committee on this issue as it
moves forward. Thank you very much. I yield back.
The Chairman. The Chair thanks the gentleman from Arizona,
and again, appreciates his leadership in bringing this issue
before us. We will now go to our first panel comprised of two
of our colleagues, The Honorable Jim Matheson, U.S. House of
Representatives, from Utah, Second District, and the sponsor of
H.R. 4384, and our colleague from California, The Honorable
Buck McKeon, sponsor of H.R. 5468. Gentlemen, we welcome you
and thank you for your leadership on these issues. We do have
your prepared testimony, and of course, we have read every word
of it and it will be submitted to the record as if read. You
may proceed as you desire. Jim, you want to proceed first?
STATEMENT OF HON. JIM MATHESON, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF UTAH
Mr. Matheson. Well, thank you, Mr. Chairman. Thanks,
Ranking Member Hastings as well. I also want to first
acknowledge my constituents, Mark Maryboy and Dr. Janet
Slowman-Chee, who are agreeing to testifying at today's
hearing. They will be on the next panel. Today we are
addressing a unique situation that needs to be resolved. As the
Chairman mentioned in his opening comments, the Utah Navajo
Trust Fund was created by Congress in 1933 and it was set up to
administer revenues from oil and gas leases on land that was
ceded to the Utah Navajos. Since 1933, 37 and one-half percent
of the revenues have been administered by the State of Utah and
the remaining 62 and one-half percent have been managed by The
Navajo Nation for the benefit of all Navajos. So that has been
the relationship since 1933.
The State of Utah, based on this Act of Congress in 1933,
was required to use the funds for the benefit of Utah Navajos
to provide for educational benefits, road and transportation
improvements, and to develop housing for the Utah Navajo
Chapters. Now, it is important to note that, as I said earlier,
this was unique. Utah is the only state in the Nation that had
been directed by the Federal Government to administer a trust
fund for the benefit of American Indians whose lands are within
specific state boundaries. In 2008, after years of litigation
for mismanagement of the trust fund, the Utah State Legislature
enacted legislation divesting the State of Utah of the
responsibility for managing this fund. This was effective at
the end of 2009.
Funding for approved construction projects and education
benefits continued until June 30 of this year, but since then,
Utah Navajos have not had access to the funds, so that is why
it is important we move forward on resolving the situation. I
said this was unique. When this first came to my office, we
tried to come up with a solution. We came to the Committee
staff as well and said what should we do? They said there is no
precedent for this, we have never seen something like this
before, so this has taken a lot of work and a lot of thought to
come up with a practical, pragmatic, and effective solution. My
office has met with each of the Chapters in Utah. The Natural
Resources Committee staff came out to Utah to also meet with
each of these Chapters. It was clear during these discussions
that the Utah Navajo Chapters would like to determine how the
37 and a half percent, that Utah share, is going to be managed
in Utah and how they are going to be spent.
Now, I introduced H.R. 4384 after initial discussions and
input with the Chapters earlier, and I did that in the past
year. Since that time, it has generated a lot more discussion.
So the text, as introduced today, isn't what I think we should
do. We have come up with a series of changes that are right now
before Legislative Counsel, and I am sorry that text isn't
available for this hearing today, but I think they are going to
help resolve some of the concerns that have been outstanding.
We have also worked with my senator from Utah, Senator Bennett,
who had a different bill he had introduced to resolve those
differences, and we are now on the same page in terms of how we
want to try to move forward and resolve this situation.
By the way, as part of creating these changes to the text,
as it was introduced, the Natural Resources Committee conducted
another set of hearings out in Utah, meeting with all the
Chapters. So the Committee has made two separate trips to Utah
to meet with all the Chapters, to work through these issues and
that is what legislating is all about. I think we have worked
hard to try to improve this bill. Let me just briefly update
you on some of the issues we have tried to address in revising
this bill. The bill is going to allow for local control of the
funds and it gives the power to the beneficiaries to determine
what spending decisions are made, and allows them to choose a
financial manager for the trust fund.
There are over 7,000 Utah Navajos. Local control will
ensure that the funds are committed to projects within the
State of Utah. The ability to manage these funds will be
providing an expedited process for much needed improvements to
transportation and education benefits. Now, by codifying an
election process to allow for beneficiaries to decide the best
management, this bill will ensure that the beneficiaries always
have a mechanism to determine a new manager if there is
mismanagement. Now, Mr. Chairman, I know that my friend, and I
mean that, my friend President Shirley from The Navajo Nation,
is going to testify, and friends sometimes agree on things, and
in this case, we have a little bit of a different point of
view.
The Navajo Nation is going to be opposed to this bill
because they want to manage all the funds. I believe this is a
Utah-specific issue, it has been that way since 1933, and I
think those beneficiaries located in San Juan County, Utah,
should make the spending decisions. I also believe that in
order to protect the beneficiaries in Utah, and given the
history of mismanagement of this fund over many decades, we
should allow, in fact, we must allow, for the Utah Navajos a
process by which they can litigate in Federal Court if
negligence is suspected in the fund. Unfortunately, due to
tribal law, Utah Navajos would be unable to litigate against
The Navajo Nation in Federal Court due to tribal sovereignty if
The Navajo Nation was administering this fund.
Please understand my bill does nothing to affect The Navajo
Nation authority or jurisdiction over its lands, citizens,
resources, so there is no impact on The Navajo Nation's
internal affairs. So, Mr. Chairman, I appreciate this
opportunity to come before the Committee regarding this unique
situation. This has been a tough one, and I really want to
acknowledge all the effort that the Committee has put forth to
help my office figure out a path to resolve this issue. It is
an important one for us to resolve for my constituents in Utah,
and this Committee has acted very thoughtfully and productively
in helping me resolve this issue. I look forward to moving
ahead with this legislation. I will yield back my time.
STATEMENT OF HON. HOWARD P. ``BUCK'' McKEON, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. McKeon. Thank you, Chairman Rahall, Ranking Member
Hastings, for holding this hearing today on H.R. 5468, the
Bridgeport Indian Colony Land Trust, Health, and Economic
Development Act of 2010. I want to also thank Chairman Joseph
Art Sam and Vice Chairman Herb Glaser, both leaders of the
tribe, for making the trip from California to be here today in
support of this bill. They will be testifying later. This
simple, but important piece of legislation will help the tribe
to create critical economic development and access better
health care for both the tribe and the surrounding community.
This legislation provides a good model for helping a sovereign
tribe build self-sufficiency in partnership with local
governments and the Federal Government.
The tribe worked closely for many months with Mono County
to come to a fair and transparent agreement on county services
and tribal development plans. Prior to introduction of this
legislation, the tribe and county entered into a detailed
Memorandum of Understanding which addresses critical areas of
law enforcement, emergency medical services and health and
safety codes. Most importantly, the tribe received the
unconditional and unanimous support of the county for taking
the two parcels in this legislation into trust. Currently, the
tribe has a 40-acre reservation in a geographically remote area
of Mono County near the Town of Bridgeport, the County Seat.
However, the size of the reservation is insufficient for the
tribe's housing and community development needs.
Many members of the tribe have expressed interest in
returning home should housing and economic opportunities become
more readily available. In order to create this economic
development and housing, my legislation would transfer from the
BLM to the BIA to hold in trust for the tribe one parcel of
land, approximately 31 acres, contiguous to the tribe's
existing reservation. The tribe has been working to acquire
this parcel for approximately 15 years. Expansion of the
reservation into this parcel will allow for increasing tribal
self-sufficiency with creation of an RV park, gas station,
convenience store and residential housing for tribal members
and a recreation center for the benefit of the tribal and local
community.
Second, the tribe needs better access to health care.
Tribal members currently have to drive 90 miles to Bishop to
obtain Indian health care services. In the 1980s, the tribe
worked with the Toiyabe Indian Health Project to develop a
health clinic on the approximately 7-acre property also
proposed to be taken into trust with this legislation. That
clinic closed in 2006, but both the tribe and the Toiyabe agree
it needs to be reopened. Reopening of the clinic would greatly
improve the availability of health care for the tribes'
members, as well as non-Native residents of Mono County. My
legislation would transfer from the BLM to the BIA to hold in
trust this parcel also for the benefit of the tribe. Again,
thank you for holding this hearing today, and I look forward to
working with the Committee to move forward on this important
legislation for the benefit of the Bridgeport Indian Colony.
Thank you, Mr. Chairman.
[The prepared statement of Mr. McKeon follows:]
Statement of The Honorable Howard P. ``Buck'' McKeon, a Representative
in Congress from the State of California, on H.R. 5468
Thank you, Chairman Rahall and Ranking Member Hastings for holding
this hearing today on H.R. 5468, The Bridgeport Indian Colony Land
Trust, Health, and Economic Development Act of 2010. I want to also
thank Chairman Joseph Art Sam and Vice-Chairman Herb Glazer, both
leaders of the Tribe, for making the trip from California to be here
today in support of this bill. This simple but important piece of
legislation will help the Tribe to create critical economic development
and access better healthcare for both the Tribe and the surrounding
community.
This legislation provides a good model for helping a sovereign
Tribe build self-sufficiency in partnership with local and Federal
government. The Tribe worked closely for many months with Mono County
to come to a fair and transparent agreement on county services and
tribal development plans.
Prior to introduction of this legislation, the Tribe and County
entered into a detailed Memorandum of Understanding which addresses
critical areas of law enforcement, emergency medical services, and
health and safety codes. Most importantly, the Tribe received the
unconditional and unanimous support of the County for taking the two
parcels in this legislation into trust.
Currently, the Tribe has a 40-acre reservation in a geographically
remote area of Mono County near the town of Bridgeport. However, the
size of the reservation is insufficient for the Tribe's housing and
community development needs.
Many members of the Tribe have expressed interest in returning home
should housing and economic opportunities become more readily
available. In order to create this economic development and housing, my
legislation would transfer from the BLM to the BIA to hold in trust for
the Tribe one parcel of land of approximately 31 acres and contiguous
to the Tribe's existing reservation.
The Tribe has been working to acquire this parcel for approximately
15 years. Expansion of the reservation into this parcel will allow for
increasing tribal self-sufficiency with creation of an RV park, gas
station, convenience store, residential housing for Tribal members, and
a recreation center for the benefit of the Tribal and local community.
Secondly, the Tribe needs better access to health care. Tribal
members currently have to drive 90 miles to Bishop to obtain Indian
healthcare services. In the 1980s, the Tribe worked with the Toiyabe
Indian Health Project to develop a health clinic on the approximately
7-acre property also proposed to be taken into trust in the
legislation. That clinic closed in 2006, but both the Tribe and Toiyabe
agree it needs to be reopened.
Reopening the clinic would greatly improve the availability of
healthcare for the Tribe's members as well as non-native residents of
Mono County. My legislation would transfer from the BLM to the BIA to
hold in trust this parcel for the benefit of the tribe.
Again, thank you for holding this hearing today. I look forward to
working with the Committee to move forward on this important
legislation for the benefit of the Bridgeport Indian Colony.
______
The Chairman. The Chair thanks both of our colleagues for
their testimony. I have no questions. I am sure some of our
later panelists will be responding to both of our colleagues'
testimony. Mr. Hastings? Dr. Christensen? Mr. Grijalva?
Gentlemen, thank you. I appreciate it. Our next panel
testifying on all three bills is Mr. Paul Tsosie, the Chief of
Staff, the Office of the Assistant Secretary for Indian
Affairs, Department of the Interior, Washington, D.C. Mr.
Tsosie, we welcome you to the Committee on Natural Resources.
We do have your prepared testimony. It will be made part of the
record as if actually read. You may proceed as you desire.
STATEMENT OF HON. PAUL TSOSIE, CHIEF OF STAFF, OFFICE OF THE
ASSISTANT SECRETARY FOR INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR, WASHINGTON, D.C.
Mr. Tsosie. Thank you. Good morning, Chairman Rahall,
Ranking Member Hastings and Members of the Committee. My name
is Paul Tsosie. I am the Chief of Staff for the Assistant
Secretary for Indian Affairs, Department of the Interior. First
of all, I want to thank you for this opportunity to testify on
H.R. 5023, H.R. 4384 and H.R. 5468. Before I start my
testimony, I just want to thank Darren Pete, Chastity Bedonie
and Sequoyah Simermeyer in their help in my preparation for
this testimony. H.R. 5023, the RESPECT Act, the Requirements,
Expectations, Standard Procedures for Executive Consultation
with Tribes Act, calls for detailed procedures for
consultation. Just as a note, this testimony presents the views
of the Department of the Interior. However, because H.R. 5023
would affect almost every agency in the Federal Government,
other agencies should be afforded an opportunity to review and
comment on this bill.
The Department of the Interior, we strongly support tribal
consultations. We have a strong commitment to regular and
meaningful consultation and collaboration with Indian tribes.
As a piece of background, on November 6, 2000, President
Clinton signed Executive Order 13175, entitled Consultation and
Coordination With Indian Tribal Governments. As a follow-up on
this Executive Order, President Barack Obama on November 5,
2009 signed a Presidential Memorandum which called for a
detailed plan of action to carry out 13175. Now this detailed
plan of action was developed. What happened is we went out to
Indian Country. There were seven meeting locations all across
the country, all the way from Alaska to Washington, D.C. We got
input from over 300 tribal leaders and we submitted plans of
action to the Administration.
Now we are in the process of carrying out this plan of
action. This plan of action calls for each agency to have a
point person responsible for coordinating and implementation of
their plans of action. These plans of action, we are going to
submit reports to the Administration, and these reports will
take place every year. Now, we have essentially consulted on
consultation with the Indian tribes. We are getting the input
from Indian tribes all over across the nation. Such an all-
inclusive, governmentwide determined effort to consult with
tribal nations has never been before undertaken with the United
States Government. It is certainly a marked contrast to the
past and serves as the foundation for a new era in Federal
tribal relations.
Despite the fact that we have put a lot of resources and
time into consulting with Indian tribe on our internal
consultation process, we cannot support H.R. 5023 for a number
of concerns. H.R. 5023 seeks to codify 13175 Executive Order by
prescribing detailed standards that an agency must follow
before undertaking any activity that may have a substantial
direct impact upon the lands or interests of one or more Indian
tribes on the relationship between the Federal Government and
Indian tribes or on the distribution of power and
responsibilities between the Federal Government and Indian
tribes. A couple of our other concerns are that in H.R. 5023
some of the definitions are too broad. It also calls for
specific and excessively burdensome procedures and it is a one
size fits all approach.
In addition to that, it also subjects the Department of the
Interior and other Federal agencies to judicial review. Based
upon an allegation, tribes can go to Court, get a restraining
order and hold the Federal Government liable for damages from
adverse impacts on perceived violations of H.R. 5023. So, in
conclusion, we cannot support H.R. 5023. However, I want to
reemphasize our strong commitment that we have to support
tribal consultation, to support regular and meaningful
consultation and collaboration with Indian tribes.
H.R. 4384, which is established to establish the Utah
Navajo Trust Fund Commission. We are not taking a stance on
this legislation. We are looking at three issues right now to
see their impacts upon the Federal Government. First of all,
whether the Commission, or its agents, or the employees of the
Commission are arms of the Federal Government, and second,
whether this bill creates a causative action against the United
States Government, and third, the Department would like more
time to review Section 12 of the bill which would require the
State of Utah to transfer funds it currently holds in trust to
the new trust administrator selected under this bill and would
require the current beneficiaries of the trust to deposit any
damages they may recover from the State of Utah in litigation
into the new trust fund created by this bill. So we just want
to take some time to review Section 10[f], 12 and 19 of this
bill.
H.R. 5468, Bridgeport Indian Colony Land Trust, Health and
Economic Development Act. We are supporting this bill. What it
does is it takes an internal transfer of 39 acres of public
lands and transfers that from the BLM to the Department of the
Interior to hold in trust for the Bridgeport Indian Colony.
This land is in Bridgeport, Mono County, California, and we
support this piece of legislation, and we look forward to
working together with the sponsor and the Committee to make
minor technical modifications. At this time, if there are any
questions.
[The prepared statements of Mr. Tsosie follows:]
Statement of Paul Tsosie, Chief of Staff, Office of the Assistant
Secretary--Indian Affairs, U.S. Department of the Interior, on H.R.
4384
Good morning Mr. Chairman, Ranking Member, and members of the
Committee. Thank you for the opportunity to provide the Department of
the Interior's (Department) position on H.R. 4384, a bill that seeks to
establish the Utah Navajo Trust Fund Commission, and for other
purposes. The Department takes no position on this legislation, but
would like more time to review two provisions in the bill.
In 1933, Congress established the Utah Navajo Trust Fund (UNTF)
through legislation (47 Stat.1418), which designated Utah as the
trustee. The corpus of the UNTF comes from 37.5 percent of net
royalties derived from exploitation of oil and gas deposits under the
Navajo Reservation's Aneth Extension located in the State of Utah.
According to the statute, the 37.5 percent net royalties are to be paid
to the State of Utah, which was to be used for the health, education
and general welfare of the Navajo Indians residing in the Aneth
Extension. In 1968, Congress expanded the beneficiary class to include
all Navajo Indians living in San Juan County, Utah (Pub.L. 90-306, 82
Stat. 121).
In approximately 1959, oil and gas wells in the Aneth Extension
began producing in paying quantities, and the United States Department
of the Interior, through oil and gas mining leases on the Navajo tribal
land, began collecting oil and gas royalties. The leases are between
the Navajo Nation and the producer, and are subject to approval by the
Secretary of the Interior. \1\ The State of Utah is not a party to the
tribal leases.
---------------------------------------------------------------------------
\1\See, e.g., 25 U.S.C. Sec. 396a (provision in 1938 Indian
Mineral Leasing Act allowing tribe to lease unallotted Indian land for
mining purposes, subject to Secretary of Interior approval); 25 C.F.R.
Pt. 211 (Leasing of Tribal Lands for Mineral Development).
---------------------------------------------------------------------------
Previously, the Navajo Nation would collect the Aneth lease
royalties directly and remits 37.5 percent to the UTNF account
administered by the State of Utah. The State, upon receipt of each
check, deposits it into the Trust Fund and invests the unused royalty
funds according to rules set forth in Utah's statutes. In 2008,
however, the Utah State Legislature enacted legislation that divested
the State of the responsibility of managing the UNTF.
H.R. 4384 would establish a Utah Navajo Trust Commission
(Commission) to administer the Utah Navajo Trust Fund. The Commission
would be made up of 7 members, elected from each of 7 Navajo Chapters
located in Utah. Among other duties, the Commission would be
responsible for selecting a Trust Administrator for the Utah Navajo
Trust Fund; ensuring that amounts in the Trust are invested, managed,
and administered for the health, education, and general welfare of the
beneficiaries; establishing written investment goals, objectives, and
guidelines for the investment of the Trust assets, determining which
projects are to be funded; authorizing the expenditure of amounts in
the Utah Navajo Trust Fund for approved projects; report to the
beneficiaries through each Chapter; limiting the amounts of the Trust
Fund spent on the Commission's administrative costs; and establishing
policies and procedures for Trust Fund management and accounting.
The legislation would also direct the State of Utah to prepare and
audit an accounting of the Trust assets in the UNTF, as established and
administered by the State of Utah prior to its divestiture, and to
transfer the Trust Assets to the Trust Administrator of the Commission.
The Department does not take a position on this bill but does note
two provisions in the bill and would like more time to review these
provisions. First, Section 10(f) of the bill, which provides that the
Commission, its officers, agents, and employees would not be a
department, agency, or instrumentality of the Federal Government and
would not be subject to Title 31 of the United States Code. Moreover,
the Commission, its officers and employees would not be considered
officers, employees, or agents of the Federal Government. Secondly, the
Department would also like more time to review Section 19 of the bill
which provides that the bill would not create a cause of action against
the United States, and that the United States would not be liable for
any actions or inactions of the Commission or the Trust Administrator,
but that nothing in the bill would affect the liability of the United
States for misdeeds by the United States when it had control over Trust
assets. Finally, the Department would like more time to review section
12 of the bill, which would require the State of Utah to transfer funds
it currently holds in trust to the new Trust Administrator selected
under this bill and would require the current beneficiaries of the
trust to deposit any damages they may recover from the State of Utah in
litigation into the new Trust Fund created by this bill.
Again, the Department takes no position on H.R. 4384 but would like
more time to review Section 10(f), 12 and 19 of the bill. This
concludes my statement. I would be happy to answer any questions the
Committee may have.
______
Statement of Paul Tsosie, Chief of Staff, Office of the Assistant
Secretary--Indian Affairs, U.S. Department of the Interior, on H.R.
5023
Good morning, Chairman Rahall, Ranking Member Hastings, and Members
of the Committee. Thank you for the opportunity to appear before you
today to discuss H.R. 5023, the Requirements, Expectations, and
Standard Procedures for Executive Consultation with Tribes Act (RESPECT
Act). This legislation would prescribe detailed procedures for
consultation between Federal agencies and federally recognized Indian
tribes. This testimony presents the views of the Department of the
Interior, however, because H.R. 5023 would affect every ``agency''
within the meaning of 44 U.S.C. Sec. 3502(1), other agencies should be
afforded an opportunity to review and comment on the bill.
Consultation that respects the sovereignty of tribal governments
and the right of tribal nations to govern themselves is a critical
ingredient for a sound, productive Federal-tribal relationship. Thus,
regular and meaningful consultation and collaboration with tribal
officials is a touchstone of this Administration's policy with respect
to Indian tribal governments. Though we certainly recognize the ways in
which dialogue has greatly improved Federal policy toward Indian
tribes, we cannot support H.R. 5023 because it is vague and overbroad.
Indeed, the law has the potential to bring much of the Federal
government to a standstill.
Tribal Consultation
Executive Order (E.O.) 13175, entitled Consultation and
Coordination With Indian Tribal Governments, was signed on November 6,
2000. It directed each agency to have ``an accountable process to
ensure meaningful and timely input by tribal officials in the
development of regulatory policies that have tribal implications.'' The
phrase ``policies that have tribal implications'' refers to
``regulations, legislative comments or proposed legislation, and other
policy statements or actions that have substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.''
Section 10 of E.O. 13175 makes absolutely clear that the Executive
Order is intended ``only to improve the internal management of the
executive branch and is not intended to create any right, benefit, or
trust responsibility, substantive or procedural, enforceable at law by
a party against the United States, its agencies, or any person.''
To further the purposes of E.O. 13175, and because this
Administration believes that tribal nations do better when they make
their own decisions, on November 5, 2009, President Barack Obama
invited leaders from all 564 federally recognized tribes to the White
House Tribal Nations Conference. The President was joined by Members of
Congress, several cabinet secretaries and other senior administration
officials from the Departments of State, Justice, Commerce, Education,
Energy, Agriculture, Labor, Health and Human Services, Housing and
Urban Development, the Interior, and the Environmental Protection
Agency. At the Conference, the President signed a memorandum directing
Federal agencies to submit detailed plans of action for how they will
secure regular and meaningful consultation and collaboration with
tribal officials in the development of Federal policies that have
tribal implications, as defined by E.O. 13175.
In accordance with the President's memorandum, Federal agencies
immediately began developing their detailed plans of action. Numerous
agencies hosted listening and consultation sessions with tribal leaders
across the country. For example, on November 23, 2009, the Department
of the Interior sent a letter to all federally recognized tribes
inviting tribal leaders to engage in an interactive dialogue discussing
their experiences with consultation. The letter also asked tribal
leaders to suggest ways to improve tribal consultation practices, for
inclusion in Interior's Action Plan. The Department hosted full day,
face-to-face listening sessions that brought together tribal leaders
with senior Department officials representing all Interior bureaus and
offices, in seven locations - Anchorage, Alaska; Portland, Oregon;
Washington, D.C.; Ft. Snelling, Minneapolis; Oklahoma City, Oklahoma;
Phoenix, Arizona; and Palm Springs, California. The Department invited
representatives from other Federal agencies, such as the Department of
Labor, the Environmental Protection Agency, and the Department of
Education, to attend these listening sessions. Attendance at the
listening sessions totaled approximately 300 tribal leaders and
representatives and over 250 officials from Interior and other Federal
agencies.
To date, all of the largest agencies - including every cabinet
department as well as major agencies such as the EPA - have submitted
Plans of Action. Now, every Cabinet agency is implementing its own
detailed plan of action. To ensure accountability, each agency has a
point person responsible for coordinating implementation of the plan.
In the coming months, these agencies will submit progress reports to
update the Administration on steps they have taken to meet the
requirements of the November 5 memorandum. In fact, they will submit
such progress reports every year hereafter. Such an all-inclusive,
government-wide, determined effort to consult with tribal nations has
never before been undertaken within the United State government. It is
certainly a marked contrast to the past and serves as the foundation
for a new era in Federal-tribal relations.
H.R. 5023
H.R. 5023 seeks to codify E.O. 13175 by prescribing detailed
standards that an ``agency'' must follow before undertaking any
``activity'' that ``may have substantial direct impacts'' on the lands
or ``interests'' of one or more Indian tribes, on the relationship
between the Federal Government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian tribes.
H.R. 5023 would apply to every ``agency'' within the meaning of 44
U.S.C. Sec. 3502(1), which includes ``any executive department,
military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or any
independent regulatory agency.'' \1\ Furthermore, the Act would apply
to every ``activity,'' which is defined to include ``a project,
program, policy or other action including, infrastructure projects,
regulations, program comments by Federal entities, and agency-drafted
proposed legislation, that is funded in whole or in part under the
direct or indirect jurisdiction of an agency, including those carried
out by or on behalf of an agency; those carried out with Federal
financial assistance; or those requiring a Federal permit, license, or
approval.'' Notably, the bill as drafted defines neither the phrase
``may have substantial direct impacts,'' nor what constitutes an Indian
tribe's ``interests.''
---------------------------------------------------------------------------
\1\ The term ``agency'' does not include, however, the Government
Accountability Office, the Federal Election Commission, the governments
of the District of Columbia and of the territories and possessions of
the United States, and their various subdivisions, nor does it include
Government-owned contractor-operated facilities, including laboratories
engaged in national defense research and production activities. See 44
U.S.C. Sec. 3502(1)(A)-(D).
---------------------------------------------------------------------------
H.R. 5023 would create what it terms ``scoping stage
consultations'' that would require an agency to consult ``[a]s early as
possible in the planning stage of an activity.'' The Act would create
standards for all phases of the ``scoping stage'' consultation,
including: the initial contact with consultation partners, efforts to
arrange consultation meetings, and even for the format of a
consultation meeting. The bill would go so far as to require that
adequate time be made for introductions at the consultation meeting.
The scoping stage consultations would be terminated on the
execution of a memorandum of agreement (MOA). The MOA would include the
terms and conditions agreed upon by an agency and Indian tribe through
the consultation process. The terms might often include measures to
resolve or mitigate any adverse impacts on an Indian tribe. If an MOA
is not executed, the agency would terminate the scoping stage
consultation only after providing all consultation partners with
written notification and an explanation for its decision. The head of
the agency would be required to sign the notification. The process
would then move to ``decision stage procedures,'' whereby an agency
would be required to submit a ``Proposal Document'' to all consultation
partners and follow up with phone calls to confirm receipt of the
Proposal Document. The Proposal Document would be published in the
Federal Register for a public comment period of 90 days. One or more
extension periods of 30 days would apparently be required, upon request
of a tribal member.
After the comment period ends, the agency would be required to
prepare a preliminary decision letter, signed by the head of the
agency, that describes the decision - the details of the decisions
itself, the agency's rationale in making the decision, any changes made
to the proposal in response to comments, and any points on which the
decision conflicts with the requests of any consultation partners. The
preliminary decision letter would be mailed to all consultation
partners, and the agency would follow up with a phone call to confirm
receipt of the letter. After the agency submits the preliminary
decision letter to the consultation partners, the consultations
partners would have 60 days to comment. The agency would then be able
to issue its final decision.
Moreover, presumably beginning during the scoping stage
consultations, the agency would be required to keep an official
consultation record that could be referred to in any litigation that
may arise. The record would include, but not be limited to,
correspondence, telephone logs, and emails. The agency would also be
required to keep notes recording the dates, content, and identities of
participants in consultation meetings, site visits, and phone calls.
Lastly, Section 501 of H.R. 5023 would allow for judicial review
when an Indian tribe alleges that the requirements of the Act have not
been met. Under this provision, an Indian tribe may seek a court order
restraining an agency from taking action in furtherance of an activity
until the requirements of the Act have been met. The provision makes
agencies liable for any damages resulting from activity conducted
without consultation.
Interior's Position
Interior cannot support H.R. 5023, as written, because it is vague
and overbroad. The Act would apply to every ``activity'' that ``may
have substantial direct impacts'' on an Indian tribe. It is unclear
whether ``activity'' would include, for example, the President's annual
budget, the positions the Administration takes on legislative proposals
(such as the position I am describing in this statement), and other
day-to-day operations of the Federal Government. The ambiguity is
particularly problematic because tribes could bring civil actions to
protest Federal agencies' interpretations of the requirements of the
Act.
The consultation process that the Act would set up is not optimal
for all situations. While the need for tribal consultation is
uncontroverted, the process for consultation is not ``one-size-fits-
all.'' Federal and tribal governments must have the freedom to design
an appropriate consultation process for each matter on which they
confer. The Act does not give Federal and tribal governments that
flexibility. For example, dissemination to tribes of a planning
document may not be the best way for Federal agencies to begin a
consultation process. Tribes often prefer to be consulted before
Federal agencies draft any planning document, and in some instances,
tribes wish to consult very quickly. In these situations, tribes would
most likely not want to wait for the completion of the scoping stage
consultations.
Similarly, a consultation meeting might not be the appropriate
second step in a consultation process. For government-to-government
consultations between a Federal agency and one tribe, telephone calls
may be more efficient. For government-to-government consultations
between a Federal agency and many tribes, smaller scoping meetings or
regional meetings may be more effective.
Indeed, the Act's requirement that Federal agencies negotiate the
logistics of the initial consultation meeting with ``stakeholder
representatives'' seems more appropriate for government-to-government
consultations with one tribe rather than for multi-tribal
consultations. To begin with, the Act does not define who the
appropriate ``stakeholder representatives'' are for a multi-tribal
consultation. This ambiguity is likely to give rise to litigation on
the part of tribes that consider they were not included in
decisionmaking about the logistics of the first consultation meeting.
The Act's requirement that scoping-stage consultation terminate in
a MOA is similarly cumbersome, particularly when multiple tribal
governments are involved. Multi-tribal consultation can be expected to
terminate often without a MOA acceptable to all tribes. The Act does
not make adequate allowance for failure of the MOA process in multi-
tribal consultations.
The Act's reference to nongovernmental consultation partners in
section 203 is problematic. The Act does not explain the reasons for
the presence of nongovernmental consultation partners at government-to-
government consultations between the United States and tribes. Nor does
the Act define the roles and rights of nongovernmental consultation
partners.
Some logistical requirements of the Act do not appear to offer
benefits proportionate to their costs. For example, section 204 of the
Act would require Federal agencies to mail and e-mail, if possible, the
Proposal Document and the Preliminary Decision to the tribal leader and
all members of any elected tribal governing body of each consultation
partner, and then to follow up with phone calls to confirm receipt of
the Proposal Document and the Preliminary Decision. Communication with
the head of a government normally suffices for government-to-government
consultation.
Another logistical requirement whose cost would likely exceed its
benefit is the requirement in section 204 (b) that a 30-day extension
of the public comment period on a Proposal Document shall be granted
upon request by any member of an Indian tribe that is a consultation
partner. It is uncommon for individual tribal members to play such a
substantial role in government-to-government consultation. Particularly
ambiguous are the provisions on judicial review in section 501 of the
Act. Federal agencies must be accountable for their actions, but the
judicial review provisions are likely to hamper effective consultation
rather than help to achieve it. The language of section 501 would not
require a tribe to be directly affected in order to file suit alleging
that the Act's requirements have not been met. We can only assume that
courts would read the usual standing requirements into section 501.
Section 501 provides that courts could restrain Federal agencies from
``further action in furtherance of the activity,'' without specifying
what activity is meant. Courts could be left to decide whether the
``activity'' is further consultation, or the particular element of the
consultation process in which the agency was engaged, or the activity
that the agency proposes to carry out.
H.R. 5023 also does not make exception for certain circumstances.
For example, the Act does not account for situations in which a Federal
``activity'' must be undertaken immediately due to exigent
circumstances. The Act also does not make an exception for individual
enforcement decisions that must be made under Federal law by the
applicable Federal agency, such as enforcement actions by regulatory
agencies.
The goals of H.R. 5023 are laudable. Many of the goals are being
met by this Administration's current initiative to insure that the
consultation policies of each Federal agency comply with E.O. 13175.
This Administration's initiative will result in each Federal agency
having an accountable consultation policy that meets the requirements
of E.O. 13175. The agencies' policies will have the necessary
flexibility to accommodate the various circumstances in which the
United States and tribes must carry out government-to-government
consultation. Thus, the Executive Branch is committed to accomplishing
the primary goal of H.R. 5023, even though it cannot support H.R. 5023
itself.
______
Statement of Paul Tsosie, Chief of Staff, Office of the Assistant
Secretary--Indian Affairs, U.S. Department of the Interior, on H.R.
5468
Thank you for the invitation to testify on H.R. 5468, the
Bridgeport Indian Colony Land Trust, Health, and Economic Development
Act. The legislation directs that approximately 39 acres of land
currently administered by the Bureau of Land Management (BLM) be taken
into trust for the Bridgeport Paiute Indian Colony of California
(Tribe). The Department supports this legislation, and would like to
work with the sponsor and Committee to make minor technical
modifications to ensure that the property to be transferred is
accurately described.
Background
The Bridgeport Indian Colony is a federally-recognized tribe
located near the town of Bridgeport, in Mono County, California. The
Tribe's 40-acre reservation is located approximately a quarter mile
from Highway 182, and currently has no highway frontage or pass-through
traffic.
The Tribe seeks to have two parcels of BLM managed land transferred
to their reservation and held in trust by the United States. The 31.86-
acre Bridgeport Parcel, which was identified by the BLM for disposal in
a 2004 amendment to the Bishop Resource Management Plan, lies between
the Tribe's current reservation and Highway 182. The Bridgeport Parcel
is contiguous to the existing Colony. Trust status for this parcel
would enable the Tribe to construct housing and a community activity
center, and facilitate economic development. The 7.5-acre Bridgeport
Camp Antelope Parcel, near the small town of Walker, is currently under
lease to the Toiyabe Indian Health Project for operation of a community
health clinic under the Recreation and Public Purposes Act. The Toiyabe
Indian Health Project is operated by a consortium of tribes. The clinic
is currently closed, but the Bridgeport Indian Tribe has expressed a
desire to reopen this facility, which has suffered major interior water
damage and has been vacant since December, 2005. We suggest that the
bill state that any structures on the parcel would remain the property
of the tribe and would not become part of the trust property.
H.R. 5468
Under H.R. 5468, the United States would hold in trust for the
Tribe both the Bridgeport and Bridgeport Camp Antelope Parcels, subject
to valid existing rights. The Tribe has sought a means to acquire the
Bridgeport parcel for many years, and the BLM has been working
cooperatively to help them achieve this goal under existing
authorities. The Bridgeport Camp Antelope Parcel has been under
Recreation and Public Purposes Act lease since 1987.
Conclusion
Thank you for the opportunity to present a statement for the record
to express the Department's support for H.R. 5468. We would be happy to
answer any questions the Committee may have.
______
The Chairman. Thank you. I have one question. The previous
Administration testified in opposition to my tribal
consultation legislation last Congress, and today, you are
testifying on behalf of the current Administration in
opposition to Mr. Grijalva's tribal consultation legislation,
yet all, all of the tribes last Congress and today support this
type of legislation. I am wondering if you could just tell me
where the disconnect is and what can be done to resolve this
issue.
Mr. Tsosie. Well, all of the tribes, and also the
Department of the Interior, strongly support tribal
consultation. In the goals of the bill of the RESPECT Act, it
focuses on enhancing the government-to-government relationship,
the respect for sovereignty, the need for tribal input on
actions that affect the Indian tribes, and tribes all across
the Nation are all in support of that, and so are we. Just the
specific particulars in this bill, for example, this bill has a
one size fits all approach, there are some instances where such
a strict procedure is not required, not needed, but we still
have a duty to consult with the Indian tribes. One specific
example I want to throw out there is recently we just chose a
director of the BIE, the Bureau of Indian Education.
We understood that we have a strong commitment to consult
with the Indian tribes; however, this was an internal
Department of the Interior hiring process, a Federal Government
hiring process. If we would have had to follow the strict
requirements under the RESPECT Act, we couldn't have because of
the strict Federal hiring guidelines. So what we did is we had
to be creative. We videotaped interviews with the consent of
all the applicants and we sent those out to Indian tribes that
had BIE schools and also Indian tribal organizations and got
their input. We solicited input from all over the country and
at the end of the Federal hiring process, we took that into
consideration. Instances like that are not covered under the
RESPECT Act. So just as an emphasis there that we do have a
strong commitment for tribal consultation, and this RESPECT Act
was just too burdensome.
The Chairman. So am I interpreting you right that where
there is a need to hire somebody that needs to meet certain
qualifications within your agency, that you feel the need to do
that without tribal consultation?
Mr. Tsosie. No. What I am saying is that we understand that
we do have a duty to consult, and sometimes we have to be
creative, and putting everything into one box under the RESPECT
Act would not allow for us to be creative and get the input of
tribes where we cannot specifically follow those procedures
because there were, you know, hiring deadlines and issues like
that that we also had to deal with because each arm of the
Federal Government is different. We understand that. That is
why each arm of the Federal Government on consultation is
developing their own action plan and carrying out their own
action plan. The Department of the Interior, we have submitted
ours and we are in the process of carrying that out, but there
are sometimes when each entity needs that flexibility and the
RESPECT Act just doesn't allow for it.
The Chairman. Mr. Hastings?
Mr. Hastings. Thank you, Mr. Chairman. To follow up on the
Chairman's line of questioning, you mentioned a personnel
problem, but on your testimony, at the last sentence of the
second paragraph regarding H.R. 5023 you say, ``Indeed, the law
has potential to bring much of the Federal Government to a
standstill.'' Now, personnel issues won't bring the Federal
Government to a standstill, but give me an example of what you
mean by that statement.
Mr. Tsosie. That statement, I am going to use the same
example. There are specific deadlines, and conversations, and
telephone calls and emails that have to be met under the
RESPECT Act. Obviously, the hiring of a BIE director would be
something that affects the interests of Indian tribes. Any
perceived violation based upon an allegation, a tribe could go
in under the RESPECT Act and get a restraining order basically
stopping the Federal hiring process from going forward.
Mr. Hastings. Well, let me expand upon that because, I
mean, hiring one, you know, personnel within the bureaucracy
doesn't bring the government to a halt. On page 4 you say that
it is unclear whether the activity would include, for example,
the President's annual budget. Would you elaborate on that?
Mr. Tsosie. The definitions under the RESPECT Act are
either nonexistent or very broad. Under my quote, I am going to
turn to my quote now, H.R. 5023 prescribes detailed standards
that an agency must follow before undertaking any activity that
may have a substantial direct impact on the lands or interests
of one or more Indian tribes. Now, the definitions under the
RESPECT Act may have a substantial direct impact and interest
of an Indian tribe is not defined, so under those two
definitions, those are open for interpretation.
Mr. Hastings. So you are suggesting then in your testimony
that somebody could interpret this to affect the President's
annual budget proposal, is that correct?
Mr. Tsosie. Exactly.
Mr. Hastings. And that would not be confined simply to
Interior, but to all agencies, is that correct?
Mr. Tsosie. Exactly.
Mr. Hastings. OK. Good. Well, that is a big hurdle. Good.
Well, Mr. Chairman--thank you for your testimony.
Mr. Grijalva. I am glad other tribal members had input into
that very important position and a great candidate and a fine
person was chosen. That kind of creativity and communication
and inclusiveness is, nothing in this Act would prevent you
from continuing to do that. You know, Executive Order 13175 and
its predecessor, which includes Executive Order 13084, have
been in effect now under four Administrations, and yet, you
still hear the same issues that the Chairman brought up about
the number one complaint coming from Indian Country has to be
about the consultation process with Federal agency. This bill
does nothing but codify Executive Order 13175 with the addition
of explicit procedure for consultation so we don't leave, as
you mentioned, flexibility, a flexibility to do it right and a
flexibility not to do it all, to individual agencies.
So my question is why should we trust and why should Indian
Country trust that this new Administration of which you are a
part of that is working hard on the action plans for each
agency, and that process is going to continue, what guarantee
do we have that in future Administrations that that same kind
of attitude is going to be present without a codified law that
requires future Administrations to do that? Maybe in the future
that with each Administration comes a different attitude. Some
are proactive, some are not. The complaints go back and forth,
but there has been a consistent complaint about the lack of
consultation and the lack of procedure and consultation.
All we are trying to do is codify it. You know, many of the
points that you brought up of bringing the President's budget
to a halt, there are some parts that should be halted, none of
this in this law even attempts to deal with that. With all due
respect, I think your opposition is based on exaggeration of
this legislation. We will be glad to respond, and specifically
to the points that you made because we think you are wrong,
some of the exaggerations are not true about what is in this
legislation, and we will proceed from here. Taking a snapshot
of what you are doing right now on tribal consultation as a
voluntary policy gesture is a good thing.
We are saying let us codify that good will that you are
implementing into law so that future Administrations, future
tribal governments, will have the security of knowing that
there is a procedure that needs to be followed by Federal
agencies. The fact of the matter is that this Congress, and all
Congress has the jurisdictional responsibility and the
authority to enact these kinds of procedures, as uncomfortable
as it might make an agency. Our constituency is much broader
than the agency at this point. The trust issue, it is not
really a question, it is more of a comment, and I really don't
expect a response. I yield back, Mr. Chairman.
Ms. Christensen. Thank you, Chairman Rahall. I want to
thank you and Ranking Member Hastings for holding this hearing.
For the record, just before I ask my questions, I want to raise
an issue that is really not before the Committee just for a
second just for the record. I had an opportunity to meet with
the Congress of American Indians a few weeks ago and their
major concern was the Carcieri decision and the negative impact
it could have on economic development contracts, loans and
provision of services, as well as long years of litigation. As
you know, that decision reverses years of precedent under the
IRA, and I hope that we can address it before the end of this
Congress, as they would like us to do, either through one or a
combination of the two bills that are in this Committee.
The Chairman. I hope we can, too.
Ms. Christensen. Thank you. I wanted to just say that for
the record because I promised them I would, you know, work with
you to try to get that done. Let me ask, this bill, H.R. 5023,
wouldn't even be before us if the Executive Order was being
followed consistently. Some of the Departments have, to my
understanding, not even responded. What is your office doing to
bring them into--I think Homeland Security might be one of
them. What is the office doing to bring them into accordance
with the directive?
Mr. Tsosie. Thank you for the question. First of all, I
want to say that at the White House Conference last year in
November, the President of the United States indicated that
under his watch that Indian tribes would not be forgotten, and,
as a result, that is where the Executive Memorandum came, out
of that conference.
Ms. Christensen. I was there, and I remember that.
Mr. Tsosie. What is happening right now is that we are
weaving this consultation process into all parts of the Federal
Government. Each agency has the lead person in charge making
sure that everything happens. Now, as far as which Departments
have responded and which ones haven't, I don't know exactly
which ones have or have not. I would like to submit that for
the record at a later time. Now, in order to bring them in we
are sharing a lot of information and we are encouraging them.
We have invited a number of other entities out with us on the
road when we went and consulted across the nation. Now, there
may or may not be other entities that have not responded, and
you have my commitment that we will follow up with those other
entities and at least encourage them to respond.
Ms. Christensen. Well, thank you, and I look forward to
hearing from you in writing. I just think that having that
memorandum not complied with, you know, now it is almost a year
later. The office should have been more on top of those
agencies by now. I am at a loss, like the Chairman of the
Subcommittee, and parks and the sponsor of this legislation.
After even eight years of an Obama Administration, why
shouldn't the tribes have some sense of security that this
executive will be followed regardless of what Administration is
in office even if, you know, we have confidence in this one.
Why not give the tribes the security that this Executive Order
would be followed regardless of what Administration is in
office?
Mr. Tsosie. We also realize that, you know, different
priorities change with different Administrations. That is why
we are involving tribes as much as possible, getting their
input as much as possible, because other Administrations will
have a hard time arguing against Indian tribes to change this
process. Now, with the particulars on this RESPECT Act, we
would be happy to give more specific input on how we think that
this piece of legislation can be modified in the future here.
We would be happy to work with the Committee. We would have to
vet it through, you know, our own internal process to make sure
that we could support this, but on how this RESPECT Act is
written, we cannot support it just because of how stringent it
is and how it does not allow for different things to happen.
The good part about it is we are all on the same page. We want
to further the same goals, we want to be on the same team and
work together.
Ms. Christensen. Well, thank you, Mr. Chairman. I will
yield back the balance of my time and look forward to working
with the sponsor. I think he has indicated that he is willing
to have discussions with the Administration on how the bill can
move forward.
The Chairman. Any further questions? If not, we thank you
for your testimony, Mr. Tsosie, and we look forward to
continuing to work with you on this.
Mr. Tsosie. Thank you.
The Chairman. Our third panel is composed of the following
individuals: The Honorable Ned Norris, the Chairman, Tohono
O'odham Nation, from Sells, Arizona; The Honorable McCoy
Oatman, the Chairman of the Nez Perce Tribe of Lapwai, Idaho;
Mr. Robert A. Williams, Professor of Law and American Indian
Studies, James E. Rogers College of Law, University of Arizona,
Tucson. Gentlemen, we welcome you to the Committee on Natural
Resources today. We have your prepared testimony. It will be
made part of the record as if actually read. You may proceed as
you desire, and in the order I announced. Chairman Norris?
STATEMENT OF DR. NED NORRIS, CHAIRMAN,
TOHONO O'ODHAM NATION, SELLS, ARIZONA, ON H.R. 5023
Dr. Norris. Thank you. Thank you, Mr. Chairman Rahall and
Members of the Committee. Dr. Christensen, thank you for your
comments regarding the National Congress of American Indians.
As a member in good standing, I was there at the NCAI, and I
appreciate your support and your comments that you made in
reference to Carcieri. We do hope that there is some resolution
in the near future on that issue. Thank you very much. I
appreciate the invitation to testify today regarding the tribal
consultation and the RESPECT Act. I am the Chairman of the
Tohono O'Odham Nation coming from the State of Arizona. Our
tribe is in the southwestern part of the State of Arizona. We
have about 2.8 million square acres of Indian reservation with
about nine villages that continue to exist south of the
international border of Mexico.
This legislation has a direct impact on the O'odham Nation
and other Indian tribes across the country as tribes regularly
request timely, meaningful government-to-government
consultation. The Act in many ways reflects the purposes and
mandates of tribal consultation as established on November 6,
2000 by President Clinton's Executive Order 13175 and recently
reaffirmed by President Obama's Memorandum of November 5, 2009.
The RESPECT Act recognizes the Federal Government's
responsibility to consult with tribes when Federal activities
impact tribal lands and interests. The Act further establishes
a flexible and accountable process for timely and meaningful
consultation.
Of particular importance to the O'Odham Nation is the
provision of the Act that provides for consultation to begin
early in the planning and development of the process. The
nation has experienced more than one instance where a Federal
agency has drafted proposed regulation directly affecting
nation's interests, yet never consulted with the O'odham Nation
during the process. Mr. Chairman, I would like to highlight a
couple of situations most recently that have occurred. With all
due respect to Mr. Tsosie's testimony, recently the Intertribal
Council of the State of Arizona, upon learning that the
regional director within the Bureau of Indian Affairs had
retired about two months ago, noticed the Bureau of Indian
Affairs that the Intertribal Council of Arizona wanted to be
involved in the process of who was going to take that position
after the retirement of that individual.
We believed that we had the interest of the Bureau to go
ahead and allow the process for consultation and have the
Intertribal Council involved in that process. It was
disheartening to learn not many days ago, about two or three
weeks ago, that that position had been filled without any
consultation, without any involvement from Intertribal Council,
yet we had requested that. So I think that is one example of
how this bill I think would ensure to us, as the tribal leaders
and tribes in Arizona and the United States, that we would be
involved in the process. Second, another example I would like
to raise in reference to the U.S. Border Patrol and the impacts
that the Border Patrol has on the O'odham Nation.
We were never consulted when the Border Patrol made the
decision to increase their presence on the lands of the O'odham
Nation. Although the O'odham Nation is concerned and will, and
does support the need to secure the United States of America,
the presence of the Border Patrol has had significant impact on
not only the membership of the O'odham Nation, but also the
land, our cultural issues and our sacred sites. Those are
things that we initially were not consulted with. They took a
time where we had to take a position with the Border Patrol and
say we need to be at the table with you, we need to be at the
table when you make the decisions that are going to have some
level of impact on our membership, on our land, on our sacred
sites and our culture. So I think as a result we have been able
to develop a good working relationship in that regard, but I
think, again, this Act would address those issues that are
concerning to us.
So, indeed, the agency scheduled the meetings after the
regulations. I mean, that is simply pretty much the typical way
that things are done. Whenever decisions are made under the
guise of consultation, tribes will be asked to come in and meet
with the Federal agencies, many times to learn that those
decisions have already been made. The consultation is a
process. It is a back check meeting requirement. That is
unfortunate because tribes need to be involved in the process,
tribes need to be involved in decisions that are going to have
some level of impact. Whether it is a positive or negative
impact, tribes need to be at the table and consulted with, and
this Act assists tribes and assures tribes, guarantees tribes
that that process is going to be adhered to. So, Mr. Chairman
and Members of the Committee, thank you for your time. Thank
you for giving the Tohono O'odham Nation this opportunity to
share these thoughts with you. Thank you.
Mr. Grijalva. [Mr. Grijalva presiding.] Thank you, Chairman
Norris. Appreciate very much your leadership and your tribe's
critique of the legislation that you got ahead of time. I
appreciate it very much, and it was very helpful. Let me now
turn to Chairman Oatman. Thank you very much, sir. Welcome. We
look forward to your comments.
[The prepared statement of Dr. Norris follows:]
Statement of Dr. Ned Norris, Jr., Chairman,
Tohono O'odham Nation, on H.R. 5023
Good morning Chairman Rahall and Members of the Committee. I
appreciate the invitation to testify today regarding tribal
consultation and the RESPECT Act. My name is Ned Norris, Jr., and I am
the Chairman of the Tohono O'odham Nation. The Tohono O'odham Nation is
a federally recognized tribe located in southwestern Arizona.
This legislation has a direct impact on the Nation and other Indian
tribes across the country as tribes regularly request timely and
meaningful government-to-government consultation. The Act in many ways
reflects the purposes and mandates for tribal consultation as
established on November 6, 2000 by President Clinton's Executive Order
13175, and recently reaffirmed by President Obama's Memorandum of
November 5, 2009. The RESPECT Act recognizes the federal government's
responsibility to consult with tribes when federal activities impact
tribal lands and interests, and the Act further establishes a flexible
and accountable process for timely and meaningful consultation.
Of particular importance to the Nation is the provision of the Act
that provides for consultation to begin early in the planning and
development process. The Nation has experienced more than one instance
where a federal agency has drafted proposed regulations directly
affecting the Nation's interests, yet never consulted with the Nation
during the process. Instead, the agencies scheduled meetings with the
Nation after the regulations were published. Tribal consultation in
these instances occurred as an afterthought, rather than as an integral
part of the process and severely limited the Nation's ability to have
meaningful input. The RESPECT Act addresses this issue by requiring
that consultation be completed early in the planning and decision
process.
The Act also requires agencies to draft a Planning Document early
in their planning process. The agency is required to send its Planning
Document to tribal government leaders. Notice to tribal leaders is a
fundamental element of tribal consultation. Recently, the Nation
experienced one agency's concept of government-to-government
consultation, which consisted of a general notice to the public of a
planned activity and the hosting of public hearings. The Act's
requirement for actual notice to tribal leaders will alleviate this
problem.
The agency's Planning Document that will be provided to tribal
leaders describes the geographic areas that might be affected by the
activity and any anticipated tribal impacts. The Planning Document is
critical because it will help the Nation to determine whether
consultation is desired and, if so, to what extent and in what format.
As a practical matter, tribes are generally the primary source of
knowledge and information concerning how a proposed federal action may
affect tribal rights. In fact, tribes are sometimes the only source of
such information in circumstances involving confidential sacred sites
or details of cultural or religious practices. The Act provides a
mechanism for protecting sensitive tribal information which will
facilitate more open communication about sensitive matters. With open
communication, the anticipated result is that the agency is better
aware of potential impacts on tribal rights, resources and interests,
and therefore is better equipped to avoid or seek to mitigate those
impacts. Communication, awareness, and understanding are fundamental
elements of consultation and collaboration. The earlier they occur in
the process, the more likely the parties will be able to come to an
Agreement as anticipated by the Act.
Unique to the RESPECT Act is the provision for Judicial Review. As
the Committee is aware, both the Executive Order and Presidential
Memorandum on Tribal Consultation make clear that they do not create
any enforceable substantive or procedural rights. However, express
authorization to bring an action to restrain an agency from further
damaging a jaguar habitat, a burial site, an archaeological site or
other cultural resources until the agency complies with its
consultation obligations is a big step in the right direction and
demonstrates, with more than just words, the government's commitment to
timely and meaningful tribal consultation. Judicial review makes
agencies accountable for their consultation actions, or lack thereof.
In government matters, in particular, accountability is a good thing.
In conclusion, Chairman Rahall and Members of the Committee, for
the reasons I have stated here today, the Nation supports H.R. 5023,
the RESPECT Act. Thank you.
______
STATEMENT OF HON. McCOY OATMAN, CHAIRMAN,
NEZ PERCE TRIBE, LAPWAI, IDAHO, ON H.R. 5023
Mr. Oatman. My name is McCoy Oatman. I am the Chairman of
the Nez Perce Tribal Executive Committee. I would like to first
thank Chairman Rahall for the opportunity to testify on this
important issue of consultation. I would also like to thank the
Representatives from Oregon and Washington, Idaho and Montana
for their work on the Committee. Although the Nez Perce
Reservation is located in Idaho, the Nez Perce Tribe's ceded
territory includes lands in the present States of Oregon,
Washington, Idaho and Montana. Primary points of our testimony
today are the government-to-government consultation between the
United States Government and the tribal governments and is an
important component of the trust relationship between the
tribes and the United States.
My tribe, particularly, holds this in high regard because
we are a treaty tribe. The first treaty that we signed with the
United States was in 1855 which established that trust
relationship, so we believe it is sound public policy to
provide a codified framework setting forth the parameters for
consultation. Despite the frequent affirmations of the need for
proper tribal consultation that have been expressed and
affirmed through Executive Orders and Memorandums, meaningful
and effective consultation has been too frequently ignored or
inconsistently utilized by Federal agencies. Nez Perce Tribe
strongly endorses the efforts of Congress to address this issue
directly through the proposed legislation. We believe it is a
good public policy.
Congressional findings of the bill state that there has
been a long historical and legal relationship enjoyed by the
Federal Government and the tribes. As President Lyndon B.
Johnson said in 1968: Indians must have a voice in making the
plans, and decisions and programs important to their daily
lives so that the relationship between tribes and the Federal
Government would be one of a full partnership and not
dependency. Today, tribal governments are still looking to
meaningful government-to-government consultation as the way to
work with the Federal Government as partners on the issues that
affect tribal interests. Consistency and implementation of
consultation by the Federal agencies. Different Presidential
Administrations since have made general commitments to the
government-to-government relationship, but there has been
inconsistency in carrying out that general commitment.
There is a great need for some type of structure for
consultation as there are a myriad of examples that illustrate
this trust relationship is being ignored. A few examples from
my tribe, the Nez Perce Tribe, is recently one of the national
forests took action to permit a certain activity on one of our
trails, a Nez Perce national trail, and there was no
consultation with the tribe, and so the tribe had to express
their concerns and the project, we had to have a meeting with
them. If formal consultation would have occurred, the project
probably would have moved forward. So we had expressed our
concerns and expressed that, you know, we had not been
consulted, and so the forest and the supervisor met and we were
able to get them to rescind their decision, and so now they
will be resubmitting that project and following the proper
process.
Another example involved action by the Bureau of Land
Management to permit domestic sheep grazing and occupied
bighorn sheep habitat within the tribe's treaty territory and
without any formal consultation with the tribe. The decision
posed a great risk to the bighorn sheep in the area. Bighorn
sheep are a culturally important species to the tribe that are
in danger of extirpation in the area. In this instance, the
tribe was forced to participate in the litigation contesting
the decision. Based on scientific information provided by the
tribe, the Court ultimately ordered the Bureau of Land
Management to enjoin grazing on that allotment. Another example
is the tribe also confronted significant hurdles over the years
with respect to the Federal Energy Regulatory Commission's
interpretation and implementation of its own tribal
consultation policies.
As co-manager of treaty reserve natural resources, the
tribe expects predecisional access, deferred proposals that
stand to affect tribal trust resources. However, Nez Perce
tribal government access has been limited, and, in some cases,
ignored on several important projects within the tribe's treaty
territory. These are but a few examples of the problems that
exist between the tribe and that the tribes encounter in
working with the United States. Some agencies are better at
implementing consultation policies than others. I particular,
the Indian Health Service and Dr. Roubideaux has worked hard to
include tribes in decisionmaking, such as the work on
implementation of the recently passed health care reform.
The tribe has also had good experiences working with the
Department of Energy and the work in the DOE have for a nuclear
site. Unfortunately, for some agencies their consultation
policy will sit on a shelf and gather dust while other agency
heads will seriously and actively solicit and consider tribal
comments on Federal actions that impact them. The Federal
bureaucracy is inconsistent and is too dependent on the
philosophy or personnel agency administrator with regard to
implementation of consultation procedures and their importance.
This legislation will help eliminate that inconsistent
implementation by requiring each agency to follow the same
procedures and process in relation to agency actions that
affect Indian tribes.
In examining this legislation. Nez Perce Tribe applauds the
efforts of Congressman Grijalva to put in some statute concrete
concepts and consultation that have been sought by the tribes
for a long time. The statute makes the Federal agencies
accountable for their actions, providing enforcement provisions
in Section 501. The legislation also mandates tribal
involvement from the beginning of any process or action. The
procedural requirements for notification of consultation, as
well as notice to proceed forward if no response is given
outlined in Section 203, are important. The Nez Perce Tribe
also encourages the Committee to consider expanding the scope
of consultation provided in Section 201[a].
While Federal actions that occur within Federal lands that
border Indian Country mandate consultation, recognition that
Federal lands that may not border Indian Country but are lands
that are reserved through treaties with treaty reserve rights
are exercised should also invoke mandatory consultation if
Federal action occurs. The protection of sensitive tribal
information provided in Section 207 is greatly appreciated. In
conclusion, for the Nez Perce Tribe, solid, trusting
relationships begin with communication that is meaningful and
sincere or from the heart. As one of our great leaders, Chief
Joseph, said: Good words do not last long unless they amount to
something.
He also stated that it makes my heart sick when I remember
all the good words and all the broken promises. Passing this
legislation will put to paper that heart to heart claim and to
work together that our tribe desires and help ensure the
promises that were made through the treaties are remembered and
kept. There are too many examples of this not happening. This
bill, the RESPECT Act, will simply put in writing what tribes
have been promised for years: A seat at the table, an
opportunity to comment and a chance to help determine our own
destinies. Thank you.
Mr. Grijalva. Thank you, Mr. Chairman. Mr. Robert Williams.
Welcome, sir. Look forward to your testimony.
[The prepared statement of Mr. Oatman follows:]
Statement of McCoy Oatman, Chairman,
Nez Perce Tribal Executive Committee, on H.R. 5023
Ta'c M'eewi, Good Morning. My name is McCoy Oatman and I am the
Chairman of the Nez Perce Tribal Executive Committee. I would like to
thank Chairman Rahall for the opportunity to be here today. Since the
Nez Perce Tribe is located in the Northwest, I would also like to thank
some of the representatives from the Northwest for their work on this
committee: Rep. Peter DeFazio from Oregon and Representatives Jay
Inslee and Kathy McMorris Rodgers from Washington. Although the Nez
Perce Reservation is located within the state of Idaho, the Nez Perce
Tribe's aboriginal territory included lands in the present states of
Oregon, Washington, Idaho and Montana and the Nez Perce Treaty of 1855
reserved the right of the Nez Perce Tribe to exercise treaty reserved
rights in those areas.
I am honored to be asked to provide testimony today on the
important topic of government-to-government consultation between tribal
governments and the United States. Government to government
consultation is an important component of the trust relationship that
exists between tribal governments and the United States and it is sound
public policy to provide a codified framework setting forth the
parameters for consultation. Despite the frequent affirmations of the
need for proper tribal consultation that have been expressed and
affirmed through executive orders and memorandums, meaningful and
effective consultation has been too frequently ignored or
inconsistently utilized by federal agencies. This inconsistent
application and implementation of consultation policies is extremely
frustrating for tribal governments. Many of the components of the
proposed legislation appear to address some of the primary problems
tribal governments encounter during interactions with federal agencies.
The Nez Perce Tribe strongly endorses the efforts of Congress to
address this issue directly through the proposed legislation.
Effective and meaningful consultation with the federal government
is something that Indian Tribes have been seeking since the first
treaties were signed. As is illustrated in the Congressional findings
of the bill, there has long been an historical and legal relationship
enjoyed by the federal government and tribes. However, this essential
component of the foundation of the relationship between the United
States and tribal government has been inconsistently followed through
the years. It was President Lyndon B. Johnson, who said in 1968,
``Indians must have a voice in making the plans and decisions in
programs important to their daily lives'', so that the relationship
between tribes and the federal government would be one of ``full
partnership--not dependency.'' Today, tribal governments are still
looking to meaningful government-to-government consultation as a way to
work with the federal government as partners on issues that affect
tribal interests.
Different presidential administrations since that time have made
general commitments to this government-to-government relationship, but
there has been inconsistency in carrying out that general commitment.
There is a great need for some type of structure for consultation as
there are a myriad of examples that illustrate this trust relationship
being ignored. For example, the most recent past President recognized
and reaffirmed the unique tribal-federal relationship and promised to
work with tribes to strengthen the federal trust relationship. Yet,
very soon following this commitment, the Department of Interior
released a decision to reorganize the Bureau of Indian Affairs without
prior consultation with tribes. An entirely new agency was created from
this process.
On a more personal level, the Nez Perce Tribe has many examples of
an agency's failure to properly consult and the resulting consequences
to the Tribe. Recently, one forest took action to permit activity near
an important tribal historic trail of the Tribe without prior
consultation with the Tribe regarding the action. Fortunately, this
failure to consult did not result in immediate harm to the Tribe and
the forest supervisor took swift action to rescind the decision prior
to its implementation once the Tribe made its concerns known.
Discussions are now proceeding to initiate proper consultation on the
project. However, this will result in delays to the project which could
have otherwise been avoided if consultation had occurred in a timely
manner.
Another example involved action by the Bureau of Land Management to
permit domestic sheep grazing in occupied bighorn sheep habitat within
the Tribe's treaty territory without any formal consultation with the
Tribe. This decision posed a great risk to bighorn sheep in the area.
Bighorn sheep are a culturally important species to the Tribe that are
in danger of extirpation in the area. In this instance, the Tribe was
forced to participate in litigation contesting the decision. Based on
scientific information provided by the Tribe, the court ultimately
ordered the Bureau of Land Management to enjoin grazing on the
allotment.
The Tribe has also confronted significant hurdles over the years
with respect to the Federal Energy Regulatory Commission's (FERC)
interpretation and implementation of its own tribal consultation
policies. As a co-manager of treaty reserved natural resources, the
Tribe expects pre-decisional access to FERC proposals that stand to
affect tribal trust resources. However, Nez Perce governmental access
has been limited, and in some cases, ignored on several important
projects within the Tribe's treaty territory. These are but a few
examples of the problems tribes encounter working with the United
States.
In the past months, the Nez Perce Tribe was pleased to be able to
provide written comments on several agency consultation policies that
were being revised and revisited pursuant to the Executive Order issued
by President Obama on November 5, 2010. The Nez Perce Tribal Executive
Committee submitted written comments to: The Departments of Interior,
Education, Commerce, Treasury, Defense, Transportation, Energy, Labor,
Justice, and many others. However, we all know that some agencies are
much better at implementing such policies than others. The Indian
Health Service under Dr. Roubedieux has worked hard to include tribes
in decision making such as the work on the implementation of the
recently passed health care reform. The Tribe has also had good
experiences with the Department of Energy in our work with them at the
DOE Hanford nuclear site. Unfortunately, for some agencies, their
consultation policy will sit on the shelf and gather dust, while other
agency heads will seriously and actively solicit and consider tribal
comments on federal actions that impact them. The federal bureaucracy
is inconsistent and is too dependent on the philosophy or personality
of the agency administrator with regard to implementation of
consultation procedures and their importance. This legislation will
help eliminate that inconsistent implementation by requiring each
agency to follow the same procedures and processes in relation to
agency actions that effect Indian tribes.
I am certain that some of the testimony you will hear today will
touch on questions, such as: What does ``consultation'' mean? What does
``cooperation'' mean? What does the phrase ``effective and meaningful''
mean? What is the true definition of a ``trust relationship''? For the
Nez Perce Tribe, solid trusting relationships begin with communication
that is meaningful and sincere or from the heart. As Chief Joseph said
``good words do not last long unless they amount to something.'' He
said that ``it makes my heart sick when I remember all the good words
and all the broken promises.'' Passing this legislation would put to
paper that heart-to-heart commitment to work together that tribe's
desire and help ensure the promises that were made through the treaties
are remembered and kept. There are too many examples of this not
happening. This bill, the ``RESPECT Act'' will simply put in writing
what tribes have been promised for years: a seat at the table, an
opportunity to comment, and a chance to help determine our own destiny.
It only makes sense to consult with tribes when government action
will impact them. Yet, there are many examples from hundreds of years
that this did not happen. One example is Public Law 280. This is the
law that Congress enacted in 1953 to allow states to establish state
jurisdiction on Indian reservations within their states. Tribes were
not consulted, notified or asked to comment. It just happened. Another
example is the allotment act, which was intended to make Indians into
farmers by making them individual land owners, rather than having
community-owned lands. Congress was doing what they felt was best for
Indian people. In fact, Senator Henry Dawes, a sponsor of that bill,
seemed to be appalled at the concept of tribal land ownership. He said,
``there is no selfishness [among them], which is at the bottom of
civilization. In other words, he, a Senator from Massachusetts knew
what was best for the Indians and there was no need to consult with
them and determine their opinion.
As is illustrated above, there is strong historical and legal basis
to support the need to have mandatory consultation with Indian tribes
upon matters that will affect them or their treaty reserved rights. In
examining this legislation, the Nez Perce Tribe applauds the efforts of
Congressman Grijalva to put into statute concrete concepts on
consultation that have been sought by tribes for a long time. First,
the statute makes the federal agencies accountable for their actions by
providing enforcement provisions in Section 501. I am sure that many
tribes have encountered the following scenario: an action is taken
without consultation and then implemented. Currently, tribes have no
recourse to remedy such actions and are usually left with nothing more
than an apologetic ``It won't happen again'' excuse from the action
agency. The Nez Perce Tribe strongly supports the inclusion of the
judicial review concept in the proposed legislation as tribes must have
recourse to prevent actions taken without their knowledge or without
consultation.
The legislation also mandates tribal involvement from the beginning
of any process or action. This involvement at the early stages of
decision making is crucial for truly meaningful consultation. Many
times, tribal involvement begins at the latter stages of an agency's
decision making process. Unfortunately when this occurs, the direction
that an agency has chosen to pursue is usually not going to be altered
dramatically at the late stages of a process. Early involvement is a
key cog in any consultation procedure and it is good to see that
concept in this draft.
The procedural requirements for notification of consultation as
well as notice to proceed forward if no response is given outlined in
Section 203 are important. If consultation efforts are being made by
all the federal agencies, a tribal government can be inundated with
requests from agencies considering actions. Therefore the procedures in
Section 203 that ensure that agencies are not allowed to interpret
silence as non-interest in a process and that require the agency to
take affirmative action to ensure receipt of the action notice are very
important. Also, Tribes do need time and opportunity to process these
requests. A natural resource intensive tribe such as the Nez Perce can
receive hundreds of action notices from just the various national
forests that the Tribe works with alone.
The Nez Perce Tribe also encourages the committee to consider
expanding the scope of consultation provided for in Section 201 (a).
While federal actions that occur within federal lands that border
Indian Country mandate consultation, recognition that federal lands
that may not border Indian country but are lands where treaty reserved
rights are exercised should also invoke mandatory consultation if
federal action occurs. As was discussed above, many of the Nez Perce
Tribe's concerns extend far beyond the present day reservation
boundaries pursuant to the Treaty of 1855 and required consultation
should include those areas.
The protection of sensitive tribal information provided in Section
207 is greatly appreciated. The Tribe works hard to ensure that simply
working with a federal agency does not expose confidential information
of the tribe to public review. Many times issues that invoke
consultation involve important and culturally sensitive information
that should be protected. The Tribe appreciates the efforts to protect
this information in the legislation.
The Nez Perce Tribe is encouraged that Congress is considering
legislation to address this longstanding issue and believes it is good
public policy. The Tribe strongly supports passage of legislation that
will provide a permanent framework for agency interaction with tribal
governments. Thank you for the opportunity to comment on the importance
of this issue.
______
STATEMENT OF ROBERT A. WILLIAMS, JR., PROFESSOR OF LAW AND
AMERICAN INDIAN STUDIES, JAMES E. ROGERS COLLEGE OF LAW, THE
UNIVERSITY OF ARIZONA
Mr. Williams. Thank you, and thank you, Mr. Chairman, and
Members of the Committee. Thank you for this opportunity to
testify on H.R. 5023, the RESPECT Act. I think the most
important point to make about this legislation is that it would
restore Congress to its rightful specified role intended for it
by the framers of our Constitution as the branch of government
with the primary responsibility for managing Indian affairs.
Chief Justice John Marshall, a member of the founding
generation, emphasized this point in the leading Indian law
case of Worcester v. Georgia in 1832. Let me quote his words.
``That instrument, the Constitution, confers on Congress the
powers of war and peace, of making treaties and of regulating
commerce with foreign nations, among the several states and
with the Indian tribes.'' Marshall went on to say, ``These
powers comprehend all that is required for the regulation of
our intercourse with the Indians''.
Given this clear constitutional mandate as to which branch
of the Federal Government was to be primarily responsible for
regulating this country's government-to-government relations
with Indian tribes, the founders would not only approve of H.R.
5023, they would want to know what took Congress so long to
enact it. I had reduced my remarks from my prepared testimony,
but after hearing Mr. Tsosie testify on the legislation, I
think I can be of most benefit in my testimony by just running
through some of Interior's and the Administration's concerns
with this legislation. Respectfully, I had read the prior
Administration's objections to Congressman Rahall's earlier
version of this legislation, H.R. 5608, and, quite frankly, it
sounds like deja vu all over again.
I think really what we have here is just a lack of close
study of what this bill does. The three major objections are
that it would bring the Federal Government to a standstill,
that it lacks flexibility with its one size fits all approach,
and don't worry, we are doing it already. Let us just run
quickly through the bill in the short time I have. Section 201
says the agencies have to develop an accountable consultation
process for consultation with tribes for any activity that may
have substantial direct impacts on Indian lands and interests.
That is a one size fits all approach, but it is entirely
appropriate here as public policy and it needs to be set into
law. That is what the tribes are telling us.
Draft a planning document during the planning stage that
discusses the scope of the project and effects on tribes.
Again, that is a one size fits all approach, but it is entirely
appropriate. I have worked with tribes whereas Chairman Norris
has said the Federal Government agency has started to put its
plan together and then notifies the tribes. Once that happens,
the agency takes an attitude oftentimes that the tribe is an
obstacle. This approach, this very flexible approach, makes the
tribe a partner in the planning process. Again, that is what
tribes are asking for in their government-to-government
relationship. 203[c], contact those tribes and request
consultation. What could be more flexible than that? You can do
it by email or letter, but just do it.
Section 203[d], set up a meeting with a good faith effort.
If that would bring the government to a standstill, it is
because the agency is standing still on doing it. 203[e], agree
on a format, a facilitator, agenda and a schedule and a plan
for the next meeting. Again, incredibly flexible. Let us just
get talking about this at an early stage in the process.
203[a], 203[f], hopefully execute an MOA on a consultation
process. It doesn't demand and MOA, it sets up the procedure
that hopefully will lead to an MOA so we can get this project
online, get this regulation going and serve the public
interests. 203[g], if they can't agree, let the tribes know why
with a written explanation and proceed to the decision stage.
Again, that is a one size fits all approach, but it is
perfectly appropriate.
204[a] and 204[b], set out the decision stage process.
Again, this bill just simply requires tribes to be notified of
what was decided and why. That is not just good public policy,
it is good relations and encourages open dialogue, and perhaps
gives the agency a chance to correct a mistake. As for the
arguments that we are doing it already, the Administration's
efforts are commendable, as have been those Administrations
which have passed the previous Executive Orders, but those
Executive Orders could be ended on January 2012 or 2016 and the
tribes would have to start developing a consultation process
all over again. I urge you to read my testimony. It is amazing
the degree of respect that the founders gave to the right of
consultation belonging to Indian tribes. President Washington
would call tribes into his own, personal office and personally
respond point by point to their concerns. It is an example that
this Federal Government needs to adopt once again, and so I
urge passage of this legislation. Thank you.
[The prepared statement of Mr. Williams follows:]
Statement of Robert A. Williams, Jr., Professor of Law and Director of
the Indigenous Peoples Law and Policy Program, The University of
Arizona Rogers College of Law
Good Morning Chairman Rahall and members of the Committee, and
thank you for this opportunity to testify on H.R. 5023, ``Requirements,
Expectations, and Standard Procedures for Executive Consultation with
Tribes Act'' (``the RESPECT Act''). As Director of the Indigenous
Peoples Law and Policy (IPLP) Program at the University of Arizona, I
have worked with American Indian tribes and their leaders on issues of
tribal self-governance, community and economic development and
protection of tribal treaty rights for thirty years. As a law professor
and legal scholar, my teaching and research have focused on the legal
history of the Federal-tribal relationship, dating back to the Founding
era of the United States. In my testimony this morning, I hope to show
that the type of effective, agency-wide consultation process that would
be enacted into law by passage of H.R. 5023, the RESPECT Act, is
something that Indian tribes and their leaders have been seeking in
their government-to-government relationship with the United States for
a very long time.
This landmark legislation would establish for the first time in our
nation's history clear and precise procedures for effective
consultation and coordination by all Federal agencies regarding their
activities that impact tribal lands and interests. Just as important,
and as I hope to show by my testimony, passage of this legislation
would restore Congress to its rightful, specified role intended by the
Framers of our Constitution as the coordinate branch of our national
government assigned with the primary responsibility for managing Indian
affairs.
History shows that Indian tribes have been seeking effective
consultations with the Federal Government on matters of vital concern
to their lands and interests going back to the time of the
Revolutionary War. The Founding Fathers who negotiated and signed the
United States' very first Indian treaties recognized and acted upon the
principle that meaningful consultation with tribes was not only a wise
and prudent approach to Indian policy; it was a basic right belonging
to all self-governing peoples, and that included Indians. The Founders,
recall, had just fought their war for independence from Great Britain
over grievances mainly arising from King George III's failure to
adequately consult with them on issues of taxation, government
regulations, quartering of soldiers, and other rights they regarded as
basic and inalienable. The Founders' own experiences and views on
consensual government convinced them of the need for effective
consultations, on-going communications, frequent inter-actions and
close coordination with the Indian tribes of the United States. Let me
add that all of these consultative processes are expressly encouraged
and supported by the RESPECT Act.
The wisdom and example of the Founders are both highly instructive
in recognizing how the right to effective consultation is part of the
very fabric of the government-to-government relationship and the trust
responsibility growing out of that relationship that has existed
between Indian tribes and the United States since the first days of the
Republic. The Founders' earliest legislative acts and policies in the
field of Indian affairs explicitly recognized the basic right to
consultation belonging to Indian tribes in their dealings with the
Federal Government. Congress' role as the primary policy-making branch
of government with respect to the Federal Government's duty of
consultation with tribes, as well, is clearly recognized and embodied
in the text of the Constitution.
As Chief Justice John Marshall, a leading member of the Founding
Generation who helped to secure Virginia's ratification of the
Constitution, emphasized in the leading Indian law case of Worcester v.
Georgia, 31 U.S. 515 (1832); ``That instrument confers on congress the
powers of war and peace; of making treaties, and of regulating commerce
with foreign nations, and among the several states, and with the Indian
tribes. These powers comprehend all that is required for the regulation
of our intercourse with the Indians.'' Given this clear constitutional
mandate and the Framers' clearly stated intentions as to which branch
of the Federal Government was primarily responsible for regulating this
country's government-to-government relations with Indian tribes, the
Founding Fathers would not only approve of H.R. 5023; they would want
to know what took Congress so long to do it!
The Federal Government's early Indian policies closely followed
British colonial-era precedents, which placed Indian affairs and the
negotiation of treaties under the sovereign authority of the Crown.
Under this authority, close consultation and coordination between
tribes and the Crown's colonial representatives and agents were
commonplace and customary. Treaties and agreements were negotiated
after extensive discussions with tribal leaders. The chiefs of the
tribe would meet with colonial officials in their own villages or
travel personally to Richmond, Philadelphia, Albany, Boston and other
colonial capitals to engage in extensive consultations, voice their
grievances, and discuss important issues such as regulation of trade
and military alliances. As the respected historian, Alden T. Vaughan,
has documented in his book, Transatlantic Encounters: American Indians
in Britain, 1500-1776 (2006), it was not uncommon, as well, for tribal
leaders to travel to England to meet personally with the King in order
to make their feelings, wishes and grievances known to the government.
History records a number of instances where the King's ministers and
representatives would be instructed and even admonished in the
strongest of terms to accommodate tribal requests and address the
concerns that were voiced during these formal consultation sessions.
The Founders were not only familiar with this long-established
history and custom of close and meaningful consultation with Indian
tribes, many of them had been active participants in the treaty
negotiations, talks and embassies of the colonial period. George
Washington, Benjamin Franklin, and James Wilson, for example, were all
signers of the Declaration of Independence and also major participants
in the Constitutional Convention held in Philadelphia in 1787. They
provide the most prominent examples of noted members of the Founding
Generation who helped to frame the Constitution and who had extensive
experience in dealing with Indian tribes according to this tradition of
close and meaningful consultation that had developed in the colonies
prior to the Revolutionary War.
Throughout the Revolutionary War period, the Founders made it a
point to engage in effective and meaningful consultations with the
tribes whose support was vital to the success of their war efforts
against the British. For example, the first Indian treaty negotiated by
the United States was in 1778 with the Delaware Nation. That historic
agreement provided for the Delawares and other friendly tribes that
might join them ``to form a state whereof the Delaware nation shall be
the head, and have representation in Congress.'' It would be hard to
imagine a more explicit example of the Founders' recognition of a right
to consultation belonging to Indian tribes than this offer to the
Delawares of a representative voice in the Congress of the United
States.
In the 1785 Treaty of Hopewell with the Cherokees, one of the first
treaties ratified by Congress following the Revolutionary War, the
tribe's right to effective consultation was secured by Article XII;
``That the Indians may have full confidence in the justice of the
United States, respecting their interests, they shall have the right to
send a deputy of their choice, whenever they think fit, to Congress.''
It is worth noting that the most prominent member of the
congressionally appointed negotiating team for this treaty was Benjamin
Hawkins. His resume as a member of the Founding Generation includes his
service as a colonel on George Washington's staff in the Continental
Army. Elected to the North Carolina House of Representatives in 1778,
he was chosen as a delegate to the North Carolina convention that
ratified the United States Constitution.
It is also worth noting that the same basic offer to the Cherokees
of sending a delegate to Congress was renewed by the United States half
a century later in 1835, in the Treaty of New Echota. The important
point to recognize is that the right of consultation belonging to
Indian tribes was well-established at the founding of our nation, and
can be found embraced as precedent by the United States in the early
decades of our national experience.
Under the authority of the new Constitution ratified in 1789,
President George Washington and other leading figures of the Founding
Generation continued to recognize and act upon the basic right of
consultation belonging to the tribes as the best policy for
guaranteeing good relations, peace and amity under the treaty
relationship. As Father Francis Paul Prucha, the dean of American
historians when it comes to early United States Indian policy, has
documented in American Indian Treaties: The History of a Political
Anomaly (1994), tribal delegations and embassies frequently visited the
nation's capital to meet with the ``Great Father'' (several of the
tribes' term of formal greeting for the President of the United
States). Federal Indian agents and appointed treaty negotiators in the
field assured a steady flow of communications and exchange of
information with the tribes, and Congress closely monitored these
consultations and negotiations in the years immediately following
ratification of the Constitution.
The first major piece of legislation passed by Congress under the
new Constitution, for example, was the 1790 Trade and Intercourse Act,
a law that is still on the books today. It would be difficult to cite a
more convincing example of the Framers' intent with respect to the
importance of the right to consultation belonging to Indian tribes
under our Constitution than that provided by President George
Washington's talk to the chiefs and counselors of the Seneca Nation in
1790, shortly after passage of that historic Act. The Senecas and their
chief, Cornplanter, had come to speak with the President of the United
States personally about the threats they perceived to their rights and
interest in their lands, guaranteed by the Treaty of Fort Stanwix
negotiated with the Seneca Nation by the United States immediately
following the Revolutionary War. The mutual exchange of views, the
evidence of close listening by the President, and the utmost respect
shown for the Seneca Indians as human beings entitled to be
meaningfully consulted by the President of the United States is
instructive of the Founding Fathers' own example when it comes to this
country's early dealings with Indian tribes.
I have received your Speech with satisfaction, as a proof of
your confidence in the justice of the United States, and I have
attentively examined the several objects which you have laid
before me, whether delivered by your Chiefs at Tioga point in
the last month to Colonel Pickering, or laid before me in the
present month by the Cornplanter and the other Seneca Chiefs
now in Philadelphia.. . .
Here then is the security for the remainder of your lands. No
State nor person can purchase your lands, unless at some public
treaty held under the authority of the United States. The
general government will never consent to your being defrauded.
But it will protect you in all your just rights.''
Unfortunately and tragically, the wisdom and experience of
President Washington and his Founding Generation respecting the basic
right of effective and meaningful consultation belonging to Indian
tribes on important matters affecting their lands and interests was too
often ignored or forgotten in our nation's subsequent history.
Congress, the Executive Branch and the nation itself have been less
than consistent in listening seriously and responsively to tribal views
and concerns and showing respect for this founding principle of our
democratic, consensual form of government.
Indian tribes are still plagued today, for instance, by the
problems of fractionated land interests, checker-boarded reservations,
and the loss of billions of dollars in lease revenues under the failed
laws and policies implemented by the Allotment Acts of the late 19th
century. The Allotment Acts were passed over strenuous tribal
objections and resistance and without any meaningful form of tribal
consultation. The Termination policy of the 1950s provides another
example of the fateful consequences of the Federal Government's
failures to adequately consult with tribes. Following World War II,
again over significant tribal objections and little in the way of
meaningful efforts at consultation, Congress enacted the Termination
policy and accompanying legislation that ended the federal trust
relationship with dozens of tribes. Termination was strongly resisted
by tribes, fought, and finally reversed after being recognized as a
dismal failure by Congress and the Executive Branch within a decade of
its attempted implementation. Many tribes that were restored to the
federal-tribal trust relationship following their termination are still
struggling with the long-term effects and problems caused by that
failed policy.
The lessons of our history are clear, as I have tried to show in my
brief testimony. As Chairman Rahall stated in 2008 in introducing
legislation that was similar to this present bill, but which only
sought to require specified Federal Agencies to establish an effective
and accountable consultation process with Indian tribes; ``Throughout
history when Indian policy has been made without tribal input, the
results have been failure after failure. When Indian tribes are
consulted and a part of the process up front, the results are
successful policies.'' I couldn't agree more.
It is significant that in more recent decades, Congress, acting on
the lessons of the past, has enacted several important laws that
require varying levels of consultation with tribes on specific issues
and agency actions. The most significant of these include:
The American Indian Religious Freedom Act (AIRFA) (16
U.S.C. 1996), which establishes the policy of the federal
government ``to protect and preserve for American Indians their
inherent right of freedom to believe, express, and exercise''
their traditional religions and spiritual beliefs;
The Archeological Resources Protection Act of 1979.
(ARPA) (16 U.S.C. 470aa-mm), which requires federal agencies to
consult with tribal authorities before permitting archeological
excavations on tribal lands (16 U.S.C. 470cc(c));
The National Historic Preservation Act (NHPA) (16
U.S.C. 470 et seq.), which requires Federal agencies to consult
with any Indian tribe or Native Hawaiian organization that
attaches religious and cultural significance to sites covered
under section 106 of the Act;
The Native American Graves Protection and
Repatriation Act (25 U.S.C. 3001, et. seq.); which requires
consultations with Indian tribes and traditional religious
leaders and regarding the treatment and disposition of specific
kinds of human remains, funerary objects, sacred objects and
other items.
A number of Federal agencies in recent years have complimented
these statutory requirements with specific regulations requiring
consultation with tribes. Important examples of such regulations
include:
The Native American Graves Protection and
Repatriation Act (NAGPRA) Implementing Regulations (43 CFR 10);
The National Environmental Policy Act (NEPA)
Implementing Regulations 40 CFR Part 1500, requiring agencies
to contact Indian tribes and provide them with opportunities to
participate at various stages in the preparation of an
environmental assessment (EA) or environmental impact statement
(EIS);
National Historic Preservation Act (NHPA) Regulations
Implementing Section 106 (36 CFR Part 800), requiring
consultation with Indian tribes throughout the historic
preservation review process. Federal agencies are required to
consult with Indian tribes on a government-to-government basis,
in a manner that is respectful of tribal sovereignty. The
regulations require federal agencies to acknowledge the special
expertise of Indian tribes in determining which historic
properties are of religious and cultural significance to them.
In addition to these important legislative and regulatory
initiatives and reforms, Executive Orders and Memoranda requiring
consultation with tribes on a government-wide basis have been issued by
recent Presidential Administrations. Notable examples include:
EO 13175: Consultation and Coordination with Indian
Tribal Governments (Nov.6, 2000)
EO 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
(February 11, 1994).
Most recently, President Obama's ``Consultation and Coordination
with Tribal Governments'' policy requires that Federal agencies have an
accountable process for meaningful and timely input by tribal officials
in the development of regulatory policies that have tribal
implications. The new Administration policy also requires a written
statement by the agencies as to why they did not follow recommendations
that may have been proposed or suggested by the concerned tribe.
As the current United States Ambassador to the United Nations, Dr.
Susan Elizabeth Rice, recently stated; ``[T]he level of tribal
consultation is now at historic levels-marking a new era in the United
States' relationship with tribal governments.'' But this statement
relates only part of the story that tribal leaders tell. As the
testimony of tribal leaders before this Committee on Chairman Rahall's
2008 bill, the Consultation and Coordination With Indian Tribal
Governments Act (H.R. 5608), demonstrated, and as my own experience in
working with and listening to tribes served by the IPLP Program in
Arizona and throughout the United States confirms, the levels of
consultation and coordination between tribes and the myriad number of
Federal Agencies they must deal with on numerous types of issues and
concerns are highly inconsistent across agencies, departments and
programs.
In some cases, as tribal leaders have testified, consultation is
non-existent, or simply a pro-forma exercise in box-checking. ``Yes we
consulted with you,'' tribes are told, but only after the decision had
been effectively made, and certainly without listening to tribal
concerns. In point of fact, the goal of institutionalizing meaningful
and effective consultation with tribes by all agencies of the Federal
Government is far from being achieved. The key elements missing from
the equation, as tribal leaders have consistently explained, are
accountability and definite and certain procedures applying to all the
agencies that make decisions affecting tribal rights and interests
under the Federal Government's trust responsibility.
This is why passage of H.R. 5023, The RESPECT Act, is so important,
timely and necessary. The bill restores Congress' historic role,
established at our nation's founding in the Constitution, as the
coordinate branch of our system of government with primary
responsibility for the management of Indian affairs with the Federal
Government. The RESPECT Act expresses the sense of Congress that
consultation with Indian tribes constitutes more than simply notifying
an Indian tribe about a planned undertaking that some agency
bureaucrats have already made up their minds about, regardless of what
the tribes might have to say. Under H.R. 5023, every Federal agency, as
required by act of Congress, will be accountable for establishing a
process of consultation that seeks out, seriously discusses, and
meaningfully considers the views of tribes, and, where feasible, seeks
agreement with them regarding proposed activities and other matters
that affect tribal lands and interest. Most significantly in terms of
ensuring accountability and follow-through, the RESPECT Act puts the
force of law behind what had previously been left to agency discretion
under the recent Executive Orders I've mentioned. Under this
legislation, for the first time, Indian tribes would be permitted to
bring a civil action in a U.S. district court if the tribe believes
that the requirements of this Act have not been met.
In my own view, the right to judicial review included in this
legislation represents the most important and indispensable element of
H.R. 5021. Agencies like the Department of Health and Human Services,
for example, have mandated that all its operating divisions develop
their own policies on tribal consultation, but, as tribal leaders have
testified, many failed to follow-up in a timely manner on these
mandates. The RESPECT Act will require them to follow-up, with definite
set guidelines to follow. Executive Orders and Memorandums, as tribes
know, do not carry the full force of the law. This bill will have that
force behind it. By passing this legislation, Congress will reassert
its constitutionally specified role of primary responsibility for
management and oversight of the government-to-government relationship
between tribes and the Federal Government under the trust
responsibility.
This bill will be highly cost-effective. Tribal leaders have
testified that where agency consultation has been done in an effective
manner in the past, citing the example of the Indian Health Service's
consultation process on the Indian Health Care Act and its special
diabetes program for Indians, the outcomes have been successful in
terms of good public policy and improved health care delivery in Indian
country. The RESPECT Act will institutionalize these types of best
practices throughout the Federal Government.
This bill will also improve and actually work to speed-up in many
instances the regulatory process as it affects Indian tribes and their
lands. Tribal leaders have said repeatedly that the failure to provide
proper consultation is what really leads to delay in implementing new
regulations. Oftentimes they feel they have no recourse except to bring
costly and time-consuming legal challenges to agency actions that might
otherwise be avoided under an effective consultation process. The
RESPECT Act will work to achieve significant cost-savings for the
government and tribes in bringing needed legislative and administrative
reforms to Indian country.
Let me point to what Justice Louis Brandeis memorably once called
``the laboratory of the states'' to show that it is not only possible,
but good public policy to implement this type of comprehensive,
government-wide approach to tribal consultation. New Mexico, a state
with a large number of federally recognized Indian tribes, passed a
bill in 2009 designed to promote cooperation between state government
and Indian tribes. The measure requires every cabinet-level state
agency to designate a tribal liaison to report directly to the head of
the agency. It also orders state agencies to develop policies promoting
better communication and culturally appropriate delivery of services.
One of the most respected tribal leaders in Indian country, Joe Garcia,
Chairman of the All Indian Pueblo Council, stated that the signing of
this bill marked a new era in state-tribal relations, and put New
Mexico on the map as a guiding light for the rest of the country,
including Congress, to follow.
Let me close by noting that there is an important opportunity for
the United States and this Congress, in particular, to not only follow,
but lead here as well. I recently returned from the July 2010 meeting
of the United Nations Expert Mechanism on the Rights of Indigenous
Peoples, held in Geneva. The Expert Mechanism provides expertise and
guidance on the rights of indigenous peoples to the United Nations
Human Rights Council. At its July meeting, the UN Expert Mechanism
reviewed its ``Progress Report on the Study on Indigenous Peoples and
the Right to Participate in Decision-Making.'' The report takes special
note of the critical importance of promoting ``the full and effective
participation of indigenous peoples in decisions which directly or
indirectly affect their lifestyles, traditional lands and territories,
their cultural integrity as indigenous peoples with collective rights
or any other aspects of their lives, considering the principle of free,
prior and informed consent.'' The report can be found at Human Rights
Council, Expert Mechanism on the Rights of Indigenous Peoples Third
Session, Progress report on the study on indigenous peoples and the
right to participate in decision-making, A/HRC/EMRIP/2010/2, 17 May
2010, at para. 1.
Throughout much of the twentieth century, the United States of
America was at the forefront of many of the most important advances in
the protection and promotion of indigenous peoples' human rights,
achieved through its domestic Indian legislation and policies promoting
tribal self-determination. Without question, it has been Congress that
has been primarily responsible for this influential leadership role and
its salutary effects on the development of customary international law
norms and international human rights standard-setting activities
applied to indigenous peoples around the world. Landmark congressional
legislation passed during the latter part of the twentieth century such
the American Indian Religious Freedom Act, the Indian Self-
Determination and Education Assistance Act, and the Indian Child
Welfare Act, are routinely cited within the United Nations and
Organization of American States human rights systems as worthy examples
of best practices that other countries should strive to emulate.
Without question, congressional passage of H.R. 5023, the RESPECT Act,
would reassert the United States' global leadership role in the
protection and promotion of indigenous peoples' fundamental political
freedoms and human rights in the twenty-first century.
In closing, I would emphasize that H.R. 5023 does not in any way
represent some sort of radical departure from the past practices and
precedents of the United States and this Congress in its dealings with
Indian tribes. Rather, passage of this bill would represent a long-
overdue return to the true principles upon which this nation was
founded. As I've tried to show in my testimony, the Framers of our
Constitution clearly intended that the Federal Government respect the
right to meaningful consultation belonging to Indian tribes in their
dealings with the United States. The RESPECT Act will not only honor
those founding intentions; it will, at long last, enact them into the
law of the land.
Thank you and I am happy to answer any questions the Committee
would like to ask.
______
Mr. Grijalva. Thank you very much. Let me thank the
witnesses. Let me ask any, it is for all the panelists if
anybody, but maybe beginning with Chairman Norris. Section 207
of the RESPECT Act provides protections for sensitive
information, such as the location of sacred sites. Have
agencies been respectful of this type of information in past
consultations?
Dr. Norris. Mr. Chairman, Members of the Committee, I would
like to share with you the most recent activities with respect
to the Border Patrol. There are many sacred sites that have
been identified and that are important to the O'odham people on
our nation and we have had periodically to been having to
remind or to bring to the attention of the United States Border
Patrol that certain areas that they are conducting their
activities are at sacred sites that are important to the
O'odham Nation, and so I don't believe that--and for the most
part I think they are respectful of that, but, on the other
hand, we do have situations where it really didn't matter that
those sacred sites were important to the O'odham people and
their business would be conducted anyhow.
You know, and again, I have to reiterate, and I don't want
the Committee to misinterpret, the O'odham are very concerned
about the security of the United States of America and we have
been doing what we can to ensure that the security is in place.
We have 75 miles of international border that borders the
southern part of our O'odham Nation and we have nine villages
in Mexico, and so it is important for us. We have a vested
interest not only in our villages in Mexico, but in our
membership in Mexico and those sacred sites that are there as
well. So, Mr. Chairman, I think that there are some that
respect and understand when the Nation raises its concerns
about Border Patrol activities on sacred sites or in sacred
site areas, but I think this Act would give us the assurance
that those areas would be protected.
Mr. Grijalva. Thank you very much. One other question,
Chairman Norris. You state that judicial review would make
agencies accountable for their consultation actions or lack
thereof in your testimony. Has there been situations where the
Nation could have utilized the mechanism of judicial review?
Dr. Norris. Well, most recently, Mr. Chairman, the O'odham
Nation in 1986 was Congress passed a bill, the Gila Band Indian
Land Replacement Act, and it is clear in that Act that the
United States Government will take into trust certain lands
that the Nation was able to acquire as a result of the Public
Law 99-503. Most recently, as recent as March, the Tohono
O'odham Nation has had to file suit against the Department of
the Interior for failing to enforce Public Law 99-503. I am
happy to report as a result of that lawsuit, as recent as last
Friday, the Department of the Interior has granted the land
acquisition that the Nation has had to file suit against them.
Mr. Grijalva. Thank you. Chairman Oatman, your testimony, I
think, highlights the fact that meaningful and effective
consultations is often ignored or inconsistently utilized by
Federal agencies. How has this uncertainty about how
consultation will be employed impacted your tribe? If you could
just comment on that.
Mr. Oatman. I think one of the examples that were provided
was the impact of the bighorn sheep issue. I think one thing
that we are dealing with right now is with the NOAA
administration. We have an ongoing thing going right now with
them in regards to our--I am sorry, this particular issue is
new, it is not in our testimony, but there was some treaty or
treaty territories from 1855, there was the boundaries are set
for exclusive use for the Nez Perce Tribe, and then in 1863
there was another treaty, a land cessation treaty, would have
still been changed the right for our right for that exclusive
use in the 1855 boundary area, and so we have a feeling from
our tribe that NOAA is not recognizing that that boundary is,
you know, that area was set exclusively for us and now they are
allowing other tribes to come into our area and fish in our
exclusive right area. So that has been a big concern for us
where we think we need, you know, a little more consultation on
that because it creates hostilities between the tribes which
becomes a public safety issue.
Mr. Grijalva. Thank you. I have a couple more questions for
Mr. Williams on the follow-up. My time is up now. Mr. Hastings?
Mr. Hastings. I just have one question. As you can note,
there are a lot of Members that aren't here because of
conflicts, and I know that there are Members probably on both
sides that want to ask questions of you. Could I just get
confirmation from all of you that if you get a question from
somebody that is not here, that you will respond?
Mr. Williams. Absolutely.
Dr. Norris. Yes, sir.
Mr. Oatman. Yes.
Mr. Hastings. I would be more than happy to yield back to
the Chairman if he wants to follow up in his questioning.
Mr. Grijalva. Thank you, Mr. Hastings. Mr. Williams, in
your testimony you state that the right to judicial review
included in the legislation is the most important element of
the bill because it permits tribes to seek redress for an
agency's failure to meet the requirements of the act.
Practically speaking, how will this authority improve best
practices by an agency? That is a question that came up in
other testimony. Could it backfire by encouraging litigation
between sovereigns and overwhelming the Court system, which was
another point that was brought up as an objection.
Mr. Williams. Yes, Mr. Congressman. I think it is clear
from the testimony that the goal of institutionalizing
meaningful consultation with tribes by all agencies of the
Federal Government is far from achieved, and the key elements
that are missing from this equation as the tribal leaders have
told us and as Members of Congress themselves have recognized
are accountability and definite and certain procedures. This
bill guarantees both, and the primary mechanism for
guaranteeing that is not necessarily the threat of litigation.
I don't like to look at the right of judicial review as a
threat, but rather simply a right and a mandate and sets the
clear policy of Congress, telling administrative agencies that
this is the law of the land and you ought not to look at this
as a threat to your actions, but rather as just part of the
legal structure in which you operate.
Let me also comment that it is important to recognize that
the right to self-determination, which is clearly the law of
the land and which Indian tribes have in numerous instances
gone to Court to sue on that particular right under Federal
legislation passed by this Congress, the right to self-
determination is meaningless without the right to consultation.
You can't have one with the other. How can you be informed
about the choices that you need to make as a self-determining
people unless you are fully consulted and educated and have a
chance to engage in dialogue. That is what this bill does. I
think it is inappropriate to look at the right to give judicial
recourse as a threat to the actions of Federal agencies. I
think it is a necessary guidance as to the clear sense of
Congress as to the importance of this right to consultation as
part of the larger fabric of our various pieces of legislation
which guarantee the right to self-determination for Indian
tribes.
Mr. Grijalva. Yes. Let me just follow-up on that. I think
as we follow up with Interior and working on this legislation
as it moves forward one of the points of contention will be
judicial review and the removal of that section. The removal of
that section would do what to this legislation?
Mr. Williams. It would gut the legislation and make it
essentially meaningless. Again, without that force of law,
Congress has not told Federal agencies what it wants to do in
terms of implementing the government-to-government
relationship. Yes, while you are sitting there in those
negotiations and consultations, what it does is it makes
Federal policymakers accountable and it makes them go through
the steps and requirements of this act. So without having that
mandate what we are going to get is the type of inconsistent
application of the Executive Orders that we have heard today.
Essentially, the Executive Order is this legislation without
the mandate is what you are basically talking about. The
mandate is what is going to give it the teeth that it needs to
satisfy the need for consultation the tribes are constantly
asking for from this Congress.
Mr. Grijalva. Thank you very much. Ms. Christensen? Doctor?
Ms. Christensen. Thank you, Mr. Chairman. I guess I really
just have one question and Professor Williams has partly
answered it because the question is do you agree, and this is
to everyone on the panel, both the Chairmen and attorney
Williams, do you agree that the bill is too restrictive in this
particular instance that I am going to refer to in that it
limits the Department of the Interior from consulting in other
ways that may have to be crafted in a unique way to meet some
special situation. As the representative from DOI cited as one
way in which the bill might be too restrictive, they might not
be able to craft a special consultation for a unique situation.
Do you believe that the bill is too restrictive in that way?
That is my only question.
Dr. Norris. Mr. Chairman, Members of the Committee, Dr.
Christensen, I don't agree with that at all. I don't think it
does restrict tribes and the Department, I don't think, from
being able to do that. I think that what it does is it gives me
assurance as a tribal leader that when the bureau fails to do
what is right and fails to consult with tribal governments on a
government-to-government level, it gives me the assurance that
they are going to be required to do that. I don't think there
are any restrictions associated to that. So thank you for your
question.
Ms. Christensen. So it is not overly prescriptive in how
they must consult. Chairman Oatman?
Mr. Oatman. Yes. I would be in agreement with the Chairman
said. I don't think it would be restrictive, I think it would
just be strengthening that consultation and providing that, you
know, strengthening that structure and that framework with the
discussions with the tribes and the tribal leaders.
Mr. Williams. Yes. Thank you, Congresswoman. If you look at
the Act itself, it very clearly states that nothing in the Act
limits the ability of an agency to engage in additional
consultation procedures, and the very flexible procedure which
I outline is essentially, very early in the planning stage, let
the tribe know. From my reading of the act, in fact, I think
the Administration's concerns can be addressed within the
structure of this Act by saying, OK, it is very early in this
planning stage and I think we might need a different type of
consultation process, let us contact all the tribes that might
be affected and come to an MOA or some sort of understanding.
That is perfectly consistent within the confines of this
legislation. So, again, I think it gives that needed
flexibility, which I agree is one of the most important values
you need in this type of one size fits all approach. Congress
legislates one size fits all many times. That is what a law is.
It applies to everybody. The key is to get it right so that it
can be applied in a flexible fashion to address the needs of
both the public and the tribes.
Ms. Christensen. Thank you. Thank you, Mr. Chairman.
Mr. Grijalva. Gentlelady from Wyoming, Ms. Lummis.
Ms. Lummis. Thank you, Mr. Chairman. For Chairman Norris
and Chairman Oatman, since the Executive Order has been put in
place and the creation of action plans by some agencies, have
either of your tribes been in consultation with agencies under
that new rubric?
Dr. Norris. Mr. Chairman, Members of the Committee,
Congressman, I have to say that since this Administration has
taken office I have received many calls from the Indian Office
of the President's Office asking for information or asking for
opportunity to consult, so I have to agree that, yes, this
Administration has overwhelmingly--in my 33 years of tribal
government service, I have begun more calls from D.C. in this
last year and months than I have ever gotten in my 33 years of
service. I think, though, that there are times when, I mean,
what constitutes consultation, you know, and some of the
questions that we have in tribal government? So we have to ask
is this a consultation session or what is it? You are asking
for information but are you going to use that as a box check
issue and say, OK, well, we consulted because we called
Chairman Norris, you know? So I think that what this law does
is it clearly defines what that process is and gives and
assures tribes that when we say consultation, we truly mean
consultation.
Ms. Lummis. So under your understanding within the law of
what a consultation means, would those contacts that you
received, those phone calls, have constituted a legal
consultation pursuant to the law?
Dr. Norris. I think when I get the calls I don't believe
those are consultations. I think consultations are when you sit
down, and you meet face to face and you lay out the issues, or
the ideas, or the things that are being brought to the table
and we discuss, and we negotiate and we consult with each other
on those issues.
Ms. Lummis. Chairman, have any of those types of
consultations occurred?
Dr. Norris. Yes, they have.
Ms. Lummis. OK. How are they working?
Dr. Norris. Well, about a year or so ago I was involved
with a consultation on transportation with the Bureau of Indian
Affairs, and too many times my experience has been that the
parties that are usually involved from the Federal side are not
necessarily those individuals that have any decisionmaking
authority, and so when we realize that as tribal leaders we are
like, OK, well--when we ask questions, well, the response
typically would be, well, I will have to check with the office,
or I will have to check with so and so, and so it sort of
defeats the purpose of consultation if we can't deal with
people that have any direct authority or responsibility to make
and answer the questions to make the decisions that we need to
be made then and there.
Ms. Lummis. I hear you. Do you think H.R. 5023, the law we
are discussing today, will require people who are capable of
calling the shots, making the decisions, to be at the
consultation?
Dr. Norris. That would be my hope, and that is my
understanding. If it isn't explicit in the law, I would ask
that that also be a consideration as well.
Ms. Lummis. OK. Thank you. Chairman Oatman, any comments on
this line of questioning?
Mr. Oatman. Yes. We have sent some comments in, actually,
after President Obama signed that, but we have written comments
to their actual consultation policies. We have written letters
in to Interior, Education, Commerce, Treasury, Defense,
Transportation, Energy, Labor and Justice, are some of the main
ones that we have had contact with. As far as consultation, I
think for the tribe we have a very good relationship with
majority of the national forests that we do business with. We
actually have an eight national forest meeting locate on our
reservation are the ones that are within our seated territory
and they come in and they meet with us once a year. I think we
are probably one of the only tribes that meet with that many
national forests. I do think that, you know, this law will help
strengthen and build those relationships so that we can, you
know, build upon that, what we have started with the national
forest, and reach out to the other agencies.
Ms. Lummis. Thank you, Mr. Chairman. I yield back.
Mr. Grijalva. Thank you. Mrs. Napolitano?
Mrs. Napolitano. Thank you, Mr. Chair. I will take just a
little bit of a different line of questioning. To the two Chair
and the Professor, will any of these bills be able to assist
the tribes--and I heard you talk about transportation, dealing
with the BIA that can answer the questions. I deal with water.
How would this affect any of your ability to negotiate, to be
able to carry forth programs, whether it is water storage,
water recycling, delivery of water, infrastructure, all of
that, which I am sure your tribes need, your reservations are
in need of. How would that affect your ability to be able to
directly lead into solutions or helping get your word in to be
able to be queued in in assistance with the Federal Government?
Dr. Norris. Mr. Chairman, Members of the Committee.
Congresswoman Napolitano, it is good to see you again. Thank
you for your question. I think for me it will have a
significant impact in giving me some level of assurance that
where we may have resistance for whatever reason on the part of
the Federal agency to meet with the tribes, that it will assure
me that I have a process that is engraved in law that obligates
that Federal agency to consult with me as a tribal leader. So I
think with regard, whether it is water, whether it is
transportation, whether it is land acquisition, whether it is
housing, whether it is Border Patrol, whatever the case may be,
I think that this law will give me some assurances that I am
going to be dealt with on a government-to-government level.
Mr. Oatman. For my tribe, in regards to the water, we had a
big water summit back in 2005, Snake River Basin adjudication,
but, and particularly for this bill I think it would benefit
us. We are a big fishing tribe. We have one of the largest
Salmon runs and Steelhead runs in the nation, and so, you know,
this bill would help us ensure that we provide clean water, and
help us with our flows, in stream flows, for our creeks and for
our rivers to ensure that we have adequate, you know, water
supply for those particular species of fish.
Mr. Williams. Yes. Thank you, Congresswoman. My program
works with tribes, including Chairman Norris' tribes and a
number of tribes through the southwest, on water issues,
natural resource issues, and we have worked over the long term.
What typically happens is the tribe engages in the planning
process, lines up financing, starts working in Congress for
support, hires people and then hears a rumor that some
bureaucrat in Washington is about to implement a regulation or
issue a policy letter that could halt those plans, and trying
to get information becomes impossible. This process, the
strength of this bill is that it incorporates definite and set
procedures into the process, so it will have short term, as
well as long term affects for tribes. They know what is coming
down the pipe, particularly in the critical area of natural
resources where the timelines are so long, so that they can
intervene early and, for example, tell the administrator look
at all we have invested in this particular project, and this is
what your planned action and what you are thinking about might
do. So that is why I think this is such good public policy.
Mrs. Napolitano. I have a little bit more time. I will
delve into another area which is also part of what I am very
involved in this, mineral health services and health service
delivery on reservations. How would this be able to assist you
in getting additional service rendered on behalf of your people
for a reduction in suicide, or health services, whether it is
obesity or alcoholism, for instance?
Dr. Norris. Mr. Chairman, Members of the Committee,
Congresswoman Napolitano, I think that, you know, in having to
deal with the Indian Health Service or the Department of Health
and Human Services, although, you know--and I have to admit I
have had at least one audience with other tribal leaders and
Secretary Sebelius on many of those issues you just mentioned.
I have to admit that there has been an expressed willingness to
continue to work with tribes and ensure that those services are
ensured to tribal members within our tribal community. So I
would like to share that with you. I think, though, that if
there was a change in the attitude or a change in the
perspective on delivering those services to tribes, I think
that this bill would give me, again, some assurance that I
would have something to fall back on in the event that that
sentiment changed in the willingness to work with tribes and to
have an open door policy, and work with us and allow us to be
at the table when those issues are discussed.
Mr. Oatman. Yes. Our tribe, we have our own health clinic.
Nimiipuu Health is what it is called. We actually have two
clinics, one on the western end of our reservation and a
smaller one on the eastern end of our reservation. I think
this, you know, would provide vital information for us if there
are any policies or anything that are going to change that are
going to, you know, impact our services that we provide to our
tribal members. You know, we see a lot of those, we see on the
ground, you know, what are affecting our tribal members and
things that they go through, and particularly, you know,
diabetes, you know, a high rate of diabetes on the
reservations. Some of my other councilmen suffer from this
disease and so it is really a personal aspect for our tribe
because we lose, you know, quite a few family and tribal
members to diabetes, and so anything that is coming down the
pipeline in formal consultation to figure out, you know, how
can we address that, you know, through prevention or whatever
it may be.
Mr. Williams. Congresswoman, I have worked with tribes for
30 years and I can't think of an area that is more important
for early, effective and meaningful consultation with tribes
than public health. Dealing with the front line agency, tribal
officials, doctors, nurses, program administrators in the
communities before an agency contemplates significant action.
Because you get those folks in there and they can say, well,
why are you working on this problem, this is what we are really
concerned about. Or why are you thinking about this as an
approach, this is the approach that we have used. This is why
the relationship between consultation and self-determination is
so critical, because if we really care about tribes running
their own health programs and taking self-determination
seriously, then that duty of early, effective and meaningful
consultation has to be legislated into law.
Mrs. Napolitano. Thank you, Mr. Chair. I think it is quite
evident that things change with Administrations that impact how
they deal with the tribes. Thank you, sir.
Mr. Grijalva. Thank you. Gentleman from New Mexico, Mr.
Lujan.
Mr. Lujan. Mr. Chairman, thank you very much, and thank you
for bringing us together today. To our Ranking Member as well.
To the two Chairmen, thank you very much for being here and for
honoring us with your attendance, and many of your staff that
has joined us as well today. Professor, it is good to have you
here as well. Chairmen, has HHS began any consultation with you
tribes regarding the implementation of the Patient Protection
and Affordable Care Act? If so, how are those going?
Dr. Norris. Mr. Chairman, Members of the Committee,
Congressman Lujan, I have to share that I believe that we have
been involved. You know, we do get, I am not sure if that is
through the Indian Health Service, but there have been a number
of calls or information that has been exchanged there. If we
are talking about consultation in the sense that we are sitting
down and discussing this issue with those entities, we look
forward to that opportunity. There may have been one or two
opportunities in the past that we have done that, but I am not
fully aware of that.
Mr. Lujan. Mr. Chairman?
Mr. Oatman. Yes. I haven't seen I guess at the level I
would like to see it. You know, like them coming out and
visiting with us on these issues. It seems to be there is an
announcement that there is--you know, I know they are trying to
get as many tribal leaders as they can in one place, but I
think it would be nice if they could send, you know, a
representative from HHS out to the reservations to actually
have a sit-down with the tribal leaders. We do have, you know,
delegated tribal officials that do go to those meetings, but I
think it would be good, it would strengthen it if they could
come out and have a face to face with the tribe and say, you
know, this is how it is going to impact you guys.
Mr. Lujan. Mr. Chairman, the reason I asked that question
is I believe that the RESPECT Act is something that will assist
us with this going forward and that as we see the many benefits
associated with the Patient Protection and Affordable Care Act,
that this is something that needs to be implemented timely and
in close consultation with the tribes around the country,
especially in regards to the line of questioning that Mrs.
Napolitano had as well. Professor, with your expertise or
interpretation of consultation, how is it varied from
Administration to Administration, and how, through your studies
and research, have our tribal leaders responded to the
variations to attempt to be included with full and thorough
input?
Mr. Williams. Yes. Thank you. I started teaching Indian law
and working with tribes in 1980 and witnessed the Reagan
Administration, which really made some significant strides in
the area of consultation, following up on the Nixon
Administration Self-Determination and Education Assistance Act,
creating a culture of an expectation the tribes would make
decisions themselves. It was very consistent with President
Reagan's philosophy. I think it was also very consistent with
the Administration's philosophy of close consultation at the
local government level, whether that government with the states
or the tribal governments. It made a real difference.
Tribes had their differences, but the level of consultation
significantly improved. I think we have seen those levels
increasing. As tribes have become more educated, as tribes have
taken seriously the mandates of their own people to exercise
self-determination, they have realized they need closer
consultation with Washington. So I think it has been a two-way
street. I think we have seen a steady level, a steady growth
curve of consultation mainly responsive to tribal demands, and
I think this bill is an outgrowth. Tribes will tell you quite
frankly they are being consulted to death. They get phone
calls, they get emails, they get letters.
What this legislation would do is institutionalize and
regularize that process so that tribes know when they are
actually involved in legal consultation requirements. I think
it is going to reduce the workload of Congress. I know I have
worked with congressmen before on tribes who complain about
agencies not consulting them. This bill, I think, will address
that issue. It is going to reduce the workload on tribes, and
it is going to make agencies much more efficient and responsive
and get public policy out there faster because nothing steps a
regulation faster than tribal opposition, particularly when the
tribe feels it hasn't been consulted.
Mr. Lujan. Thank you very much. Mr. Chairman, again, thank
you for bringing this forward. As we saw some of the challenges
and problems created through No Child Left Behind, I think
clearly as we talk about the importance of the recognition of
sovereignty and the importance of tradition, but especially
language and the absence of the ability to include tribal
languages through our educational system is something that we
cannot allow to occur. Through proper consultation and looking
at the development of programs, such as No Child Left Behind,
it is clear as we talked about the importance of the inclusion
of language and preservation of language as part of our
tradition and sovereignty, that that is another example, Mr.
Chairman, that the RESPECT Act will be able to help clear up.
So appreciate that very much. Thank you, Mr. Chairman.
Mr. Grijalva. Thank you. Any Member, Ranking Member, any
further questions? Let me thank the panelists. Very
informative. Appreciate your comments. My gratitude for all of
you being here and for traveling so far on sometimes a short
notice. I appreciate it very much. Thank you. Let me call up
the next panelists, please. Thank you very much, and thank you
for your patience. Let me begin with The Honorable Joe Shirley,
President, Navajo Nation. Good to see you again, my friend.
Welcome.
STATEMENT OF HON. JOE SHIRLEY, JR., PRESIDENT,
THE NAVAJO NATION, WINDOW ROCK, ARIZONA, ON H.R. 4384
Mr. Shirley. Thank you, Congressman Grijalva. Good morning.
Ranking Member Hastings, Congresswoman Napolitano, good to see
you. Congressman Lujan, good to see you, my brother, and the
other honorable Members of the Committee. As the President of
The Navajo Nation, I am honored to appear before this Committee
on behalf of The Navajo Nation, and particularly on behalf of
the Navajo people who reside in Utah. I appreciate the
opportunity to provide testimony regarding H.R. 4384. Over the
last 50 years, the Federal Government has shifted from a policy
of paternalism, assimilation and termination to one that
respects the sovereignty of native peoples and which promotes
tribal self-determination on matters relating to internal and
local affairs.
The Utah Navajo Trust Fund is an internal and local Navajo
issue as it directly affects the lands, resources and citizens
of The Navajo Nation. The future of this trust fund has been
falsely characterized as a Utah issue, a misperception that
divides the Navajo people into artificial and geographic
groups. The Navajo people are one people and one nation, and
this is first and foremost a Navajo issue. The Navajo Nation
has made it clear in previous testimony that The Navajo Nation
wishes to be the trustee of this trust fund to protect our
Navajo beneficiaries. H.R. 4384 fails to recognize The Navajo
Nation as the rightful trustee over the trust fund.
The Navajo Nation has consistently opposed legislation that
diminishes the right of The Navajo Nation government to
maintain jurisdiction over our Navajo people, policies imposed
upon us without consultation or consent. It is ironic that on
the same day that this Committee is discussing H.R. 4384, which
fails to promote tribal self-government, this Committee just
finished discussing H.R. 5023, which, if passes as written,
recognizes the right of tribes to self-government and supports
tribal sovereignty and self-determination and requires
standards for effective consultation between tribes and the
Federal Government. I am hopeful that based on our long
government-to-government relationship this Committee will not
support any legislation directly affecting Navajo lands,
resources and citizens that does not have The Navajo Nation's
government's consent and support.
I sit before you today to oppose this legislation for just
such reasons. The Navajo Nation has made clear The Navajo
Nation wishes to be trustee of this trust fund to protect our
Navajo beneficiaries. This bill does not name The Navajo Nation
as the new trustee of this trust fund and an abrogation of the
Federal trust responsibility. In regard to The Navajo Nation
being named trustee, it is especially important that this
Committee understand the following. The Navajo Nation is
already a fiduciary of the trust fund monies and will always be
a fiduciary of the Navajo trust fund monies. In nearly 30
years, the nation's controller and The Navajo Nation have never
mismanaged, misappropriated or diverted any Utah Navajo trust
fund monies.
Also, The Navajo Nation has a proven record of honoring its
fiduciary duties as the trustee of numerous Navajo Nation trust
accounts. The Navajo Nation manages and has successfully
increased its own trust fund monies through the expert guidance
of its investment committee and the outside investment
managers. The Navajo Nation opposes this bill because it would
waste fund resources by duplicating administrative services
that The Navajo Nation already provides through the Office of
the Navajo Utah Commission and The Navajo Nation Office of the
Controller. The Utah Navajo Commission regularly administers
projects for Utah beneficiaries.
The Office of the Controller handles numerous funds and
accounts, including trust accounts. It is therefore a waste of
trust fund resources and a further abrogation of the Federal
trust's responsibility to duplicate administrative services
where the Nation can already provide them. This bill acts in
contravention of Navajo Nation sovereignty and Federal law by
imposing Utah state law within The Navajo Nation in violation
of Navajo Nation sovereignty and contrary to existing Federal
law. This bill creates a quasi governmental entity and a Navajo
Nation to be comprised of Navajo chapter representatives who
would be beyond the jurisdiction of The Navajo Nation, contrary
to the jurisdictional integrity as guaranteed by The Navajo
Treaty of 1868.
The Commission would bear the sole fiduciary liability for
the trust fund and further abrogation at the Federal trust
responsibility to the Navajo people. The bill imposes a
requirement on Navajo Nation chapters and Navajo Nation elected
officials to carry out elections which are outside their
official duties which are contrary to Navajo Nation law and
which are mandated to be paid for by Navajo Nation general
funds. Although The Navajo Nation objects to this bill for the
above-mentioned reasons, we also want to provide this Committee
with recommendations on how to move forward. First, this
Committee could have requested all interested parties to
testify at today's hearing.
For example, the Aneth Chapter, the largest chapter of
Navajos in the State of Utah, a chapter where the majority of
the resources that provide revenues for the existing trust fund
and the chapter where the majority of the beneficiaries reside,
have stated their wish that The Navajo Nation serve as trustee,
and yet, they have not been invited here to date to express
their wish. The Office of Special Trustee, who has also
expressed their preference that The Navajo Nation serve as
trustee, is also absent. Second, as we have always thought to
be trustee of this trust fund, we simply have asked what does
it take to make The Navajo Nation the trustee of this trust
fund? We have never received a response. Let us know what it
will take for The Navajo Nation to be the trustee and we will
work together on it together. Congressman Grijalva, honorable
Members of the Committee, thank you for this opportunity to
provide testimony. Again, The Navajo Nation does not support
this bill. Thank you.
Mr. Grijalva. Thank you very much, Mr. President. let me
know ask Dr. Janet Slowman-Chee, if you would please provide us
the testimony. Welcome. Look forward to it.
[The prepared statement of Mr. Shirley follows:]
Statement of The Honorable Joe Shirley, Jr., President,
The Navajo Nation, on H.R. 4384
Good Morning Chairman Rahall, honorable Members of the Committee.
As President of the Navajo Nation, I am honored to appear before this
Committee on behalf of the Navajo Nation and its citizens, and
particularly on behalf of the Navajo people who reside in Utah and who
are beneficiaries of the Utah Navajo Trust Fund (hereinafter ``UNTF''),
to provide testimony today in regard to House Bill H.R. 4384.
The Navajo Nation has consistently opposed legislation that
diminishes the right of the Navajo Nation Government to assert
jurisdiction over our Navajo People, that is imposed upon us without
consultation or consent, and that is developed outside of the normal
policy process that ensures that all interests are properly considered.
Unfortunately, I sit before you today to oppose this legislation for
just such reasons.
Government-to-Government Relationship
Over the last forty years, the federal government has shifted from
a policy of paternalism, assimilation and termination, to one that
respects the sovereignty of Native peoples, and which promotes tribal
self-determination on matters relating to internal and local affairs.
It is indeed essential to the sovereignty and self-determination of the
Navajo Nation that we maintain a government-to-government relationship
with the United States in deciding matters that concern and affect
Navajo lands, resources and citizens. We are here today to discuss
legislation proposed by Congressman Matheson that directly affects the
lands, resources and citizens of the Navajo Nation. I am hopeful that
based on our long government-to-government relationship, this Committee
will not support any legislation directly affecting Navajo lands,
resources and citizens that does not have the Navajo Nation's
Government's consent and support. The future of the Utah Navajo Trust
Fund is mischaracterized as a ``Utah'' issue. It is first and foremost
a Navajo issue.
The Navajo Nation Opposes House Bill H.R. 4384
The Navajo Nation adamantly opposes House Bill H.R. 4384 for
several reasons.
First, as the Navajo Nation has made clear in testimony and in
meetings with Congressman Matheson's staff, the Navajo Nation wishes to
be the trustee of the UNTF to protect the Navajo beneficiaries. This
trust fund has been plagued by a lack of accounting, mismanagement, and
misappropriation. House Bill H.R. 4384 does not name the Navajo Nation
as the new trustee of the UNTF and is an abrogation of the federal
trust responsibility.
In regard to the Navajo Nation being named trustee, it is
especially important that this Committee understand the following:
The Navajo Nation is already a fiduciary of the UNTF
monies and will always be a fiduciary of the UNTF monies. The
UNTF is capitalized by royalties generated from Navajo Nation
oil and gas leases on Navajo Nation Trust Lands. All royalties
from Navajo oil and gas leases go directly to the Navajo
Nation. Only after the royalties are in the control and custody
of the Controller of the Navajo Nation does the Navajo Nation
then distribute those royalties to the UNTF. See Exhibit A. In
nearly thirty years, the Nation's Controller and the Navajo
Nation have never mismanaged, misappropriated or diverted any
UNTF monies. Any claim that the Navajo Nation should not be
named the trustee because it would not honor its fiduciary
duties as a trustee is simply preposterous.
The Navajo Nation also has a proven record of
honoring its fiduciary duties as the trustee of numerous Navajo
Nation trust accounts, including the Permanent Trust Fund, the
Trust Fund for Handicapped Services, the Trust Fund for
Vocational Education, the Trust Fund for Senior Citizen
Services, etc. Through its Office of the Controller, the Navajo
Nation manages, and has successfully increased, its own trust
fund monies through the expert guidance of its Investment
Committee and outside investment managers.
Second, the Navajo Nation opposes House Bill H.R. 4384 because it
would waste trust fund resources by duplicating administrative services
that the Navajo Nation already provides through its Office of the
Navajo Utah Commission and the Navajo Nation Office of the Controller:
The Office of the Utah Navajo Commission (UNC) should
be the Trust Administrator for community projects which utilize
UNTF monies. The Office of the UNC regularly administers
projects for the Utah beneficiaries, leveraging funding
provided by the Navajo Nation, the UNTF, the Utah Navajo
Revitalization Fund, and federal agencies. The Utah Navajo
Commission is comprised solely of representatives from the
seven Utah Chapters who would ensure fairness in the
administration of UNTF funded projects for the Utah
beneficiaries.
The Office of the Controller handles numerous funds
and accounts, including trust accounts. As previously stated,
the Office of the Controller already handles the royalties
which capitalize the UNTF.
It is therefore a waste of trust fund resources and a
further abrogation of the federal trust responsibility to
duplicate administrative services where the Nation can already
provide them.
Third, House Bill H.R. 4384 is deeply flawed in both its substance
and in the process used to bring it to consideration today:
This bill acts in contravention of Navajo Nation
Sovereignty and seeks to divide the Navajo People into
geographic groups imposed on us by the federal government.
Although this legislation directly impacts Navajo
Nation lands, resources and citizens, the Navajo Nation has
been given limited opportunity to comment and consultation has
been solely of a cursory manner.
H.R. 4384 imposes Utah state law on the
``Commission'' and ``Trust Administrator'' in violation of
Navajo Nation sovereignty and contrary to existing federal law.
H.R. 4384 creates an ill-defined quasi-governmental
entity on the Navajo Nation (the ``Commission''), to be
comprised of Navajo Chapter representatives, who would
nonetheless purportedly be beyond the jurisdiction of the
Navajo Nation, contrary to Navajo Nation and federal law and
violating the Nation's right to territorial and jurisdictional
integrity as guaranteed by the Treaty of 1868.
By the express terms of the statute the Commission
would bear the sole fiduciary liability for the trust fund, in
further abrogation of the federal trust responsibility to the
Navajo people.
H.R. 4384 imposes a requirement on Navajo Nation
chapters and Navajo Nation elected officials to carry out
elections which are outside their official duties, which are
contrary to Navajo Nation law, and which are mandated to be
paid for by Navajo Nation general funds (the costs for which
only ``may'' be reimbursed from the trust fund at the
discretion of the Commission).
The Navajo People are one People. We were here before
the Federal government created states in the Southwest. Our
people are subject to the jurisdiction of the Navajo Nation
government and to federal jurisdiction. H.R. 4384 seeks to
divide the People by treating them differently from Navajos who
reside in New Mexico or Arizona.
The process for considering this legislation is
flawed. The Aneth Chapter, the largest Chapter of Navajos in
the State of Utah, the Chapter where the majority of the
resources are that provide revenues for the existing trust fund
(and where the environmental impacts occur), and the Chapter
where the majority of the beneficiaries reside, have
consistently stated the wish that the Navajo Nation serve as
trustee and yet they have not been invited here today to
express their wish. The Office of Special Trustee, who has also
expressed their preference that the Navajo Nation serve as
trustee is also absent, as is the Bureau of Indian Affairs.
Democracy and the Rule of Law on the Navajo Nation
On a final note, this Committee may hear testimony today which
disparages the Navajo Nation government, Navajo Nation officials or
even the Navajo people, or which creates the impression that the Navajo
Nation government is in disorder. On the contrary, it is vital that
this Committee understand that, while many of our political
institutions are young, the concept of democracy has always been part
of the Navajo life-way and is indeed taught to the Navajo people
through our creation stories as part of Navajo Fundamental Law. Navajo
Fundamental Law functions much like a constitution for the Navajo
people and government. Recently, the Navajo people have exercised their
democratic voice and, under Navajo Fundamental Law, their ultimate
authority over the Navajo Nation government, through the petition
process. As a result, there will be substantial changes to some of our
political institutions. Through democratic elections to take place this
fall, the Navajo Nation Council will be reduced in size from 88
delegates to 24 delegates.
These changes have been challenged in the Navajo Nation courts and
ultimately upheld by the Navajo Nation Supreme Court. It is a testimony
to the Rule of Law on the Navajo Nation, the integrity of the Navajo
people, and the health of our democracy that all the branches of the
Navajo Nation government are respecting these judicial decisions and
that elections are moving forward. Please be aware, however, that
nothing in the upcoming changes to the legislative branch will affect
the Office of the Controller, or the Controller's responsibility,
authority and capability to manage the UNTF.
Further, our government is much like the federal government. Some
individuals who assert to speak for certain groups of constituents seek
only to further their own interests. Our government's policy is quite
clear: only authorized Navajo officials may speak for the wishes of the
Navajo People. All others may speak only for their own interests and
must be considered accordingly.
Conclusion
Chairman Rahall, Honorable Members of the Committee, on behalf of
the Navajo Nation, I thank you for this opportunity to provide
testimony to the Committee on Natural Resources in regard to House Bill
H.R. 4384. We do not support this bill. However, the Navajo Nation
looks forward to working with the Committee through our government-to-
government relationship and with other members of Congress to introduce
legislation naming the Navajo Nation as the new trustee of the Utah
Navajo Trust Fund.
Thank you.
[GRAPHIC] [TIFF OMITTED] 57666.001
STATEMENT OF DR. JANET SLOWMAN-CHEE,
TEEC NOS POS, ARIZONA, ON H.R. 4384
Dr. Slowman-Chee. Chairman Rahall and distinguished Members
of the Committee, Ya' aaht'eeh doo Ahehee'. Thank you for the
opportunity for me to testify about H.R. 4384, to establish a
Utah Trust Fund Commission and other purposes. I have waited
for this opportunity since I was a little girl herding sheep. I
am from the State of Utah right at Four Corners. I had the
wonderful opportunity of looking after my sheep every day in
four states. I lived in Utah, I herded sheep in Arizona, New
Mexico, and I watered the herd in Colorado every day. I come
before you this morning to share with you our thoughts, our
feelings, our heartfelt feelings in regards to H.R. 4384 as a
Utah resident as declared, as beneficiary as declared by the
1933 Act. I have reviewed what the Declaration of Independence
says. This country coined this concept in 1776.
This particular document is soaked with the ideas and
concepts of what it means to be independent. Mr. Chairman,
Committee Members, 234 years later the Utah Navajo people are
still asking what is independence? How do we do that? How do we
get a handle on that? How do we hold that? The authors of the
Declaration of Independence were not wrong. We honor and we
cherish the concepts that are within that document. The State
of Utah once oversaw the management of the Utah Navajo Trust
Fund. The State of Utah themselves said we will step back, we
no longer wish to manage these funds, and they did so in 2008.
Their responsibilities expired December 31, 2009.
That was a very gloomy day for us as Utah Navajo people
because we have our children, our grandchildren, that look to
these funds for scholarships, we have elders that look at these
funds for housing, health care, the general welfare of our Utah
Navajo people. I am a beneficiary. I live in Utah. I have lived
in Utah all my life. My relatives, my grandparents, my cousins
live in Utah. I remember growing up my aunties would tell me if
you see an energy truck coming toward our house, our hogan,
toward you when you are herding sheep, be sure to hide. Hide
from the people that come in those energy company trucks. I
didn't understand why, but those were strict instructions I got
from my aunties and my mother. Today I know why.
However, I arose from that situation and I embraced the
opportunity of what it means to receive education. I have
earned my doctorate in education. I have attended Utah State
University, University of New Mexico and Arizona State
University. I hold a license as a school psychologist, a
special education teacher, a counselor and also as an
administrator. I have worked all my life with children with
disabilities and their families. Despite the hardships that we
have in Utah on Utah Navajo, I truly believe our Utah Navajo
people have the strength, the inspiration to overcome the
hardships, to say yes, I will and I can obtain knowledge and
skills to help enrich our communities. It is my testimony today
that we are fully ready. We have the strength to become
managers to manage the Utah Navajo Trust Fund.
We are there every day. We know what it is. We know what we
have and don't have. We know the smell of the oil spills. Do
you know there was a great cry about the oil spill in the Gulf?
Mr. Chairman, Committee Members, we have oil spills in Navajo
Utah every day that no one cries about. We have pipes that are
exposed that no one cries about. I am here to tell you today
that we, the Utah Navajo people, know what needs to be done. We
want to do it. We want to oversee these activities. We welcome
these challenges. In terms of supporting----
Mr. Grijalva. Need to ask you to begin to wrap it up so
that we can go on to the next witnesses as well, with all due
respect.
Dr. Slowman-Chee. We envision that the Utah Navajo trust
Fund would meet the needs of the Utah Navajo people through
effective organizational techniques. We are aware of investment
principles and the need to be prudent with the resources and
the procedures and policies that we would have. We know we
would be subject to regulatory supervision under Federal IRS
and state statutes. We welcome that. We are ready to be in
partnership with that. Again, I would like to say that we want
to keep the funds in Utah. We want to keep the Utah Navajo
Trust Fund in Utah. The Utah Navajo people have knowledge and
skills to manage the trust. So we are asking you, this
Committee, to partner with us in doing so. I thank you for this
opportunity.
Mr. Grijalva. Thank you. Mr. Mark Maryboy, Montezuma Creek,
Utah. Welcome, sir. Look forward to your testimony.
[The prepared statement of Dr. Slowman-Chee follows:]
Statement of Dr. Janet Slowman-Chee on H.R. 4384
Representative Rahall and distinguished members of the committee.
Ya' aaht'eeh doo Ahehee', thank you for the opportunity to testify
about H.R. 4384, ``to establish the Utah Navajo Trust fund commission
and other purposes''.
I have waited for this opportunity since I was a little girl
herding sheep in the Four Corners area on the Navajo Nation in the
state of Utah. Today I stand before you to share with you that the Utah
Navajo people deserve to fully execute the power of independence in
their lives every day. In 1776, the United States Congress coined the
Declaration of Independence; this document is completely drenched in
the people's desire to be independent. We as Utah Navajos are still
looking for avenues to enjoy independence, like every other American.
It has been 234 years since this unique empowering document was created
for all people including Native Americans and the Utah Navajo people.
In 1933, Congress created the Utah Navajo Trust Fund providing that
such funds be spent on the benefit of the Utah Navajos for education,
transportation, education, health and general welfare. The State of
Utah administered these funds until 2008 when they enacted legislation
which released them from the responsibility of managing the trust fund
effective December 31, 2009. A new trustee has not been designated. In
the absence of a trustee the trust fund is not being used for the
benefit of the Utah Navajos.
I am from Utah Navajo Nation; I am a beneficiary as declared by
Utah Navajo Trust Fund. We, the Utah Navajos are faced with the
unfortunate complexities of life such as inadequate infrastructure,
dilapidated housing, inadequate health care, and limited access to
higher education. Public transportation is nonexistent, and the general
welfare of my people is truly at risk. The Utah Navajos live in a
dangerous environment where fumes from the gas lines and oil wells
continuously seep into their homes and create health problems.
As a young woman, I personally experienced horrifying incidents of
running and hiding from energy companies who were exploring for
drilling possibilities. I did not know who these outsiders were, what
they were looking for or what they would do to me. I only knew what my
aunt told me which was to immediately hide. However, today I am in an
empowered position to confront the questions of how to wisely manage
and invest the revenues from the oil and gas extracted from my home
state. I embraced the awesome opportunity of higher education; I earned
my doctorate in education from Arizona State University. The Utah
Navajo Trust Fund gave me support and made my dreams come true, it made
me independent.
The point of my testimony is to tell you that despite the hardships
of Utah Navajo we are ready to take full control of our destiny. We
know what the problems and issues are, we know what resources we have
and do not have, and we know what the Utah Navajo people desire. We
speak and understand the language of ``strengthening the general
welfare of Utah Navajo'' because we live and breathe Utah Navajo every
day. This is true autonomy and the capacity to manage. Ultimately, our
goal is to make a positive difference by improving opportunities for
our children, families and communities, and still meet our long term
financial goals to sustain Utah Navajo life. We believe we can
responsibly preserve and grow the Utah Navajo Trust fund resources,
while realizing greater social change and serving the public good.
We will do this by supporting and meeting the needs of vulnerable
children, their families, and our communities in the areas of education
and learning, food, health and well-being, family, economic and
development, security and wealth creation. We are prepared and
committed to fully execute direct representation of the Utah Navajos,
to manage the trust with prudence and assure accountability and
transparency.
We understand and value the importance of an effective
organizational structure, policies and procedures to meet the mission
and goals of the Utah Navajo Trust Fund.
We envision growing the Utah Navajo Trust Fund to meet the needs of
the Utah Navajos through the following strategies:
1. A clear investment and spending policy that outlines the
roles and responsibilities of the board, staff and investment
consultants.
2. A clear investment strategy that includes reasonable
assumptions about the organization's risk tolerance, spending
plans and expected returns needed to support the spending.
3. A straightforward process to implement the asset allocation
(diversification) and investment strategy.
4. A recognition that investment theory is often at odds with
behavioral tendencies, making it very important that investment
committee members adopt a disciplined investment process that
helps them stay focused on the long term investment goals in a
challenging economy.
5. A willingness to discuss issues based on facts, data, and
thoughtful analysis.
6. A commitment to educate the board about prudent investing
standards and process.
7. A collaborative approach that focuses on fulfilling the
mission and goals of meeting the needs of the Utah Navajo
people.
We understand that trustees and directors are subject to regulatory
supervision under several Federal, IRS and State Regulatory Statutes.
In particular, in regards to fiduciary duties, The Uniform Prudent
Management of Institutional Funds Act (UPMIFA) passed in 2007 for the
state of Utah to guide charitable trustees. The training, education,
guidance and compliance with prudent investment standards are critical
for us. The Utah Navajos deserve transparency and accountability of the
trust fund.
Today, I am here to urge you to partner with us as Utah Navajos in
the journey of independence for Utah Navajo and the right to use the
resources to meet the needs of our Utah Navajo people. The authors of
the US Declaration of Independence were not wrong; the concepts they
fought for can be fully implemented, celebrated and enjoyed by the Utah
Navajo. The Navajo people in Utah have the knowledge and skills of
stewardship responsibilities for the Utah Navajo Trust Fund.
Mr. Chairman and distinguished committee members, H.R. 4383 stands
to preserve the revenues from the oil and gas leases in Utah Navajo
Nation for the benefit of the Utah Navajos. Secondly, H.R. 4384 stands
for direct representation of the Utah Navajo people on spending
decisions, complete management of the trust and annual audits to
establish accountability and transparency.
In summary, Mr. Chairman, we the Utah Navajo people are ready,
without hesitation, to completely take on the challenges of complete
oversight of the Utah Navajo Trust Fund. My Navajo name is Yik'oozbaa',
this means to conquer, to complete, to accomplish, to succeed, as I sit
before you I am ready to conquer, accomplish, and succeed with this
challenge. In addition, there are thousands of other Yik'oozbaa' back
home in Utah Navajo who are ready to conquer, accomplish, and succeed
in investing in their communities.
Thank you Mr. Chairman and distinguished committee members, for the
opportunity to work with each one of you on this historical moment of
guaranteeing independence for my Navajo people in Utah. I am ready to
answer any questions you might have.
______
Mr. Grijalva. For the record, everything in writing is
going to be made part of the record, and so if we could, both
in the response to questions, try to keep it within that five
minute time limit, that would be excellent. Sir?
STATEMENT OF MARK MARYBOY, MONTEZUMA CREEK, UTAH, ON H.R. 4384
Mr. Maryboy. Thank you.
Mr. Chair and Committee Members, I appreciate the
opportunity to present before this very distinguished
Committee. For the sake of time, as you stated, you have my
written statement, so I will make a very brief summary
statement regarding my presentation. First of all, I just
wanted to say that the Utah Navajos are different and unique
from the rest of the Navajos from Arizona and New Mexico. The
Utah Navajos are far north of The Navajo Nation capitol. Many
of The Navajo Nation, the Utah Navajos, were not a part of The
Navajo Nation government at the onset of The Navajo Nation
government. Utah Navajos were always considered foreigners. It
wasn't until a great, great quality of oil and gas was
discovered in Utah, and we have all of a sudden become a part
of The Navajo Nation.
The unfortunate situation with the oil and gas in Utah is
it has been a curse to the Utah Navajos. The Utah Navajos have
been very proud, self-sufficient tribe living along the San
Juan River. The oil companies have basically destroyed their
farming land, their grazing area. Currently, they are the
poorest of the poor. A majority of the revenue that has arrived
from the oil and gas production goes to The Navajo Nation. With
all due respect, I disagree with The Honorable President Joe
Shirley's statement. He talks about government-to-government
consultation. I know that Congressman Matheson has been
relentlessly been in contact with him, but unfortunately, he
has not, the President of The Navajo Nation has not officially
met with any of the Utah chapter regarding this particular
issue.
So the fear from the Utah chapter is this particular
royalty, the 37 and a half percent funding, will disappear and
will never come back to provide goods and services to the Utah
Navajos. I used to be the Chairman of The Navajo Nation Budget
and Finance when I was The Navajo Nation Counsel. Eighty
percent of the revenue goes to administration. Probably less
than five percent of the revenue goes to the Utah side of the
reservation. I must say that since 1933, the 37 and a half
percent has provided tremendous services to the Utah Navajos.
Regardless of that, there are many families that still don't
have running water and electricity in their homes. Recently, we
heard about the news of the Gulf Coast oil spill and people are
appalled by that.
Everywhere in the Nation people are concerned with the oil
leaking out of the ground. But on the Utah side of the Navajo
Reservation we have an oil spill almost every day and The
Navajo Nation EPA does not do very good job in cleaning up
those oil spill. We suffer from noise pollution, air pollution,
water pollution and the likes. For this reason, Mr. Chair,
Committee Members, I beg you that this particular money stays
on the Utah side of the reservation. Certainly, we have the
education, the ability to administer and manage this particular
fund to address the poverty situation, and we believe that
self-determination, decentralization is the key. Privatization,
free enterprise zone. That is what we want to do. We believe
that a welfare state type of assistance does not work, and we
do not want to be drain on the society. We want to be
independent economically. So, in closing, I beg all of you to
support our proposal and to support our congressman,
Congressman Matheson. He has been willing and very supportive
of the Utah Navajos. Thank you very much.
[The prepared statement of Mr. Maryboy follows:]
Statement of Mark Maryboy, Montezuma Creek, Utah, on H.R. 4384
Chairman Rahall and Members of the Committee, I appreciate my
opportunity to provide my testimony to the committee this morning.
First of all, on behalf of the Utah Navajos, I would like to
acknowledge and thank our congressman, Mr. Jim Matheson for his concern
and willingness to help Utah Navajos and keep their trust fund in San
Juan County Utah, as intended in 1933.
Two years ago in June 2008, I presented and provided a testimony
before this committee regarding the Utah Navajo Trust Fund. At this
committee hearing you heard a presentation from me, President Joe
Shirley, and Secretary of the Interior, Ross O. Swimmer.
During my presentation, I recommended that this trust fund be
controlled and administered by the Utah Navajos because. My position at
that time was that, within our Utah Navajo community, we have the
ability manage and administer the fund. President Shirley recommended a
different position which was to have the Navajo Nation manage the trust
fund for the Utah Navajos. The Final presentation was made by the
secretary of the interior. Mr. Swimmer proposed two options. Give the
responsibility to the Navajo Nation, or have the Utah Navajos form a
private non-profit organization to manage the trust.
Since this hearing, the Utah Navajos and Congressman Matheson have
met as chapters and communities regarding these two options. The Utah
Navajos and Mr. Matheson came to an understanding and agreement to go
with the second option, which was to keep the funds in San Juan County.
Chairman Rahall, your staff also traveled to San Juan County Utah
and met with the seven Utah Chapters regarding this matter in the fall
of 2008 and also in early in 2010. During the first visit with the
chapters, most of the chapters preferred to keep the trust fund
administration in San Juan County Utah. This was reiterated during your
staff's second visit this year.
Regarding the current bill being proposed, we have met extensively
with Mr. Matheson's staff and with Chairman Rahall's staff to discuss
the language. Our intent has been to insure that the bill reflects the
wishes of the beneficiaries of the trust fund, the Navajos residing in
San Juan County, which are to directly provide a resource to the people
for their development. Namely to foster economic growth, provide
education, health, and general welfare services to our communities.
Specific to this proposed legislation, the people have expressed a
desire to see the following provisions:
1. The election process must be something the Chapters can
handle on their own familiar terms--the resolution process.
2. A simple majority of Chapters must be required for both the
selection and removal of a non-profit as the trustee. The way
the original bill structures this (super majority/simple
majority) makes me nervous.
3. The non-profit should have the flexibility to either hire
or contract for its administrative functions (CEO/CFO)
4. A non-profit trustee should have the ability, to the
highest degree possible, to operate under its own bylaws.
I respectfully request that these issues be considered and
incorporated in the bill.
With full respect to our leaders from the Navajo Nation we ask for
the trust of this committee. The Utah Navajos were named the
beneficiaries of this trust in 1933, but since that time they have not
been allowed to manage the fund or even to have a voice. This bill
provides an opportunity for Utah Navajos to take on the full
responsibility of managing this resource. We are proud to be a part of
the great Navajo Nation. It is our deepest desire to make a meaningful
contribution to the progress and development of our people. This trust
fund represents a valuable asset, which if managed properly can do
tremendous good. We believe that the Utah Navajos are in the best
position to effectively manage the trust.
Conclusion: The Utah Navajos are happy and excited as we look into
the future. We are anxious to create an entity that provides true
economic and community development. As intended between tribes and
congress in its treaties to foster self determination and self
governance.
Our dream and vision is to develop a non-profit organization that
would work in cooperation with San Juan County, The State of Utah, and
the Navajo Nation, to develop jobs, industry, education, healthcare,
and prosperity. We see clearly the objective of our people. For too
long our economy has been stagnant. We have been deprived of the
resources that exist right beneath our feet. All we ask is for the
chance to grow. By granting the Utah Navajos the privilege of
controlling their own asset, we see a better future for our children
and our grand children. We see a better future for the Navajo Nation as
a result of the contribution we are anxious to make.
Again, I thank you for allowing me the opportunity to present my
testimony. I humbly ask for your support by approving this bill that is
before you.
______
Mr. Grijalva. Thank you, sir. Chairman Joseph Art Sam,
Bridgeport Indian Colony, Bridgeport, California. Sir, welcome.
Mr. Chairman, look forward to your comments.
STATEMENT OF THE HON. JOSEPH ART SAM, CHAIRMAN,
BRIDGEPORT INDIAN COLONY, BRIDGEPORT, CALIFORNIA, ON H.R. 5468
Mr. Sam. Thank you. I am new at this and I am a little bit
nervous, so you may have to bear with me a little bit on it,
but I will work through it. First of all, I just want to thank
the Chairman and the Committee Members for holding this hearing
on H.R. 5468 for legislation that is very important to our
small tribe out in California. First, I want to introduce some
members that are with me here today. We also have an easel
here, which one of them will help sort of demonstrate or
illustrate what we are proposing here. First of all, with us
here is our Vice Chairman, Herb Glaser, standing there. Also,
our legal counsel is present, Patty Marks, who resides here in
Washington, D.C., and attorney Mark Levitan from out in
California, who are all present and they may help with any
questions we may have here regarding this.
With that, I will just get into it. The Bridgeport Indian
Colony is a very small California tribe located in central
eastern California along the eastern Sierra region. The total
enrollment of the tribe is 120 members. We currently have a
reservation land base of 40 acres which is approximately three-
fourths of a mile from the Town of Bridgeport. Like I said, it
is in central eastern California, pretty remote location. The
map there of California shows the actual location. We are very
close to Lake Tahoe and Carson City, Nevada. We received the
40-acre reservation land base in 1974 through legislation that
Congress--the tribe received Federal recognition through the
Indian Reorganization Act in 1976, so we are a pretty recently
recognized tribe in that location.
H.R. 5468 addresses two very important issues to our
reservation, primarily for health care services to our
membership and it also provided health services to the
residents of northern Mono County which are non-Native
residents. Also, it provides land for our tribe for housing and
economic development near the reservation. The first parcel is
a seven and a half acre parcel which is BLM land. It is located
about 30 miles north of our reservation. The tribe in 1984
received small community development block band to construct a
small clinic parcel on that land. We are a member of the
Toiyabe Indian Health Project which is a consortium of Indian
tribes in California on the eastern Sierra region who provides
health care service to the Indian population in that area.
The Toiyabe leased the subject land, the seven and a half
acres, from the Bureau of Land Management in the early 1980s to
provide health care services there, and they also lease the
clinic facility building from our tribe to provide those
services. The original intent of that agreement was that
Toiyabe would provide those services in northern Mono County
and would purchase that land from the Bureau of Land Management
and then in turn transfer that land to our tribe who would
apply to the Bureau of Indian Affairs to have it put into trust
status. For some reason, that never really occurred, and now,
about 30 years later, we are in a situation where the tribe
owns the clinic on BLM lands.
So just recently here, as a part of this legislative
process, the tribe, the Toiyabe Indian Health Project and the
Bureau of Land Management have all agreed that transferring
this land into trust from the BLM to the Bureau of Indian
Affairs would benefit our tribe and resolve this issue, so that
is one of the primary reasons we are pursuing this legislative
land transfer for that parcel of land at Walker. The second
parcel of land is located at Bridgeport, which is adjacent to
our existing 40-acre reservation land, and it consists of 31.86
acres. This is the land the tribe has been trying to acquire
now for about 15 years through the Bureau of Land Management
Federal Land Policy Management Act.
Our existing reservation, first of all, is pretty much
built out. We have very limited space for additional housing
and no space, really, for economic development on the existing
reservation land. If we were able to secure this additional
land that has highway frontage on Highway 182, which is a
north/south small highway, and our intended uses for that land
is to construct, actually, a small community recreation center
and a daycare center attached to that which is surely needed in
our area for both the Indian and non-Indian population.
Mr. Grijalva. Mr. Chairman, I am going to ask you if you
can start wrapping it up so that we can go on to questions.
Mr. Sam. OK.
Mr. Grijalva. Thank you.
Mr. Sam. The Mono County board of supervisors pretty much
supports that. As Representative McKeon reported this morning,
that the tribe has entered into an MOU with the county for
those services for the impacts that our proposed development
would have on the county services. The other issue that I
really wanted to mention here was----
Mr. Grijalva. You need to kind of wrap it up pretty soon,
if you don't mind, sir.
Mr. Sam. OK. Sure. Thank you. We just wanted to mention the
gaming issue because we know it is an issue of concern to some
Committee Members. The tribe has explored gaming in the past
and we have determined that it is not really a viable
opportunity for our tribe due primarily to the location and the
population of the area. The Mono County board of supervisors
basically agreed with that. So, with that, I would like to
thank the Chairman and the Committee for this hearing today. I
would like to thank Representative McKeon for introducing the
bill and his support in the process, and also thank the BLM,
BIA, Mono County and the Committee staff for assisting us to
bring us to this level. So, with that, I would just entertain
any questions that you may have. Thank you.
[The prepared statement of Mr. Sam follows:]
Statement of The Honorable Joseph Art Sam, Chairman,
Bridgeport Indian Colony, on H.R. 5468
My name is Joseph Art Sam, and I am the Chairman of the Bridgeport
Indian Colony. Thank you for holding this hearing concerning H.R. 5468.
I am accompanied today by the Vice-Chairman of our Tribe, Herb Glazer,
and our legal counsel: Patty Marks from here in Washington, D.C. and
Mark Levitan from California.
The Bridgeport Indian Colony is a small federally recognized
California Tribe with 120 members. Our Tribal Government was organized
under the Indian Reorganization Act in 1976, after Congress designated
our 40-acre reservation in 1974. Our reservation is located just
outside the town of Bridgeport, California, on the Eastern side of the
Sierra mountain range. We have attached a map of California (Exhibit A)
which shows the location of our reservation. As you can see, due to
mountains on the East and the West, we are in a geographically remote
area of California. The two closest passes over the Sierra mountains
close for the winter, further isolating our region. The closest
metropolitan areas of any significant size are Carson City and Reno,
Nevada, which are about a 1.5--2 hour drive north.
The two BLM to BIA land transfers authorized by H.R. 5468 address
two issues critical to the Tribe: health care; and additional lands for
housing and economic development.
The first parcel is a 7.5-acre site approximately 30 miles north of
the reservation. You can see the location of the parcel on the map
attached as Exhibit B. In the 1980s, utilizing funds from a Community
Development Block Grant, the Tribe was able to build a small health
clinic on this parcel. The project was orchestrated by the Toiyabe
Indian Health Project, a non-profit consortium of tribes in the Eastern
Sierra which provides health care services to the Native and non-Native
population. Toiyabe leased the parcel from the BLM under the Recreation
and Public Purposes Act, and leased the building from the Tribe. It was
the documented intent of all the parties that after the clinic was
built Toiyabe would purchase the land from the BLM, transfer it to the
Tribe, and the Tribe would request the BIA to accept it into trust for
the benefit of the Tribe. For unknown reasons, this never occurred.
Now, almost 30 years later, the BLM acknowledges that the Tribe owns
the building, but for technical legal reasons BLM is no longer
comfortable with the Tribe obtaining title to the property through this
process. The Tribe, BLM, and Toiyabe have mutually agreed that a
Congressional transfer of the parcel from the BLM to the BIA, to be
held in trust for the Tribe, is the most efficient way to resolve our
situation.
Toiyabe closed the clinic in 2006 for lack of funding. The Tribe
and Toiyabe are committed to reopening the clinic; and both the Native
and non-Native population have expressed that they miss the clinic and
feel its presence is important to the area. It is our hope that
maintaining the clinic on trust land will help Toiyabe and the Tribe to
obtain additional funding to reopen the clinic and keep it open. In the
process of preparing the legislation, the BLM State office decided to
redraw the parcel boundaries slightly to clarify the boundaries of the
parcel and to make the legal description simpler by using aliquot
parts. Following their approach, the parcel boundary described in the
legislation just encompasses the clinic and its parking area, and does
not include additional lands.
The second parcel is located adjacent to the Tribe's reservation.
As you can see on the aerial photograph attached as Exhibit C, this
parcel of BLM land sits in-between the Tribe's 40-acre reservation and
Highway 182. The Tribe's current reservation is the shaded orange area,
and the adjacent parcel has red lines across it. Highway 182 is a
small, two-lane highway which connects Bridgeport to Hawthorne, Nevada.
Note that the main thoroughfare through Bridgeport is Highway 395,
about seven-tenths of a mile to the south. We've also included a
ground-level photograph of the parcel attached as Exhibit D, which
gives you a better idea of the rural nature of the area. The adjacent
parcel is in the foreground, covered simply with sage brush. The
collection of buildings in the middle of the photograph is the town of
Bridgeport, and the mountains in the background are the Sierras as seen
from the east.
The Tribe has been trying to acquire this parcel from the BLM for
over 15 years. The current reservation is completely built out, and we
still have additional housing needs for our population. There is also
no space on our current reservation for any economic development
projects. It is the goal of our Tribe to become self-sufficient and
self-reliant as a government, and we know that economic development is
the only option for us to reach that goal. If this land can be
acquired, we plan to build an RV park, gas station and convenience
store, a recreation center open to the Native and non-Native population
of the area, as well as additional residential housing for Tribal
members. Most of our on-reservation members currently receive public
assistance, and the majority of the remainder of our Tribal members are
lower income. We are in desperate need of both jobs and additional
sources of income.
We have entered into a binding MOU with the County of Mono to
address the off-reservation impacts of the development of this parcel,
and we have the strong support of the Board of Supervisors. We have
attached a copy of the executed MOU as Exhibit E, and a letter from the
County Administrative Officer expressing the County's strong support
for the bill as Exhibit F. The economy of the town of Bridgeport has
suffered significantly in the past few years, with many businesses
closing and even more being put up for sale, and the County hopes that
the Tribe's development of the adjacent parcel will serve as a local
economic stimulus.
The Tribe went through a Federal Land Policy Management Act (FLPMA)
land sale process with the BLM to obtain this parcel. After numerous
delays, and a decision to sell the Right of Way on the parcel for
Highway 182 to Caltrans directly in fee, the BLM decided to sell the
parcel to the Tribe in 2005. The decision was protested and appealed by
some non-Native Bridgeport residents, and on May 28, 2009, the Interior
Board of Land Appeals issued a decision which generally upheld the land
sale, but which remanded the decision back to the BLM to clear up a few
technical issues. The BLM has addressed the technical issues and they
have assured us that they will make those findings available to the
Committee as part of the record of this bill.
When the Tribe realized that its acquisition of the health clinic
parcel would necessitate Congressional action, we decided that it would
be most beneficial to include the adjacent parcel in our request as
well. To be honest, our main incentive was financial. When we set out
to purchase the adjacent parcel from the BLM the sale price was
estimated at approximately $50,000. During the long delay caused by the
IBLA appeal, the BLM reappraised the parcel and determined that the
sale price will now be over $250,000. Our Tribe has been fortunate to
receive distributions from the California Revenue Sharing Trust Fund,
and we have been setting aside funds to use as seed money for economic
development. But if we were forced to pay $250,000 for this parcel, it
would significantly impact our ability to develop projects to benefit
the Tribe.
Finally, I would like to address the gaming issue straight on,
because I know it is an issue of concern to many of your Committee
Members. Our Tribe has investigated gaming as an economic development
option, and we have come to the conclusion that we do not have a viable
location for a casino. Our Tribe will only continue to receive
distributions from the Revenue Sharing Trust Fund as long as we remain
a non-gaming tribe pursuant to the definition in the California 1999
gaming compacts. It would not make sense for us to develop our own
gaming facility, because the population of our region simply would not
support it. As I mentioned earlier, the closest metropolitan area of
any significant size is Carson City and Reno, Nevada, located 1.5--2
hours north; there are of course plenty of gaming options in the Reno
area already. According to the last Census, the population of Mono
County is under 13,000. The population of the town of Bridgeport is not
measured by the census, but the County estimates the population is
approximately 800. To the east and west we are bordered by mountain
ranges. To the south one has to travel all the way to Victorville (the
northernmost suburbs of Los Angeles), approximately 5 hours away, to
reach any significant population.
Given our location, we understand why some Members may ask why the
Tribe has not proposed language which would prohibit gaming on these
parcels, as some other tribes have done recently, and avoid any debate
over the issue. With respect, we submit that the Indian Gaming
Regulatory Act was passed in part to benefit tribes, and we do not
believe we should be excluded from the rights that Act designates for
us. We do not know how the demographics of our region or gaming may
change over the next 20 years or 50 years, and we do not want to give
away the rights of our children and grandchildren. Also, it appears
from our research that a majority of the tribes that have agreed to
such language for Congressional land transfers were already operating
casinos on their existing lands, which we submit is not an analogous
situation.
In our recent negotiations with the County of Mono Board of
Supervisors for the MOU, many members of the public encouraged their
representatives to address casino development, but after listening to
the Tribe's perspective, the County did not insist that the MOU
specifically prohibit or address gaming in any way. We request that
Congress take its cue from the local government in this regard.
We've attached as Exhibit G excerpts from the Mono County Board of
Supervisors meeting at which they voted on whether to support the
Tribe's efforts. The Supervisor at the time for the area of the County
where the reservation sits was Bill Reid. The excerpts from the meeting
are all quotes from Supervisor Reid, as he spoke powerfully in support
of the proposed Congressional land transfer, and eloquently addressed
both the gaming and the local economy issues. Unfortunately Supervisor
Reid passed away that very night after the meeting, and his work had to
be taken up by the other Supervisors. We are profoundly grateful to
Supervisor Reid for his support and believe that his efforts helped to
redirect the relationship between the Tribe and the County into a
positive area.
After H.R. 5468 was introduced, we reviewed the legal property
descriptions with the BLM State Office, and there are some minor
changes to the bill language that our legal counsel believe should be
made. On page 5, line 20 (Section 3(b)(1), the paragraph should end
after ``more or less,'' and the remainder of the paragraph, ``as
identified on the map titled ``Bridgeport Camp Antelope Parcel''''
should be deleted. On page 5, line 22, Section (3)(b)(2) should be
revised in its entirety, and should read: ``Lots 1 and 2 of the
Dependent Resurvey and Metes-and-Bounds Survey of Township 5 North,
Range 25 East, of the Mount Diablo Meridian, California, as approved by
the Chief Cadastral Surveyor of California, Lance J. Biby, February 21,
2003.''
In closing, on behalf of our Tribe I would like to thank you Mr.
Chairman, and the Committee, for taking the time to consider this land
transfer. Thank you also to our Congressman, Representative McKeon, for
introducing this bill and for his strong support of the Tribe's
efforts. Finally, I would like to thank the BLM, the BIA, the County of
Mono Board of Supervisors, and the Committee staff for all of their
assistance in helping our Tribe to reach this point. I hope I have
provided the Committee with the information you need to report this
bill to the House floor in the near future. I look forward to answering
any questions you may have.
______
Mr. Grijalva. Thank you. Mr. Chairman, I really don't have
any questions for you. I think Congressman McKeon's legislation
is fair, it is balanced and the stipulation that some people be
concerned with regarding gaming on the acquired land, you have
dealt with that, and so I really don't have any question. I
don't see where opposition would be to it. So, well, thank you
very much, and congratulate the Congressman. It is a good piece
of legislation. Thank you.
Mr. Sam. Thank you very much. We appreciate your support.
Mr. Grijalva. Let me welcome Mr. Matheson's bill.
Discretion not being the better part of valor in this issue.
President Shirley, you mentioned the special trustee and the
recommendation. Could you elaborate on that point? You said
that the recommendation was that The Navajo Nation be the
beneficiary and the trustee. Could you elaborate on that?
Mr. Shirley. Just the Office of Special Trustee in the
guise of a Mr. Ralph Schwimmer gave testimony I believe back in
2008 saying that The Navajo Nation as a nation should be the
trustee of these funds that we are talking about. I believe he
has left since then. I believe the acting person is of like
mind.
Mr. Grijalva. Yes. Maybe for Ms. Chee and Mr. Maryboy, it
is my understanding, and correct me as I go along, that the
State of Utah and the Federal Government do not want to be the
trustee in this issue, and your opposition to The Navajo Nation
as a whole being the trustee is noted in your testimony. So if
we are down to those kinds of alternatives and we have Mr.
Matheson's bill that creates a whole other process of entity,
wouldn't it be simpler to have The Navajo Nation as a whole be
the trustee with stipulated receivership in terms of resources
for the Utah Navajo chapter that you represent?
Mr. Maryboy. Let me very quickly respond to your statement.
Let me make clarification on the testimony provided by
Secretary of the Interior Ralph Schwimmer. He recommended two
solution. One was have Navajo Nation be the trustee, the other
one was a nonprofit organization, so the Utah Navajos chose
option number two that was to run its own trust fund. Now,
going to your question, the reason why----
Mr. Grijalva. Let me follow up on that. Thank you.
Mr. Maryboy. OK.
Mr. Grijalva. Let me follow up on that. You have the Senate
version that has the nonprofit entity status, you have Mr.
Matheson's legislation that has the election percentage status
in it.
Mr. Maryboy. Yes, sir.
Mr. Grijalva. Where do you stand on those two?
Mr. Maryboy. We support the legislation proposed by Senator
Bennett and also Congressman Matheson. Your staff came to the
Utah side of the reservation twice last year and earlier this
year working on the particular legislation and all of the Utah
chapters met on the legislation, had numerous discussion and
ended up supporting the documentation that you have on the
Floor at this time.
Mr. Grijalva. Thank you. I needed that clarification. I
appreciate it. I don't have any other questions. Mr. Hastings?
Mr. Hastings. Thank you, Mr. Chairman. Let me be kind of a
Devil's advocate here, and the question that I would have would
be to President Shirley, and Dr. Slowman-Chee and Mr. Maryboy.
Treaty rights are a relationship between Indian Country and the
Federal Government. Obviously you knew that Congressman
Matheson made that observation when he was in his testimony by
entering at least into the discussion a relationship between
Indian Country and a state, in this case Utah, and of course
what he is seeking to rectify in this recognizes at least the
Utah part of The Navajo Nation. Now, I don't know the answer to
this, but does this raise conflicts, issues with the historic
relationship between tribal governments and the Federal
Government in the future that we should be aware of? Are you
following what I am saying here? I am just asking for
observations because I certainly don't know the answer because
this is unique, but I would invite all three of you to respond
to that observation, if you would. President Shirley?
Mr. Shirley. Certainly, Congressman Hastings, I agree that
I think it creates a conflict. Certainly in my testimony I had
said that this is a nation thing, it is not a chapter thing,
which is a political subunit that The Navajo Nation--we have
110 political subunits we call chapters, and there are seven
chapters within the Utah portion of Navajo land. It is an in
house thing regarding the Utah Navajo Trust Fund, you know,
between The Navajo Nation and each chapters. Between the
Federal Government and The Navajo Nation, it is a Nation-to-
Nation thing. It is a nation to, you know, the U.S. Government
to The Navajo Nation. A government-to-government issue. Back
home it is an in house and a local issue, and that is where it
should be.
I believe that the Utah Navajos are not apart, are not
separate from The Navajo Nation. It is The Navajo Nation. They
are very much a part of it. They have representation on the
legislature, they have access to the presidency. The presidency
goes out there. If this legislation were to be had, if it were
to be wrought, the U.S. Government will come between a nation
and part of its people and that is going to create conflict and
that is not good because, like I said, the U.S. Government has
a Naation-to-Nation and a government-to-government
responsibility, not U.S. Government to a chapter of a political
subunit. Not that. That is where The Navajo Nation has
responsibility, and that is where we want to have it.
Mr. Hastings. Dr. Slowman-Chee?
Dr. Slowman-Chee. In my speculation, no, there is not a
conflict. It clearly states in the 1933 legislation that the
State of Utah would oversee the funds and for the general
welfare of the Navajo people residing in Utah. Also, the Bureau
of Indian Affairs has also given two options. One option is, as
Mr. Maryboy stated, The Navajo Nation become the trustee, or
second, that nonprofit organization becomes the trustee.
Furthermore, the visits that we have been making to the seven
chapters in Utah, it is very clear and strong in unity that the
Navajo people in Utah, that it is their choice to say we want
the nonprofit status to manage these funds. I do not see how it
could be a problem, especially when we can partnership with The
Navajo Nation, we can, through cooperation, match funds with
various projects that need to be taken care of in Utah. Thank
you.
Mr. Hastings. Mr. Maryboy?
Mr. Maryboy. You have to understand that Navajo Nation is
huge. About the size of West Virginia. Three hundred thousand
people and 88 council members. There were only two members of
the council from Utah, and I was one of them for 16 years.
Recently, The Navajo Nation has reduced its council from 88 to
24. When I was on the 88 council, I was strong advocate for the
Utah Navajos. I fought the council for the people. I am afraid
that with this 24 members there is going to be virtually no
representation from the Utah side of the reservation. The
Navajo Nation government is not really stable at this point in
time.
The legislative branch tends to do whatever they want, and
we believe that if this funding should go to The Navajo Nation,
it will probably go to some organizations besides the Utah
Navajos. That is the biggest concern that the Utah Navajos. In
fact, President Shirley was fired by The Navajo Nation council
this year. He had to sue the council, and fortunately, The
Navajo Nation Supreme Court ruled in his favor to come back and
serve the people. So the fear from the Utah side of the
reservation is there is uncertainty, instability within the
government to handle this trust fund. The other thing that is
going on is decentralization. As I stated, Utah Navajos are
probably the poorest of the poor and they feel that this
funding is the only source, the only way to move out of
poverty. They value education as the number one priority. Dr.
Slowman and I have used the trust fund to attend university.
Mr. Hastings. Mr. Maryboy, I am over my time. I appreciate
the response of all three of you, and I understand that in any
government there may be some differences of opinion. Heaven
knows there is a difference of opinion in the Federal
Government, so that is something that is probably the price we
pay when we have self-government. My issue was, and I look more
forward if you would like to respond to me, more the
distinction that you have a Navajo Nation recognized by the
Federal Government and you have a distinction in this case of a
dividing line, demarcation by state lines. I just don't know
the consequences of that in the long term, and that is my
reason for the question. So if you would like to elaborate on
that to all the Members of the Committee, I am sure we would
appreciate that. With that, Mr. Chairman, thank you for your
indulgence.
Mr. Maryboy. Can I very quickly respond to that?
Mr. Grijalva. Mr. Lujan, any questions? Comments?
Mr. Lujan. Mr. Chairman, I give the gentleman a short
chance to respond.
Mr. Grijalva. Thank you. Sure. Sir?
Mr. Maryboy. When I was a member of The Navajo Nation
council, I created a commission. It is called the Utah Navajo
Commission. That was designed to address all the issues on the
Utah side of the reservation. Unfortunately, what happened was
more and more Arizona delegates got on that commission, and
pretty soon that commission became the voice of Arizona rather
than the Utah Navajos. So you might say that I have tried that,
trying to create an agency, but never got the support from the
executive branch from The Navajo Nation in doing that.
Mr. Lujan. I have a few questions, Mr. Chairman, on the
technical side of things and anyone that may be able to provide
information along these lines, or, Mr. Chairman, if we need to
just get additional information. How much is yielded at the 100
percent level, and how much money are we talking about at the
37 and a half percent?
Mr. Shirley. We are talking about approximately $20 million
at this point in time. Five million a year, approximately. Let
me explain. The 37 and a half percent in the past has gone to
Utah on behalf of the Utah Navajos. Sixty-two and a half
percent has gone to The Navajo Nation. This is in the Aneth
Extension. Everything outside of the Aneth Extension, 100
percent of the royalty goes to The Navajo Nation, so
approximately on an annual basis Navajo Nation receives a
little bit over $40 million a year from the Utah side of the
reservation.
Mr. Lujan. So the money is collected by the State of Utah,
Mr. President?
Mr. Shirley. The Navajo Nation collects those monies. The
monies go to The Navajo Nation as a government, as a nation,
and then from there it is distributed, you know, 37 and a half
percent to Utah for them to administer their trust
responsibility.
Mr. Lujan. So, Mr. President, it sounds like there is a
fund created that the Nation administers where 100 percent of
the revenue is collected and then at that point there is a
distribution of 37 and a half percent to the State of Utah to
manage which is kept separately for the Utah Navajo.
Mr. Shirley. The 62 and a half percent is for all Navajos,
including Utah Navajos, Navajos living in the State of Utah. So
they get more than the 37. At 37 and a half percent in reality,
in truth. See? See, not the whole truth is being said here.
Just like, for instance, the biggest chapter in the State of
Utah, Aneth Chapter, is not in support of this legislation. I
don't know why they were not invited. Maybe that is the reason
why they were not invited, so they could say that, because they
would say that. The biggest chapter, and where all the
resources, where all the monies are had for this trust fund is
not in support of this legislation. They are in support of The
Navajo Nation being trustee.
Mr. Lujan. To any of the panelists, is there a process? How
are the revenues measured? How are we getting an accurate
accounting based on the production of oil and gas on the
nation? How is it determined what is being paid in royalty to
The Navajo Nation?
Mr. Maryboy. As Mr. President stated, The Navajo Nation,
mineral resource is in charge of observing the well heads to
ensure that the exact amount of revenue is given to the State
of Utah and Arizona, but for the record, let me state that the
Utah Navajos had to sue The Navajo Nation for not paying each
portion of the revenues five years ago, and the revenue was
something like $5 million. Then, I just wanted to make
clarification about Mr. President's statement, Aneth Chapter
being the largest chapter on the Utah side of the reservation,
which is true. I was their council delegate for 16 years, their
county commissioner for 16 years, so I have served that chapter
for 32 years, and they pass a resolution supporting this
endeavor. However, recently, a family from Aneth, which is
comprised of about 100 people, claiming that this particular
money belongs to them, and that is the issue that Mr. President
is talking about.
Mr. Lujan. Thank you. Mr. Chairman, I see that my time has
expired. I would only say, Mr. Chairman, I think that that is
good information to include in here, and also just the
recognition of the Treaty of Guadalupe Hidalgo which took us
back to some of the decisions and the importance therein which
may come up in some future legislation, Mr. Chairman. Thank you
very much.
Mr. Grijalva. Thank you very much. Let me thank the
witnesses, and just a brief comment. Mr. McKeon's bill, I
believe that it is a good piece of legislation, as I told you,
Chairman, and look forward to working with the Congressman to
expedite it. Mr. Matheson's bill, I think Mr. Hastings asked
for what I was trying to ask and that is the crux of a lot of
this discussion on this legislation. We will work with Mr.
Matheson, but I think there is some fundamental precedence that
could be set, and there are some fundamental issues that need
to be resolved about government-to-government relationships,
and so we will work with him and also with the Senate version.
Nothing more to be said on that. The RESPECT Act. We are going
to expedite the discussions with the Administration. We think
it is a good piece of legislation and enjoys tremendous
bipartisan support in the House and with interest from Senators
on the other side of this hearing, so we are going to keep
moving this legislation forward. We are going to meet with
Interior, deal with their concerns, but the fundamental issue
of a procedure codified and a fundamental issue of judicial
review, while discussable, are not necessarily negotiable. So,
with that, let me thank everybody and adjourn the meeting.
[Whereupon, at 12:24 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows:]
[The prepared statement of Mrs. Napolitano follows:]
Statement of The Honorable Grace Napolitano, a Representative in
Congress from the State of California, on H.R. 5023
I would like to thank Chairman Rahall for this hearing on H.R. 5023
and the witnesses for their cooperation and testimony. We must continue
to honor our first Americans as they are the pioneers of our country.
For decades, tribes have had to endure many hardships. They have
struggled long enough to preserve their land, their identity,
traditions, proper health care, businesses and education.
H.R. 5023, the RESPECT Act, recognizes the importance of honoring
our government-to-government relationship with tribal communities. It
will enable a more involved process in consulting tribes, on issues
that directly affects their native nations. I am also aware that this
legislation will not only affect tribes, but it also affects other
stakeholders, from a local, state and federal level.
As the Chair of the W&P Subcommittee, we work with many different
constituents; from tribes, water districts, irrigators, power customers
and environmental groups. In the West, we have seen the importance of
collaboration from different stakeholders to deal with our water
challenges.
Because of the importance of this legislation, I want reach out to
our constituents in a collaborative manner to understand the possible
effects on all water and power stakeholders.
I look forward to hearing about proper consultations with the
tribes and how early involvement in the planning process of all
activities will affect tribal nations.
This is a strong new beginning for the tribes, but one that is long
overdue. I would like to thank the witnesses and Chairman Rahall again
for convening this important hearing.