[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
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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.

                                 
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