[Senate Hearing 111-542]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-542
 
 WHERE'S THE TRUSTEE? U.S. DEPARTMENT OF THE INTERIOR BACKLOGS PREVENT 
                     TRIBES FROM USING THEIR LANDS

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



                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            DECEMBER 9, 2009

                               __________

         Printed for the use of the Committee on Indian Affairs




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                      COMMITTEE ON INDIAN AFFAIRS

                BYRON L. DORGAN, North Dakota, Chairman
                 JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            LISA MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii              TOM COBURN, M.D., Oklahoma
TIM JOHNSON, South Dakota            MIKE CRAPO, Idaho
MARIA CANTWELL, Washington           MIKE JOHANNS, Nebraska
JON TESTER, Montana
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
      Allison C. Binney, Majority Staff Director and Chief Counsel
     David A. Mullon Jr., Minority Staff Director and Chief Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on December 9, 2009.................................     1
Statement of Senator Bennett.....................................     1
Statement of Senator Dorgan......................................     1
Statement of Senator Franken.....................................    10
Statement of Senator Tester......................................    11
Statement of Senator Udall.......................................     8

                               Witnesses

Artman, Carl J., Professor of Practice, Sandra Day O'Connor 
  College of Law, Arizona State University.......................    18
    Prepared statement...........................................    21
Bailey, Hon. Derek, Chairman, Grand Traverse Band of Ottawa and 
  Chippewa Indians...............................................    24
    Prepared statement...........................................    26
Skibine, George, Acting Principal Deputy Assistant Secretary for 
  Indian Affairs, U.S. Department of the Interior; accompanied by 
  Vicki Forrest, Deputy Bureau Director for Trust Services.......     2
    Prepared statement...........................................     4

                                Appendix

Box, Hon. Matthew J., Chairman, Southern Ute Indian Tribal 
  Council, prepared statement with attachments...................    56
Fink, Hon. Elaine, Chairperson, North Fork Rancheria of Mono 
  Indians of California, prepared statement......................    53
Finley, Hon. Michael, Chairman, Confederated Tribes of the 
  Colville Reservation, prepared statement.......................    64
Intertribal Monitoring Association on Indian Trust Funds (ITMA), 
  prepared statement.............................................    54
Nelson, Glenda, Chairperson, Estom Yumeka Maidu of the Enterprise 
  Rancheria of California, prepared statement....................    53
Pigsley, Hon. Delores, Chairman, Confederated Tribes of Siletz 
  Indians of Oregon, prepared statement with attachments.........    37


 WHERE'S THE TRUSTEE? U.S. DEPARTMENT OF THE INTERIOR BACKLOGS PREVENT 
                     TRIBES FROM USING THEIR LANDS

                              ----------                              


                      WEDNESDAY, DECEMBER 9, 2009


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 o'clock a.m. 
in room 628, Dirksen Senate Office Building, Hon. Byron L. 
Dorgan, 
Chairman of the Committee, presiding.

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

    The Chairman. The Committee will now turn to another 
subject for today, and that is the subject of the Department of 
the Interior backlog that has existed that prevents tribes from 
being able to use their lands and take lands into trust and 
various things.
    I want to make a comment that I have been asked to go to 
the White House. I believe I have to leave here about 10:25 for 
a meeting with the President on jobs, the jobs initiative. And 
I have asked whether Senator Udall would be willing to chair 
the remainder of the hearing when I have to leave in about 25 
minutes.
    This next topic will examine backlogs at the Department of 
the Interior in processing land transactions. These are very 
important issues. Land holds a very great spiritual and 
cultural significance to Indian tribes. The tribal land base is 
the necessary building block for tribal governments to provide 
housing, economic development, and other essential government 
services to its citizens.
    In the last session of Congress, we held two hearings on 
the backlogs at the Department of the Interior. Between the 
first and second hearing, the Department showed the Committee 
some measure of progress. However, we now have a new Assistant 
Secretary who faces those same backlogs and it seems to me that 
we are close to being back to square one.
    Throughout the years, we have heard from many, many tribes 
about the impacts that delays in decision-making at the 
Department have on their ability to govern. We have heard that 
applications for trust lands, for lease approvals, for 
appraisals will languish for many, many years, then years old 
applications are returned by the Department because the 
information is stale.
    At the Committee's hearing in 2007, we heard from the 
Standing Rock Sioux Tribe who told us about their pending trust 
land applications. At the time, the tribe's pending 
applications had been pending for up to a decade or more. 
Today, more than two years later, the situation at the Standing 
Rock Reservation has not changed, according to the Standing 
Rock tribal officials.
    Of the tribe's 11 pending applications, two have been 
pending for more than 10 years and the others have been pending 
for over five years. Some of the applications the tribe 
submitted are not listed as pending because they are not yet 
logged into the system. At the same time, these applications 
haven't been returned to the tribe for more information. They 
just remain in limbo with no action.
    The same problem exists for pending environmental impact 
statements which can cost tribes close to $1 million to 
complete. If they are not reviewed in time, a tribe may have to 
start all over and submit an impact statement, spend another 
large sum to complete the impact statement, and possibly cost 
the tribe a lot of money that they need for economic 
development.
    This isn't a new issue, but it is one that this Committee's 
been looking for the Department to make progress on. We are 
looking for a plan to deal with the land backlogs and come up 
with a way for the Bureau to better communicate with the tribes 
so that they can be aware of the status of their applications. 
It is not acceptable to have applications sit on a desk for 10 
years with no action.
    Last Congress, we pushed and will continue to push this 
Congress to monitor the status of these backlogs at the 
Department. And we are going to hold another hearing in six 
months to find out what has been done in the last six months.
    So with that, I want to welcome Mr. Skibine, Acting 
Principal Deputy Assistant Secretary for Indian Affairs, 
accompanied by Vicki Forrest, the Deputy Bureau Director for 
Trust Services, as panel one.
    We will proceed with your testimony, Mr. Skibine.

         STATEMENT OF GEORGE SKIBINE, ACTING PRINCIPAL 
DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS, U.S. DEPARTMENT 
 OF THE INTERIOR; ACCOMPANIED BY VICKI FORREST, DEPUTY BUREAU 
                      DIRECTOR FOR TRUST 
                            SERVICES

    Mr. Skibine. Thank you, Mr. Chairman. Good morning, Senator 
Udall and Senator Franken. I am pleased to be here to present 
the testimony of the Department on the hearing entitled Where's 
the Trustee? Department of the Interior Backlogs Prevent Tribes 
from Using Their Land.
    Accompanying me today is Vicki Forrest, who is the Deputy 
Bureau Director for Trust Services.
    My testimony will be made part of the record. What it 
includes is updates on all the issues that were discussed in 
the previous two hearings, including where we are on probate, 
where we are on trust land acquisitions for non-gaming 
purposes, where we are on environmental impact statements, 
where we are on appraisals, and where we are on lease 
approvals.
    One of the things that I witnessed over the past eight 
years, and it is not necessarily why we are where we are today, 
but before Carl Artman became Assistant Secretary for Indian 
Affairs, before that under the Bush Administration, essentially 
what I witnessed is that trust acquisitions were not a priority 
for the Department. In fact, even though there was nothing 
written, essentially what the Regional Directors were told was 
that acquisition of land in trust for tribes should be the 
least of your priorities.
    So with that, those marching orders, I think that it is no 
wonder that to a certain degree before Carl Artman came on and 
essentially reversed course on that, there was a failure from 
our Bureau to move in that direction.
    And the reason for that, I think, was at the time of Cobell 
the Administration essentially thought, well, we have the 
Cobell, the trust fund litigation. We have now almost 100 
lawsuits, tribal trust lawsuits challenging the BIA on 
mismanagement of trust resources. Why on Earth would we acquire 
more land into trust if we can't even manage what we have now?
    And so with that, there was essentially, certainly not a 
priority, in fact, to take land into trust. So to take land 
into trust for individuals was totally stopped at the time. And 
off-reservation acquisitions were sent to central office for 
review, where essentially they sat there. And I think before 
Mr. Artman came on board, maybe one in six years had been 
approved.
    In addition, there was at the time a move, I remember, from 
the Administration to sort of dissuade tribes from taking land 
into trust because they said it would not actually help 
economic development, but hinder it. And the thinking there was 
that you cannot leverage land if it is in trust because there 
can be no encumbrances on the land.
    What I am here today to say is that when Larry Echo Hawk 
came on board, essentially things changed completely in terms 
of the Administration's overall priority. And the taking land 
into trust for Indian tribes is now one of the Assistant 
Secretary's major priorities, in addition to education, law 
enforcement, and energy development.
    And with that, I think that the marching orders to the 
Bureau of Indian Affairs will be to essentially make sure that 
this program becomes one of the priorities that we have.
    And with that, I think I will say that this is kind of one 
of the few things that we have looked at. Under Ms. Forrest's 
direction, we have published a fee to trust handbook which is 
something that we are doing in consultation with tribes to help 
facilitate the process and make it more transparent. We have 
re-delegated the authority to take non-gaming off-reservation 
land into trust to the Regional Directors.
    I recommended that move to the Assistant Secretary after I 
testified on the House side on some bills on Northwestern 
tribes, where what they were trying to do is bypass central 
office review of their off-reservation acquisitions because of 
the fact that they were not going anywhere.
    And even though we are, this was no longer a backlog, we 
took a look at why there was central office review of non-
gaming applications for off-reservation, and we felt that there 
was really no point in doing that. So we have sent this back to 
the regional offices, and in that sense it will cut off some of 
the time it takes to process these applications.
    The other thing we are doing is, what we could do is 
essentially look at our regulations, 25 CFR Part 151. Now, that 
is a very touchy subject. I think, for instance, I remember 
Carl Artman wanted to look at possibly reopening 151, but the 
National Congress of American Indians and Indian tribes in 
general were very opposed to that.
    But we are well aware that in the 151 regulations, there 
are no deadlines placed on the Department. And one of the 
issues that came up when Kevin Gover was trying to revise the 
151 regulations in the late 1990s was that tribes complained 
about this lack of deadline. I think we tried to include it in 
those regs. Those regs were essentially finalized, but pulled 
by the Bush Administration when they came into power.
    Another thing we are of course looking at, and which is not 
necessarily a big issue, is the fact that the Carcieri decision 
came down in February of last year. We, of course, as Del 
Laverdure, our Deputy Assistant Secretary, testified on the 
House side, support a Carcieri fix to amend the Indian 
Reorganization Act. And so we are all on board on that, and we 
think that will certainly avoid some potential backlogs and 
lawsuits that may be generated in some cases.
    And that said, I think that one, of course, of the things 
we would like to say that is as we take land into trust, it is 
of course important to have the resources to manage those 
lands, especially the lands under these trust resources. So we 
will take a look at that.
    And with that, I would like Ms. Forrest to tell us a little 
bit about what is it that she has been doing at the direction 
of the Bureau Director, Jerry Gidner, who has the 
responsibility for essentially improving the process and what 
other things we are looking at in order to make the system work 
better.
    Vicki?
    [The prepared statement of Mr. Skibine follows:]

Prepared Statement of George Skibine, Acting Principal Deputy Assistant 
     Secretary for Indian Affairs, U.S. Department of the Interior
    Good morning Mr. Chairman, Vice Chairman, and members of the 
Committee. Thank you for the opportunity to provide the Department of 
the Interior's (Department) update on the current status of backlogs in 
Indian Affairs. As you know, the Department provided updates on 
``backlogs'' previously on October 4, 2007, and on May 22, 2008 in 
oversight hearings on land into trust applications, environmental 
impact statements (EIS), probates, and appraisals. In those testimonies 
provided to this Committee, overviews of each item and the procedures 
that Indian Affairs' follow, as set forth in statute and regulation, 
were included. Therefore, my testimony today will focus on our updates 
on current numbers in probate, land-into-trust acquisitions for non-
gaming purposes, environmental impact statements, appraisals, and 
commercial leases. My testimony will also address a few accomplishments 
since the last hearing in May 2008.
Probate
    In prior testimony we stated there are four phases for the 
completion of a probate case. Using the ProTrac system, BIA monitors 
the performance of each case at each phase all the way through 
distribution of assets to the heirs. These phases are: (1) Pre-Case 
Preparation; (2) Case Preparation; (3) Adjudication; and (4) the 
Closing Process. As of November 20, 2009, the Division of Probate was 
monitoring 71,238 cases, of which 16,099 were currently moving through 
the probate process and 55,139 had been distributed and closed, 
determined to have no trust assets requiring a Federal probate, or 
otherwise required no current Federal action.
    In May 2008 we stated before this Committee that as of April 28, 
2008, 99 percent of the backlog cases completed the case preparation 
phase and were ready for adjudication and distribution of assets, and 
88 percent of the backlog cases had been closed.
    Those percentages we presented in May 2008 were used to demonstrate 
that the BIA was still on track to clear the probate backlog by the end 
of 2008. An independent audit of the probate workload, conducted in 
2009, concluded that probate backlog casework is substantially complete 
and no longer represents a management issue for the BIA.
    We also stated that by this year, 2009, BIA staff should be able to 
handle the probate cases without help from outside contractors. 
Administrative requirements to re-compete the primary probate casework 
contract delayed completion of the Probate Caseload Reduction project. 
Project completion is now anticipated mid-year 2010. Upon successful 
completion, the Division of Probate should be able to handle the 
ongoing probate caseload in a timely fashion without contract 
assistance.
Trust Land Acquisitions for Non-Gaming Purposes
    Significant progress has occurred in processing land-into-trust 
requests. We stated in our May 2008 testimony that we implemented a 
fee-to-trust tracking system.
    Last year we reported that we had received 1,489 requests, \1\ 
including the 215 applications that were prioritized in October 2007. 
As of November 20, 2009, 99 of the priority applications had been 
completed or withdrawn by the applicant and determinations had been 
made on additional 99 applications.
---------------------------------------------------------------------------
    \1\ These applications were either opened after October 10, 2007 or 
were in our possession as of that date and have not yet been completed.
---------------------------------------------------------------------------
    In October 2008, BIA published a Fee-to-Trust handbook. This 
handbook standardized procedures for reviewing and making 
determinations on on-reservation land-into-trust applications. Six 
months later, after meeting with over 100 tribal leaders, Indian 
Affairs removed a major logjam from the process by revoking a standing 
policy requiring applications for off-reservation lands to go through a 
Central Office review. While Central Office continues to provide 
assistance upon request, decision authority for all land-into-trust 
applications has been delegated to the Regional Offices. Applications 
have been returned to the Regional offices with recommendations, and 
the final actions are now taking place at the regional level.
    Currently, we have received a total of 1,935 requests. As a result 
of the standardization and streamlining efforts, 454 of the requests 
have been completed or withdrawn by the application and determinations 
have been made on 342. Seven hundred and sixty four of the pending 
requests are for land located within, or contiguous to, the tribe's 
reservation boundaries and are non-gaming. The remaining requests were 
either submitted by individuals, located off-reservation, or by tribes 
with no historical reservation lands, or were for gaming or gaming-
related purposes.
    However, since February 2009 an additional challenge presented 
itself in the U.S. Supreme Court's decision in Carcieri v. Salazar.
    The Department was, and continues to be, disappointed in the 
Court's decision in the Carcieri case. The decision was not consistent 
with the longstanding policy and practice of the United States to 
assist all tribes in establishing and protecting a land base sufficient 
to allow them to provide for the health, welfare, and safety of tribal 
members, and in treating tribes alike regardless of the date of 
acknowledgment. The Court's decision hinders fulfillment of the United 
States' commitment to supporting Tribes' self-determination by 
clouding--and potentially narrowing--the United States' authority to 
protect lands for tribes by holding the lands in trust on their behalf.
    Furthermore, the Carcieri decision has disrupted the process for 
acquiring land in trust for recognized tribes by imposing new and 
undefined requirements on applications now pending before the 
Secretary. The decision has called into question the Department's 
authority to approve pending applications, as well as the effect of 
such approval, by imposing criteria that have not previously been 
construed or applied.
Environmental Impact Statements (EIS)
    In our October 4, 2007 and May 22, 2008, testimony, we provided 
extensive comments on the National Environmental Policy Act (NEPA) 
environmental review process with a focus on the Environmental Impact 
Statement (EIS) process. As stated in those testimonies, we do not have 
a backlog of EISs. The cases described below are pending applications 
that are currently under review.
    When an Indian tribe submits a request to the BIA to fund, issue a 
permit for, or approve a proposed action requiring a BIA federal 
action, the BIA determines the proper level of NEPA review. For certain 
actions that don't have the potential for significant environmental 
impacts, BIA may issue a Categorical Exclusion (CE) and the NEPA 
process is complete. If the application does not qualify for a CE, an 
Environmental Assessment (EA) must be completed. The EA will lead 
either to a Finding of No Significant Impact (FONSI) or to a 
determination that the effects of the Federal decision may have a 
significant environmental impact and a decision to perform an EIS.
    The length of time necessary to prepare an EIS depends on the 
complexity of the proposed project. The time frame depends on several 
factors. For instance, other agency needs and requirements must be 
taken into consideration. In addition, public comment may point out 
weaknesses in the EIS that require further studies or assessments 
before the Final EIS may be issued. Additional time may be required to 
coordinate and meet other agency needs and requirements on the EIS. 
Delays also occur when the Federal EIS is stalled because the tribe 
alters the project plan or scope.
    The BIA currently has the following pending EIS's: Pacific: 17, 
Northwest: 5, Eastern: 3, Midwest: 1, Navajo: 1, Great Plains: 1, Rocky 
Mountain: 1, Southwest: 1 and Alaska: 0, Western: 0, Eastern Oklahoma: 
0, and Southern Plains: 0.
Appraisals
    In prior testimony, we stated that in FY 2002, pursuant to 
Secretarial Order, the management and operation of the real estate 
appraisal function was transferred from the BIA to the Office of the 
Special Trustee for American Indians (OST). This transfer was conducted 
to eliminate the appearance and potential for a conflict of interest 
that could arise in response due to the reporting structure that 
required appraisers to report to the BIA Regional Directors who were 
requesting the appraisal. In FY 2005, funding for the program likewise 
was transferred to the OST.
    Appraisals are requested by the BIA when required for a trust 
transaction. The BIA issues the appraisal request to the OST Office of 
Appraisal Services (OAS) which conducts the appraisal and returns the 
completed valuation to the BIA for its use. OAS appraisers aim to 
complete appraisals to meet the due dates requested by BIA.
    Currently, OST's OAS has 1,754 appraisal requests pending, of these 
257 are past due. Of the total number pending, approximately 50 percent 
are scheduled for completion by the end of the month. OAS is 
implementing a new tracking system that is scheduled for deployment by 
March 31, 2010. OAS continually evaluates appraisal processes to 
streamline efficiencies while ensuring that valuations comply with the 
Uniform Standards of Professional Appraisal Practice (USPAP).
Lease Approvals
    In May 2008, we made a recommendation based on the fact that 
commercial development leases may involve tribal land, allotted land, 
or both, and those leases were typically negotiated by representatives 
of the parties. As a result, the appraisal needed to establish an 
acceptable ``Minimum Rent'' and the documentation needed to comply with 
NEPA, are often not obtained by the lessee until after the basic lease 
terms have been agreed upon. We continue to recommend that outside 
appraisals be accepted, as an alternative to appraisals performed by 
the Department's Office of Appraisal Services (OAS), and submitted for 
review and approval by the OAS.
    In May 2008, we reported that we had 93 commercial leases pending 
approval. In our twelve Regions, we have three Regions with no 
backlogs: the Southern Plains Region, Eastern Region and the Eastern 
Oklahoma Region. The remaining regions have leases that have been 
pending for over 30 days, as follows: Alaska Region-1, Navajo Region-1, 
Midwest Region-1, Great Plains Region-8, Rocky Mountain Region-8, 
Pacific Region-9, Western Region-19, Northwest Region-22, and the 
Southwest Region-24.
    Currently, we have 69 commercial leases pending approval for 12 
months or longer. Seven regions reported no outstanding commercial 
lease applications: Alaska, Eastern, Midwest, Navajo, Rocky Mountain, 
Southwest and Western. The remaining regions have pending leases as 
follows: Eastern Oklahoma: 1, Great Plains: 1, Pacific: 13, Northwest: 
52, and Southern Plains: 2.
    This concludes my testimony. I will be happy to answer any 
questions the Committee may have. Thank you.

    Ms. Forrest. Thank you.
    Thank you, Mr. Chairman. Thank you, Senator Udall, Senator 
Franken. I am happy to talk about the great accomplishments the 
Bureau has made in the last two years since I have been here on 
the land into trust process.
    As Mr. Skibine mentioned, we issued the fee to trust 
handbook at the direction of Mr. Artman. He placed a high 
priority on that for BIA. It standardized the processes for the 
first time in the history of BIA. In April of this year, we 
held our first annual land into trust dialogue with tribes to 
talk about the usefulness of the handbook with tribes and BIA 
staff. From that, I believe came, because it was a comment from 
many tribes, was the central office review of off-reservation 
applications. So that did decrease a big logjam that was in the 
current process.
    We are also happy to talk about increased communication 
with tribes with BIA staff. We have really encouraged our staff 
to meet regularly with tribes, and in fact, it is my 
understanding at Standing Rock they have a weekly meeting to 
talk about land into trust applications. So we encourage all of 
our staff to continue to do that in order that everyone is 
aware of the process and exactly where the applications are.
    Going forward, as Mr. Skibine mentioned, Mr. Echo Hawk has 
also placed a high priority on land into trust for BIA staff. 
We want to refine that handbook based on the comments that we 
receive from tribal leaders, and we continue to dialogue with 
tribal leaders about that.
    Although that was one meeting in Albuquerque, several 
tribes wanted regional meetings to talk about the use of the 
handbook and the way that we process land into trust 
applications within the current regulations. So I am hoping 
that we get out into, I believe tribes from the Northwest, 
Pacific and Midwest wanted to host those meetings, and I would 
be happy to attend those on behalf of the Bureau. We are also 
reviewing inconsistent policies that we may still have and 
practices that we may still have at the regions currently. So 
we are actively doing that.
    We want to further increase communication with tribes and 
BIA staff to include a web page that is going to have a 
comprehensive informational site for tribes, as well as BIA 
staff about the land into trust process. We are going to 
develop and implement a web-based training for tribes and BIA 
staff, as well as formalize curriculum at our National Indian 
Programs Training Center in Albuquerque, New Mexico. So we are 
very excited about those steps.
    As George mentioned, we also want to develop a framework of 
staffing, training and performance measures that facilitated 
the great success that we saw in our probate backlog. So those 
are some of the steps that we are actively involved in to 
ensure that we have a more effective and efficient process on 
behalf of tribes.
    The Chairman. Thank you very much for your testimony.
    Let me describe just for a moment what has piqued my 
interest about all of this the last few years.
    I was at a tribal visit and they showed me their brand new 
building, a big beautiful building. I think it was two or three 
stories and it was empty. And I said, what is that building? 
Well, that is a building we built for offices, a commercial 
office building. And I said, why is it empty? They said, 
because we can't lease it until we get approval for leasing it 
from the BIA and the request for approval has been there for 
about a year. So the building sits empty for a year. So I am 
thinking to myself, wait a second, what is that about?
    And Standing Rock Reservation applies for the opportunity 
to take some land into trust for a cemetery, and one would 
expect, well, all right, if the tribal government has decided 
they want to take some land into trust for a cemetery, you 
know, within a reasonable period of time, they would get a 
judgment, at least, about that. And my understanding is that I 
think that has been pending between 5 and 10 years.
    So as I look at all of this, we now have, my understanding 
is, according to Department of Interior current data, about 
1,935 total requests, and I am not suggesting that when 
somebody submits something, you all get a big old rubber stamp 
to say ``approved.'' That is not my suggestion at all. I want 
you to look at these things and make good judgments about them.
    But appraisals, for example, according to DOI, we have 
1,754 pending appraisal requests; 254 of them are past due; 50 
percent are scheduled for completion by the end of this month.
    What has occurred that they can now clear 50 percent by the 
end of this month? Is it this hearing? If so, I want the 
process to be a process that doesn't have to be prodded by a 
Senate hearing.
    So all of these things have persuaded me that we need a 
process by which a tribe should not have to expect to wait 5 or 
10 years for somebody to make a judgment. That is like passing 
paper and glue, or perhaps not even glue because some of it is 
lost, as we know. So that is the stimulant for holding this 
hearing.
    I indicated that I have to leave for the White House for a 
meeting on jobs, and I am going to ask at this point Senator 
Udall to take the Chair and proceed. But this is an issue that 
doesn't get a lot of attention, but it is very, very important 
to all the tribes.
    I know Senator Franken will be visiting a tribe in January 
in Minnesota, and it is not related exactly to this issue, but 
he will be seeing, I believe, a building that is empty on that 
Minnesota tribal property, and that is because two Federal 
agencies didn't coordinate what they were doing properly, a 
building that I believe was built for juvenile justice purposes 
and the money doesn't exist to run it.
    It is just frustrating to all of us. We want you to 
succeed. Mr. Skibine, you have testified many times and I give 
you credit for wanting to do the right thing. The question is, 
are we making real progress? Can a tribe that submits a request 
today for trust status or an application, can they reasonably 
expect that in a decent period of time they are going to get a 
response? Or is this going to go into this deep abyss, this 
application never to be heard from again?
    So that is the question, and I am going to call on my 
colleague to come over and take the Chair.
    Senator Udall, thank you very much for being willing to do 
that while I leave for the White House.

                 STATEMENT OF HON. TOM UDALL, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Udall. [Presiding]. Thank you, Senator Dorgan.
    Could you respond to Senator Dorgan and his, I guess, 
question and comments there on what is happening with those 
numbers and where we are headed here?
    It is good to see Senator Tester here, too.
    Mr. Skibine. Okay. I think that the overall response is 
that this is definitely in this Administration under Assistant 
Secretary Larry Echo Hawk, this is certainly not going into a 
black hole where we are going to have a problem with taking 
land into trust. So progress, I think, is directive and under 
his administration, this will change, as it is one of his 
priorities.
    So I can essentially assure you that we will make progress 
in taking land into trust for non-gaming purposes.
    There is no reason for the process to take forever. The 
regulations 151 are fairly simple. That process should be done 
fairly quickly, and really, in terms of getting a decision, it 
should not be an endless process.
    Now, one of the things that does happen is if, even when we 
decide to agree to take land into trust, and we publish a 
notice in the Federal Register, there needs to be no 
encumbrances on the land before it can be taken into trust. And 
sometimes that takes years.
    I remember when I was the Director of the Indian Gaming 
Office, for instance, in 1995, we agreed to take land into 
trust for the White Earth Band of Chippewas, and we published, 
and so we did an approval. And I know that 10 years later, it 
turned out that the land still had not been taken into trust 
because there were liens on the property. So that is one of the 
issues that occurs. But in terms of the process for that, we 
will definitely make progress.
    And in terms of the one issue you raised with appraisals, I 
think that is a function of the Office of Special Trustee, 
which is not part of our office of Indian Affairs. So there 
should be, the Special Trustee should be addressing the issues 
for any backlogs in appraisals.
    Now, if Ms. Forrest can give an update on the figures that 
Senator Udall asked in terms of the progress we have made in 
the past year.
    Ms. Forrest. The way that we currently manage the land into 
trust applications is a system that tells us what applications 
are in the system, the tribe that submitted the application, 
and the status of that application. So we started tracking in 
October of 2007. Since then, we have approved 86,000 acres to 
be taken into trust.
    So what we work with the staff on is, as we look at the 
status of each part of the process, whether it be environmental 
compliance, the public comment period, working with local and 
State governments on any land use issues, jurisdictional 
issues, tax consequences issues, then we provide technical 
assistance in that way.
    Currently, we have, as the Chairman stated, 1,935 requests; 
454 of those have been completed or withdrawn by the 
applicants, and determinations have been made on 342; 764 of 
the pending requests are for land located within or contiguous 
to the tribe's reservation boundaries and are non-gaming. The 
remaining requests were either submitted by individuals or 
located off-reservation by tribes with no historical lands or 
for gaming or non-gaming, or gaming-related purposes, excuse 
me, which my office does not handle. It is just non-gaming 
applications.
    So we continue to monitor the progress of the applications 
and want to increase communication with tribes, encourage our 
staff to do that, train our staff appropriately, have the staff 
available that is devoted to this process.
    So as Mr. Skibine stated, that is one of my highest 
priorities for this year.
    Senator Udall. Ms. Forrest, do you have a time line for 
eliminating the backlog?
    Ms. Forrest. In 2007, what we looked at was some 
prioritized applications, and the way that we did that, because 
I want to be very clear that no tribe has priority over any 
other, what we looked at was the status of the application in 
terms of how far it was to completion. So at that time, we 
prioritized 215 of those, and I am happy to say that 198 of 
those have been brought into trust; 14 of those still require 
some title issues, as Mr. Skibine was talking about, so we work 
with the tribe on those. Two still have environmental 
compliance issues. We continue to work with the tribe on those. 
And then one is at our office for review at the request of the 
regions.
    Although the decision-making ability for non-gaming 
applications, whether they are off-reservation or on-
reservation, are at the regions. If the region requests our 
assistance, then we ask that they send those to central office.
    Senator Udall. Thank you, Ms. Forrest.
    Senator Franken is recognized for questioning.

                 STATEMENT OF HON. AL FRANKEN, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Franken. Mr. Skibine, I just want to clarify 
something for myself here. Basically, what you are saying is 
that this was not a priority until when exactly?
    Mr. Skibine. I think that it was not a priority until Carl 
Artman became Assistant Secretary for Indian Affairs in the 
latter part of the Bush Administration. And I think he 
committed to the tribes that he would begin to change that to 
address their concern, because there was at that point I think 
a lot of dissatisfaction with tribes for the lack of action on 
taking land into trust. And I think Carl is back here 
somewhere, but he became Assistant Secretary in 2006.
    Ms. Forrest. In 2007.
    Mr. Skibine. In 2007. Okay.
    Senator Franken. Okay, so in 2007, it sort of changed?
    Mr. Skibine. Right.
    Senator Franken. Because of him, one guy?
    Mr. Skibine. Well, he needs to get a lot of the credit for 
that because there certainly wasn't much support for that with 
the rest of the Administration.
    Senator Franken. Yes. You know, you have testified here 
before, and we hear a lot about backlogs. Was there some sort 
of lack of attention paid during those Bush years in terms of 
backlogs on things? I mean, were backlogs accumulated during 
those years?
    Mr. Skibine. I think that they probably were. I don't have 
figures with me, but certainly with respect to acquisitions for 
off-reservation, non-gaming off-reservation acquisitions I know 
there was a backlog because for years there were none that were 
essentially approved, and at that time it required central 
office approval and it just stayed there. Maybe one was 
approved, but that was about it.
    Senator Franken. What consideration is given to fast-
tracking stuff? I mean, you were talking about certain 
priorities. But fast-tracking things, things that are easy to 
resolve--is there any consideration to saying let's do 
unobjectionable claims that are easy to do? Let's just do them 
right now?
    Mr. Skibine. I think that, yes, that is one of the things 
that our Assistant Secretary has asked us to look at. So Mr. 
Gidner and Ms. Forrest are going to start looking at that and 
what we can do. We will also probably continue to consult with 
tribes to see what it is that they see we can do to facilitate 
the process.
    The important thing is that the attitude of the 
Administration now is to make this work and to make it work 
better, so that we are anticipating essentially solving some of 
the issues that we have.
    One of the things that we are bound by that is another 
thing that takes a long time is compliance with the National 
Environmental Policy Act. If the tribe intends a change in the 
land use, there needs to be compliance with NEPA, which 
requires either an environmental assessment or an environmental 
impact statement. And I know that, for instance, in the area 
that I know best in gaming, these EIS's take at least a year to 
compile. So that takes a while.
    Senator Franken. So that is an example of one that is less 
easy and less simple. But are there ones that just come to you 
and you say, ``man, we can expedite this right away'' ?
    Mr. Skibine. Yes. If there is no change in land use and 
essentially, there is no objection from the local community, 
there is really no reason for these applications to take long 
at all. And so, it is all delegated to the region. We will 
essentially look into, have our Regional Directors accountable 
to make sure that applications that are submitted are not 
essentially forgotten, since it is a priority of the 
Administration.
    Senator Franken. Okay. Does that seem to come from the top?
    Mr. Skibine. Yes. I think that Secretary Salazar is 
essentially totally on board with this priority.
    Senator Franken. Okay. Thank you very much, Mr. Chairman. 
Thank you.
    Mr. Skibine. Okay.
    Mr. Udall. Thank you, Senator Franken.
    Senator Tester?

                 STATEMENT OF HON. JON TESTER, 
                   U.S. SENATOR FROM MONTANA

    Senator Tester. Well, thank you, Chairman Udall, and that 
sounds pretty good. You will have to see if Byron is willing to 
give that up.
    [Laughter.]
    Senator Tester. Byron does a great job, make no mistake 
about it.
    I need to get educated here just a little bit, and maybe it 
is you, Ms. Forrest, who can do it. Can you tell me, do you 
have the figures telling me what the average backlog was in, 
say, 2006 compared to what the average backlog is today?
    Ms. Forrest. For land into trust applications, Mr. Skibine 
had just been talking about the off-reservation applications 
that we had at Central Office. And during that time, under Mr. 
Artman's direction, we cleared out every one of those. There 
were 42 of those that had been sitting there during the last 
Administration before Mr. Artman got there, and he directed us 
to quickly clear those out and send those back out to the 
region.
    We started tracking fee to trust applications in general in 
October of 2007. So I would have to rely on my experience with 
what was at the office, I have been there for two years, what 
was at the office when I got there, and the priority placed on 
getting those applications, some that had been there for quite 
a long time, back out to the field to be processed and going 
forward. But we started tracking the numbers in October, 2007.
    Senator Tester. Okay. So what is the backlog right now? How 
many days average?
    Ms. Forrest. The backlog for fee to trust for that 
application, we have not defined. We did for probate and we 
have talked about that several times. We can tell you that we 
have pending applications. What I don't have in front of me 
today is how long they have been in the system. That is not one 
of the things that we designed that system to do.
    Senator Tester. Okay. So what are you tracking?
    Ms. Forrest. We are tracking how many applications in the 
system, which tribes are submitting those, what kind of 
applications they are, whether they are off-reservation, on-
reservation.
    Senator Tester. So you are just looking at the sheer 
numbers and determining by that what the backlog is?
    Ms. Forrest. Well, that system was designed to help us work 
with the staff in seeing exactly where the application is and 
moving along the process. That is what we have been using to 
manage the land into trust process with that system.
    Senator Tester. Okay.
    Mr. Skibine. Well, can I say something? This is one of the 
things that we, before this hearing, talked about, and I think 
it is a system that does that. And to me, there is no reason 
why the system cannot be changed to essentially provide the 
date the application is filed, so that we are able to track how 
long they are in the system.
    Ms. Forrest. Absolutely.
    Mr. Skibine. So that is something that we are going to be 
looking at.
    Senator Tester. Could you tell me how many applications are 
we talking about that are pending right now?
    Ms. Forrest. There are 1,935.
    Senator Tester. There are 1,935 that are pending right now. 
Oh, boy. I mean, I don't want to ask you questions you can't 
answer, so I will ask them anyway, I guess. Do you know how 
many of those have come in in the last year?
    Ms. Forrest. I don't. That is one of the system 
enhancements that Mr. Skibine just talked about that we are 
currently making.
    Senator Tester. Okay. That is fine. And this could be to 
either one of you, whoever is best to answer it. How many of 
those applications are dealing with fee land to be put into 
trust?
    Mr. Skibine. I mean, they are all dealing with fee land to 
take into trust.
    Senator Tester. Aren't some of them, are any of them 
dealing with leases, for example?
    Mr. Skibine. Oh, no. That is separate. These are 
essentially all pieces of land that are in fee and that a tribe 
is seeking to place into trust.
    Senator Tester. Okay. And then they aren't the ones where 
they are going to change use on them, those applications?
    Mr. Skibine. No, some of them will.
    Senator Tester. Okay. Isn't that already fee land?
    Mr. Skibine. Excuse me?
    Senator Tester. I mean, isn't that already trust land and 
they are trying to change the use of it?
    Mr. Skibine. No. If it is trust land, the tribe can change 
the use without us having to be involved.
    Senator Tester. Okay. So if you have a piece of Native 
American land that is already part of the reservation, they can 
build an office building on that land and you guys have nothing 
to say about it.
    Mr. Skibine. That is right. Unless it requires, I mean, it 
may require some sort of approval, but, you know, I am not 
aware of, in many cases, it doesn't.
    Senator Tester. Okay. What about land that is already a 
part of the reservation, it is already part of the trust, and 
they want to lease oil underneath it to a developer to try to 
get some of that oil out of the ground to create some royalty? 
Do you have any say on that?
    Mr. Skibine. Yes. And essentially we have to approve leases 
for oil under 25 CFR Part 151.
    Senator Tester. And so the same with natural gas, same with 
coal?
    Mr. Skibine. Right.
    Senator Tester. Same with any kind of mining that might 
happen? Can you give me any idea on how long it takes to get 
those leases through?
    Mr. Skibine. Vicki?
    Ms. Forrest. On commercial, what we brought today, and I 
can get that information for you, I don't have that with me, 
but we do have some numbers on commercial leases. Typically, 
those take a little bit longer because of the complexity of the 
leases.
    Senator Tester. Yes. I don't want to have you spend all 
your time digging out figures for me, but I think the bottom 
line is that there has to be ways to streamline the process to 
make it work better, and that is really what you should be 
focused on. But I really don't know how you can say, and I am 
not doubting your word, but I don't know how you can say things 
are getting better if you haven't been able to track backlog, 
if you don't know, if you don't know how long these leases have 
been laying around.
    Ms. Forrest. In our trust accounting and asset management 
system, which was fully implemented in 2007, was the first in 
the history of the Indian trust that we had all land and 
natural resource data in one system. So now we can look across 
all the leases in the system.
    One of the things that it does not do, but we are 
enhancing, is to do exactly what you said, track it in the 
process. We would like to be able for a landowner to come in or 
use the call center and ask where their lease is at. So that is 
one of the enhancements that we are working on to that system.
    Senator Tester. Okay. Do you have any way, and you probably 
won't, but that is okay, do you have any way to tell me if 
there are certain applications that go in, and I know you 
talked about the ones where there was no change in land use. 
But for example, if I had an application in for drilling some 
oil on trust land, versus an application that comes in to build 
a casino, does one traditionally take longer than the other?
    Ms. Forrest. The gaming applications George would have to 
address, but for the oil and gas leases, that was something 
that we have the environmental compliance that George was 
talking about, the appraisals that we were talking about, and 
then negotiation. Typically, we have third parties that 
negotiate those on behalf of the landowners. So it is a complex 
arena.
    What I am working on is to try to streamline the process 
for our staff.
    Senator Tester. Stop. If the land is in trust, who is the 
landowner?
    Ms. Forrest. The allotted--the tribe or the----
    Mr. Skibine. If the land is in trust, the United States has 
the legal title for the benefit of the tribe.
    Senator Tester. Right. So who do you negotiate with? You 
say you are negotiating on behalf of the landowner. Who are you 
negotiating with if the Federal Government is basically the 
landowner?
    Ms. Forrest. Well, typically, we are going to talk with the 
landowner and have the developer there. And so those 
negotiations take place in that manner.
    Senator Tester. I am still not tracking you. If it is trust 
land, who are you negotiating with, because the Federal 
Government is the landowner?
    Ms. Forrest. But I think we seek to actively have the 
landowner or tribe be a participant in that process. So we 
would have whichever developer comes in, whether they want to 
oil and gas, whether they want to do commercial leasing. But 
for one of my high priorities is that the landowner is an 
active participant in that effort.
    Senator Tester. Okay. I am not tracking. The tribe puts an 
application in that says we want to drill for oil. We have 
Conoco out there that wants to do the drilling, just for the 
sake of discussion. You guys look at this application and then 
you negotiate with what landowner, because there is no 
landowner. It is the Federal Government.
    Ms. Forrest. Well, typically the Bureau is present at the 
negotiations with the tribe and the company. It depends on the 
kind of lease. It depends on whether the tribe has the 
resources to do that on their own and whether they have that 
technical expertise in-house. But at the end of the day, the 
Bureau will review that lease and approve that lease.
    Mr. Skibine. Let me just----
    Senator Tester. Go ahead.
    Mr. Skibine. It seems to me that the tribe and the 
individual or the company that was interested in drilling 
negotiate a lease between themselves and then submit the lease 
to the Bureau of Indian Affairs and the BIA's role is just to 
approve that lease.
    Senator Tester. Correct.
    Mr. Skibine. That is right.
    Senator Tester. Okay.
    Mr. Skibine. That is how it works.
    Senator Tester. And so you get the lease in hand. The tribe 
and the oil company or the driller has already figured out what 
they want to do and they are both comfortable or they wouldn't 
have checked off on this. Then it seems to me that this would 
progress pretty quickly, these kinds of situations. I mean, 
sure, there are probably maybe some issues with endangered 
species or things like that.
    Mr. Skibine. Right.
    Senator Tester. But it could proceed pretty quickly. And I 
guess what I need, the crux of this question was, do those kind 
of leases traditionally take longer or less time than a lease 
to build a casino?
    Mr. Skibine. I think they probably take less time, from my 
experience with approval to take land into trust for casinos. 
But to take land in trust for casinos, if they are off 
reservation, will take traditionally at least two years, if not 
more. So this is going to have to be less.
    Senator Tester. The reason I ask on both accounts, but 
mainly on the natural resource development point is that the 
Chairman has brought up many times where there is a big oil 
field underneath one of the reservations in North Dakota, where 
when things were booming, there were lights all around, but 
none inside the reservation. There has to be a reason for that.
    And if that reason is that the application process takes an 
excessive amount of time, and I believe in doing things right, 
make no mistake about it, but if it is not a priority, it gets 
pushed to the back and pretty soon gets to a situation where 
the person goes other places to do their drilling in this 
particular case.
    Mr. Skibine. Right. There was a problem at Fort Berthold, 
and we have addressed that. Part of the problem was a lack of 
resources to deal with the number of, with the lease 
development, oil development at the time. We have beefed up the 
staff there. We are working on that issue.
    Senator Tester. Was that the problem before Carl Artman 
came on board? Was it a lack of personnel? Were there positions 
that were not filled?
    Mr. Skibine. No. No, I don't think that was the issue. The 
Administration position, before Mr. Artman came on board was 
not an objection to leasing natural resources, just to taking 
land into trust.
    Senator Tester. Okay. I assume there are people within the 
BIA that are dedicated to reviewing these leases and getting 
them out the door.
    Mr. Skibine. Yes, there are.
    Senator Tester. How many are there? How many folks are 
there?
    Ms. Forrest. We have currently 253 realty specialists that 
would do that kind of work throughout the Country.
    Senator Tester. Are they under contract?
    Ms. Forrest. No, they are Federal employees.
    Senator Tester. They are full-time?
    Ms. Forrest. Yes.
    Senator Tester. What were these folks doing when the 
backlog was being accrued, going off of Senator Franken's 
question earlier?
    Ms. Forrest. For land into trust?
    Senator Tester. Yes. You said the backlog got greater 
before Carl Artman came on board. So what were these 250 folks 
doing?
    Ms. Forrest. I think one of the issues was what Mr. Skibine 
raised in terms of it was not a priority for the staff. And 
then currently, BIA has no staff dedicated to the land into 
trust process. So with one realty specialist, they are working 
on leases. They are working on land in trust process and a 
myriad of other acquisition and disposal type activities.
    Mr. Skibine. So I guess what she is saying is that an 
employee is working on land into trust. Taking land into trust 
is only one of the functions that an employee is doing, which 
means is that that was not their priority, but there are 
certainly other issues that these employees do.
    Senator Tester. So they are working on land into trust now?
    Mr. Skibine. Yes.
    Senator Tester. So what is being given up, because they 
must have been working on something else?
    Mr. Skibine. No. Nothing is given up.
    Senator Tester. Nothing is given up?
    Before 2006, before Carl Artman, I should say, you had 250 
people out there that were doing something, you just said, and 
they had other jobs. Now, they have made this a priority and 
they are doing this. What were they doing before, because that 
job isn't being done now?
    Or were they laying around not doing a heck of a lot 
because it wasn't a priority of the Administration? Nobody was 
putting any pressure on them up above to move these 
applications along?
    Ms. Forrest. Well, Senator Tester, our realty specialists 
have a lot of different hats that they wear. So in terms of 
whether it is a commercial lease, a residential lease, home 
site leases, they are working on all of those things. The land 
into trust process was not something that they solely worked 
on.
    So I know from my visits out to the field, and I certainly 
understand your question, but BIA staff was working very hard.
    Senator Tester. I am not questioning that. What I am saying 
is if they were busy before and this wasn't getting done, and 
this is a priority now, and now this is getting done, what are 
we going to have a hearing on next year that isn't being done 
that they were doing before?
    Ms. Forrest. Absolutely.
    Mr. Skibine. Well, our goal, of course is not to have a 
hearing.
    Senator Tester. No, no. I am with you.
    [Laughter.]
    Senator Tester. Especially with Chairman Udall in charge 
here.
    [Laughter.]
    Ms. Forrest. One of the things that I will advocate for is 
in our probate process. In 2005, we identified this large 
backlog in probates, so some steps were taken to increase 
staff, increase training, have performance standards available 
for that. And finally after five years of a huge audit comment 
from our independent auditors, that comment was taken off this 
year.
    Senator Tester. Okay.
    Ms. Forrest. So I will propose a similar framework for our 
leasing specialists.
    Senator Tester. All right. Well, thank you for your time 
here. I think the issue of reducing the backlog is a big issue 
and I think that it is being addresed. I think truthfully it is 
no reflection on you guys, but there are a lot of uanswered 
questions here.
    Thank you very much. Thank you, Mr. Chairman.
    Senator Udall. Thank you, Senator Tester.
    Mr. Skibine, in your testimony, you state that the Carcieri 
decision has disrupted the process for acquiring land in trust 
for recognized tribes by imposing new and undefined 
requirements on applications now pending before the Secretary. 
What plans does the Department have for addressing the Carcieri 
decision?
    Mr. Skibine. First, we would support a Carcieri fix to 
essentially eliminate the issue.
    Senator Udall. And you are referring to a legislative fix?
    Mr. Skibine. Yes.
    Senator Udall. And I believe the Chairman has a piece of 
legislation that is pending.
    Mr. Skibine. Yes.
    Senator Udall. Is the Department aware of that?
    Mr. Skibine. Yes.
    Senator Udall. And supportive of it?
    Mr. Skibine. Yes.
    Senator Udall. Yes. Okay. But go ahead until we get that 
passed.
    Mr. Skibine. Yes. Right now, we are proceeding with taking 
land into trust, we are continuing the process. But for tribes, 
you know, for most tribes, the vast majority of tribes, it is 
not an issue. For those tribes where essentially there is a 
question as to whether they were under Federal jurisdiction in 
1934, then the Bureau Director, Regional Director, essentially 
asks the Solicitor's Office for an opinion on whether to 
proceed with taking the land into trust. That is what we are 
doing right now.
    Potentially, we are looking for the legislation, and we 
hope that we are, so we are, at this point we don't have, 
except for doing it on a case by case basis, we are not looking 
at anything at this point.
    Senator Udall. Okay. But so you are having the Solicitor's 
Department give a review as to whether or not you need to do 
these additional things?
    Mr. Skibine. Right.
    Senator Udall. Yes. Okay.
    Senator Franken, are you interested in asking any 
additional questions here?
    Senator Franken. No. I am fine.
    Senator Udall. Okay, because I am going to move to the next 
panel.
    Let me just before we dispense with this panel, you know, 
the Department's written testimony recites some data for 
pending land transactions, but it does not detail the 
Department's plan for how it will move forward to clear the 
backlogs. And I think you have heard from our Committee Members 
today, Mr. Skibine, that they want to see the data in such a 
way that we can compare from the past and move to the future, 
know how long something has been pending, get a real sense of 
whether you are eliminating the backlog, making progress on the 
backlog, those kinds of things.
    And you should know that the Chairman intends to continue 
holding hearings on this and getting the kind of data that we 
need to proceed and get a sense of your plan. We are going to 
submit additional questions. We will also want the Department's 
detailed plan for how it will clear the backlog, and we will 
ask for that in these additional questions.
    So with that, we are going to excuse you and move to the 
next panel. We thank you both very much for your testimony 
today and look forward to hearing from you in the future.
    Mr. Skibine. Thank you, Mr. Chairman.
    Ms. Forrest. Thank you.
    Senator Udall. Thank you.
    And at this point, we will call Mr. Artman up, and also the 
Honorable Derek Bailey, Chairman of the Grand Traverse Band of 
Ottawa and Chippewa Indians of Michigan.
    Mr. Artman, welcome. Good to see you again. Please proceed.

STATEMENT OF CARL J. ARTMAN, PROFESSOR OF PRACTICE, SANDRA DAY 
       O'CONNOR COLLEGE OF LAW, ARIZONA STATE UNIVERSITY

    Mr. Artman. Thank you, Senator Udall. It is a pleasure to 
see you as well. Good morning.
    And good morning, Senator Franken.
    It is a pleasure to be here today to address this issue of 
backlogs at the Bureau of Indian Affairs on land-related 
matters, and the impact that this has on the ability of the 
tribes to govern and engage in economic development.
    I ask permission to submit my full comments for the record.
    Senator Udall. They will be submitted and in the record and 
you can summarize at this point.
    Mr. Artman. Thank you.
    When I served as Assistant Secretary for Indian Affairs, we 
identified the backlogs in the fee to trust applications, 
probates and leases as a foundational issue in the problems 
that impacted tribes on numerous levels. This backlog 
prohibited tribes from fully exercising their sovereignty and 
jurisdiction over these lands, inhibited tribal economic 
development, and forestalled the vesting of rights for 
individual tribal members.
    The need to address this issue became immediately apparent 
at the first hearing that this Committee held on this issue 
during my tenure on October 4, 2007. In preparing for the 
hearing, we weren't able to gather consistent data to quantify 
the problem for ourselves, for you, or for our tribal 
stakeholders. I pledged to you and this Committee at the end of 
that hearing that we would resolve these issues and make 
substantial forward progress on this issue.
    We began the process to reduce the backlog of applications 
by looking at potential policy changes through either new or 
amended regulations. Compilation and analysis of the data 
quickly revealed that the backlog was not a policy problem, but 
a management choice. The 151 regulations adequately outlined 
the necessary processes to acquire the land into trust. The 
Department just did not manage those processes to incentivize 
and finalize the trust applications.
    Therefore, we changed our approach to the fee to trust 
process. First, we quantified and qualified the extent of the 
backlog. We knew how many applications we had, where they were 
in the process, and in what offices they were located. Second, 
we made completion of the fee to trust application a priority 
that manifested itself in annual performance goals that 
impacted every person involved in the fee to trust process from 
top to bottom.
    The Department has excellent employees that want to perform 
at their best. The BIA does not have employees dedicated only 
to fee to trust acquisitions, as Ms. Forrest just pointed out. 
This is a responsibility that falls onto the shoulders of a 
person that may do many things in a day. If these tasks aren't 
prioritized through a meaningful method, all of the tasks will 
suffer. The other option is appropriation of funds to hire and 
train additional personnel to efficiently manage all of the 
issues that are currently handled by only one.
    Our third initiative was development of a fee to trust 
handbook. At that time, each of the BIA's 11 regions receiving 
fee to trust applications managed the process differently. This 
national inconsistency bred frustration, imposed geographical 
discrimination, and baited litigation. Regional domination of 
the process made meaningful data collection and analysis 
impossible. Deputy Director Forrest managed with aplomb the 
handbook development. It was approved and disseminated to the 
regions in May of 2008. It is now used by all the regions and 
hopefully it has brought some consistency to the fee to trust 
process.
    Finally, we addressed unique problems with unique 
solutions. For example, applications seeking to take off-
reservation land into trust for non-gaming purposes had a 
unique problem. To resolve this matter, we replaced three 
people that allowed these applications to linger, sometimes for 
over a decade, with one very motivated individual. Within four 
months, Kevin Bearquiver, now the Deputy Director for Indian 
Services, was able to review and make recommendations on each 
of the pending applications.
    The Department of the Interior and the BIA improved the 
time line for taking land into trust. The real impact will 
occur if these improvements are made a fabric of the 
organization. The Department and the BIA are sometimes a 
necessary and sometimes a helpful partner with tribes in 
developing the latter's futures. Tribes, though, must carefully 
gauge their reliance on the Federal Government and tribes 
should render the strategic determination if they want or need 
land taken into trust for economic development.
    The purpose of taking land into trust, as set out during 
the reorganization era, was to reestablish a land base that had 
been allotted in the previous decades. The IRA-based process is 
still a very necessary process as tribes struggle to regain 
control over a portion of their lands.
    In this era of self-determination, tribes have developed 
internal expertise and experience to effectively manage their 
own lands. Tribal governments are once again managing their 
lands in accordance with their culture and their needs, be it a 
need for development or a mandate for environmental 
stewardship.
    The decision to take land into trust by the tribal 
government has ramifications that may not have been considered. 
Tribes may wish to approach the issue from the perspective of, 
should we take this land into trust, instead of, we must take 
this land into trust. Real economic development flourishes in 
markets that exhibit both flexibility and predictability.
    Economic development in Indian Country requires, among 
other things, government transparency and accessible and stable 
legal and political infrastructure, and a tribal government 
that acts quickly in a market rife with competition. It is this 
latter point that argues against taking all land into trust.
    Perhaps the first question a tribe should ask is whether 
taking this land into trust will promote economic development. 
The tribal government may determine that the process takes too 
long, especially when compared to how fast markets move. In 
addition, budget constraints of the Department may make it a 
longer process, or perhaps the Department may eliminate tools 
that allow for effective and efficient applications to go 
through, such as the fee to trust consortiums. The tribal 
government may wish to consider that once it is in trust, the 
land cannot be collateralized to finance other projects.
    Once it is under Federal control, the tribe can no longer 
lease or market it as it sees fit. Instead, the Federal 
Government must now approve those acts. The government may 
weigh the benefits against the fact that the mere process of 
taking it into trust is time consuming, expensive, fraught with 
litigation threats, waste local political capital, and may 
impel the tribe to negotiate prematurely an intergovernmental 
agreement with their neighbors.
    If the land is taken into trust, the tribe will be able to 
clearly exercise its authority over the land. But in many 
cases, that authority has already been severely limited by the 
Supreme Court over the last few decades.
    Once the land is in trust, though, the tribe does know with 
some degree of certainty what laws apply on that land. The 
tribe knows that State and local taxation, zoning, and 
environmental laws are not applicable on those lands, but it is 
their laws that will be applicable. And if given the choice 
between having the land in trust or not in trust, most tribes 
will go with the former.
    If this is the case, then the Federal Government should 
ensure that it is the best partner in this process by allowing 
tribes to be fully competitive participants in their 
marketplace. This could be accomplished through passage of 
legislation that allows for tribal oversight of its leasing, 
such at the HEARTH Act, or through the Department's 
clarification of the parameters of 25 USC 177.
    In closing, I would like to offer my best wishes to 
Assistant Secretary Echo Hawk, his staff and the employees of 
the BIA as they continue to struggle with these complex and 
emotional issues.
    This concludes my statement.
    [The prepared statement of Mr. Artman follows:]

Prepared Statement of Carl J. Artman, Professor of Practice, Sandra Day 
           O'Connor College of Law, Arizona State University
    Good morning Mr. Chairman and members of the Committee. It is a 
pleasure to be here today to address the issue of backlogs at the 
Bureau of Indian Affairs on land related matters, and the impact that 
this has on the ability of tribes to govern and engage in economic 
development.
    When I served as Assistant Secretary-Indian Affairs, we identified 
the backlogs in fee-to-trust applications, probates, and leases as a 
foundational issue in problems that impacted tribes on numerous levels. 
This backlog prohibited tribes from fully exercising their sovereignty 
and jurisdiction over these lands, inhibited tribal economic 
development, and forestalled the vesting of rights for individual 
tribal members.
    The need to address this issue became immediately apparent at the 
first hearing this Committee held on this issue during my tenure, on 
October 4, 2007. In preparing for the hearing, we were not able to 
gather consistent data to quantify the problem for ourselves, for you, 
or our tribal stakeholders. The Department could not identify, with 
certainty, the number of pending fee-to-trust applications in the 
regions; it could not determine when off-reservation trust applications 
first came to the Central Office; and it could not determine the status 
of pending leases. I pledged to you, at the end of the hearing, that we 
would resolve these issues and make substantial forward progress.
    On May 22, 2008, this Committee revisited the issue. At that point 
we were able to report significant progress. In the eight months 
between hearings, the employees of the Department involved in leasing 
and trust acquisition focused their efforts to resolve these identified 
issues. In that time:

        1) We were in the final phase or completed the process to take 
        into trust nearly 65,000 acres of land.

        2) We completed the transition to the Trust Asset and 
        Accounting Management System, thereby improving the 
        Department's access to current data regarding the status of 
        land holdings and applications.

        3) We identified the number and locations of pending commercial 
        leases in the Department's system.

        4) We assigned additional personnel to help reduce the lease 
        backlog associated with recent oil and gas lease bids.

    We began the process to reduce the backlog of applications by 
looking at potential policy changes, through either new or amended 
regulations. Compilation and analysis of the data quickly revealed that 
the backlog was not a policy problem, but a management choice. The 
regulations at 25 CFR 151 et seq. adequately outlined the necessary 
processes to acquire the land into trust. The Department did not manage 
those processes to incentivize and finalize the trust acquisition.
    Therefore, we changed our approach the fee-to trust process. First, 
we quantified and qualified the extent of the backlog. We were able to 
determine that the Department had 1,489 fee-to-trust applications.
    Second, we made completion of the fee-to-trust applications a 
priority that manifested itself in annual performance goals that 
impacted every person involved in the fee-to-trust process, ranging 
from the intake specialist at the agency level all the way to the 
director of the Bureau of Indian Affairs. The Department has excellent 
employees that want to perform at their best. However, they have too 
many demands on their time and, often times, little direction on what 
to do first. The BIA does not have employees dedicated to only fee-to-
trust acquisitions. This is a responsibility that falls onto the 
shoulders of persons that review leases, process lease payments, answer 
data calls, and contend with various other issues that fall on their 
desk everyday. If these tasks are not prioritized through a meaningful 
method, all of the tasks will suffer. The other option is appropriation 
of funds to hire and train additional personnel to efficiently manage 
all the issues currently managed by one person.
    Our third initiative was the development of a Fee-to-Trust 
Handbook. At that time, each of the BIA's eleven regions receiving fee-
to-trust applications managed the process differently. Applicants in 
one region were required to submit an environmental impact statement, 
while an applicant in another region with a similarly situated piece of 
land would qualify for a categorical exclusion. In some regions, 
applicants would submit reams of information regarding the status of 
the land, and merely a summary in others. This national inconsistency 
bred frustration, imposed geographical discrimination, and baited 
litigation. Regional domination of the process made meaningful data 
collection and analysis impossible.
    Deputy Director Vicki Forrest managed with aplomb the Handbook 
development. It was approved and disseminated to the regions in May 
2008. It is now used by all of the regions, and, hopefully, it has 
brought some consistency to the fee-to-trust process.
    Finally, we addressed unique problems with unique solutions. 
Applicants seeking to take off-reservation land into trust for non-
gaming purposes had a unique problem. To resolve this matter, we 
replaced the three people that allowed these applications to linger, 
sometimes over a decade, with one very motivated person. Kevin 
Bearquiver, now the Deputy Director for Indian Services, reviewed each 
of the 44 applications over a four month period, made final 
determinations on some of them or requested specific information from 
the applicant Tribes to allow for final determinations.
    By May 2008, we were able to return here and tell you that of the 
1,489 applications, 89 were completed, 266 were moving into the final 
stages of acquisition, 90 were withdrawn, and 613 pending requests 
lacked sufficient information required by the regulations. Of the 
remaining 363 land-into-trust applications:

   178 pending applications were waiting on local government 
        comments or tribal responses to questions;

   45 were undergoing NEPA analyses;

   35 were being surveyed for hazardous materials impacts; and

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

    I wish I could tell you we had similar success with leasing and 
appraisals. The best we were able to accomplish in the eight months 
between hearings was an accurate quantification of the outstanding 
appraisals and leases. We began discussion of a solution for appraisals 
that involved the use of blanket appraisals of lands that could be 
similarly situated. With regards to leases, we moved people, funds, and 
equipment to concentrate on unique issues in specific areas, such as 
the processing of oil and gas leases on the Fort Berthold Reservation 
and commercial leases for the Agua Caliente tribe in the Palm Springs 
Office.
    The Department of the Interior and its Bureau of Indian Affairs 
improved the timeline for taking land-into-trust. The real impact will 
occur if these improvements are made a part of the fabric of the 
organization. The Department and the BIA are sometimes a necessary and 
sometimes a helpful partner with the tribes in developing the latter's 
future. Tribes must carefully gauge their reliance on the Federal 
Government. And tribes should render the strategic determination if 
they want or need land taken into trust for economic development.
    The purpose of taking land into trust, set out in the Indian 
Reorganization era, was to reestablish the land base that had been 
allotted in the previous decades. This land base would create a 
foundation for tribal governments to exercise their sovereignty to the 
exclusion of others. It would provide tribes the protection of the 
Federal Government in the ownership of the land, a protection that 
harkened back to pre-colonial times through the initial years of our 
government, and in the exercise of their jurisdiction. This IRA based 
process is still a very necessary process as tribes struggle to regain 
control over a portion of their lands.
    In this era of Self-Determination, tribes have developed the 
internal expertise and experience to effectively manage their own 
lands. Tribal governments run their own land, title, and records 
offices. They regulate land use through their own laws that oversee 
development and conservation on the reservation. Tribal governments are 
once again managing their lands in accordance with their culture and 
needs, be it a need for development or a mandate for environmental 
stewardship.
    The decision to take land into trust by the tribal government has 
ramifications that may not have been considered. Tribes may wish to 
approach the issue from the perspective of ``should we take this land 
into trust,'' instead of ``we must take this land into trust.''
    The Federal Government states it wants to promote economic 
development in Indian country. It supports this claim with programs 
like loan guarantees, the 477 program, training grants, and bonding 
authority. It also claims that taking land into trust will further 
economic development. This is a concept I promoted when speaking about 
this issue. And yes, taking land into trust may help a tribe with an 
aspect of its economic development plan. Some of the aforementioned 
federal programs may be limited to use for developments on trust land. 
The exercise of sovereignty may benefit tribal economic development in 
determining the use of the land, the timing of development, and the 
extent of sovereign immunity for those entities that operate on those 
lands.
    Real economic development flourishes in markets that exhibit both 
flexibility and predictability. Economic development in Indian country 
requires, among other things, government transparency, an accessible 
and stable legal and political infrastructure, and a tribal government 
that acts quickly in a market rife with competition. It is the latter 
point that argues against taking all land into trust.
    Perhaps, the first question a tribal government should ask is 
whether taking this land into trust will promote economic development. 
The tribal government may determine that the process takes too long, 
especially when compared to how fast the market moves. In addition, 
budget constraints on the Department may make it a longer process or 
perhaps it will eliminate tools like the fee to trust consortium. The 
tribal government may wish to consider that once it is in trust, the 
land cannot be collateralized to finance other projects. Once it is 
under federal control, the Tribe can no longer lease it or market it as 
it sees fit, instead the Federal Government must now approve those 
acts. The government may weigh the benefits against the fact that the 
mere process of taking it into trust is time consuming, expensive, 
fraught with litigation threats, wastes local political capital, and 
may compel the tribe to negotiate prematurely intergovernmental 
agreements with their neighbors.
    If the land is taken into trust, the tribe will be able to clearly 
exercise its authority over the land. But in many cases that authority 
has been limited over the decades by the Supreme Court. Once the land 
is in trust, the tribe knows, with some degree of certainty, what laws 
apply on that land. The tribe knows that state and local tax, zoning, 
and environmental laws are not applicable on those lands. And if given 
the choice between having the land in trust and not in trust, most 
tribes will go with the former.
    However, this could become less of a Hobson's Choice if the 
Department made a clear determination on the applicability of 25 U.S.C. 
177 to on-reservation lands. Especially since the Department is not 
sure how 25 U.S.C. 177's restraint on alienation applies to fee lands 
in reservations, thereby essentially foreclosing the benefits of on-
reservation fee land.
    In the last administration, a Solicitor's Opinion from the 
Department may be read to imply that Indian tribes' authority to engage 
in real estate transactions relating to lands they own in fee simple 
absolute title extends only to off-reservation land and that tribe must 
seek federal approval for sales, leases, and mortgages of reservation 
fees lands. Federal courts that have addressed this issue have rejected 
this implied limitation on tribal authority. Tribes routinely engage in 
transactions relating to reservation fee lands without federal 
approval. BIA has not claimed any approval authority over them nor is 
it likely that BIA, already overburdened, wants to assume these new 
duties.
    This opinion has the potential to limit choices in Indian country 
and sow doubt among title companies regarding the authority of tribes 
to engage in real estate transactions relating to their lands owned in 
fee simple title. This could inhibit economic development, create 
further unacceptable delays in closing business transactions and tribal 
home loans, and force tribes, alone among owners of fee land, to incur 
costs of obtaining acts of Congress in order to engage in routine real 
estate transactions.
    Tribal sovereignty would suffer as tribal governments' decisions 
become subject to second-guessing by federal bureaucrats. In view of 
the circumstances that the Federal Government most likely does not want 
to assume additional trust burdens, the potential oversight impinges on 
a forty-year old federal policy of encouraging tribal self-
determination, and that this may limit tribal options, the Interior 
Department should issue an additional opinion that Section 177 does not 
apply to lands owned by tribes in fee simple absolute and that tribes 
require the approval of neither the Interior Department nor the 
Congress to use these lands as the tribes see fit.
    I offer my best wishes Assistant Secretary Echo Hawk, his staff, 
and employees of the BIA as they continue to struggle with these 
complex and emotional issues.
    This concludes my statement.

    Senator Udall. Thank you, Mr. Artman.
    And please, Chairman Bailey, please go ahead.

 STATEMENT OF HON. DEREK BAILEY, CHAIRMAN, GRAND TRAVERSE BAND 
                 OF OTTAWA AND CHIPPEWA INDIANS

    Mr. Bailey. Good morning. First, I would like to recognize 
Chairman Dorgan for holding this hearing, and also Chairman 
Udall and Senator Franken for your attendance here, and also 
honorable Members of the Committee.
    I very much appreciate the invitation to appear before the 
Committee today. My tribe, the Grand Traverse Band of Ottawa 
and Chippewa Indians, is located on the shores of Grand 
Traverse Bay in the northwest lower peninsula of Michigan. It 
consists of approximately 4,000 members who descend primarily 
from the Odawa and Ojibwa and Anishinaabek.
    The United States and the Grand Traverse Band entered into 
a series of treaties in the 19th century. However, as the 
Federal courts have found in 1872, the Secretary of Interior 
illegally terminated Federal recognition of our tribe. The 
United States washed its hands of us and we had to fight for 
over a century to regain Federal recognition.
    During that time period, we endured great hardships, 
including loss of almost our entire land base. When we were 
restored to Federal recognition in 1980, we had only a tiny 
150-acre State reservation set aside for our use. The placement 
of land into trust for the Grand Traverse Band has hence played 
a critical role in the revitalization of our governmental, 
social and economic institutions and, indeed, in our very 
ability to function as a tribe.
    Since 1980, the Secretary has taken 43 parcels of land into 
trust for us, totaling approximately 1,000 acres. All of these 
trust acquisitions have fallen within the Band's historic 
territory surrounding Grand Traverse Bay.
    We have utilized these trust acquisitions for four critical 
governmental purposes: First, in order to provide core 
governmental services such as tribal government offices, a 
health clinic, a tribal court, law enforcement and natural 
resources management; second, for critically needed housing for 
our members; third, for economic development and 
diversification; and fourth, for treaty rights-related 
activities.
    While the restoration of a small portion of our territory 
through the land into trust process has been essential to the 
revitalization of our tribe, we cannot function in a fully 
effective manner as a government without additional lands.
    Unfortunately, however, the land into trust process has 
become tortuously slow and complicated. As is the case with so 
many other tribes, we have been stymied by the failure of the 
Department to act on trust applications for years, even when 
those applications are not objected to by the State or local 
units of government, and even when they involve lands that will 
allow us to provide critical services to our community.
    By way of example, in November of 2007, the Department 
returned to us as being too old four trust applications that we 
filed between 1992 and 1994. All four of those applications 
involve land parcels that fall within the heart of our historic 
territory and that are contiguous to our existing trust 
properties. One of the parcels would be used for critically 
needed housing for members. The second already contains tribal 
member housing, but because the land is not in trust, 
complicated jurisdictional problems arise that thwart our 
ability to effectively govern the area. The third would be used 
to provide safe access to Lake Michigan where many of our 
members exercise their treaty fishing rights. And the fourth 
would be maintained in its current forest condition in order to 
allow our members to exercise their treaty gathering and 
hunting rights. None of the applications is gaming-related.
    Even though the State and local units of government do not 
object to these applications, they languished at the Department 
for well over a decade. No amount of effort on our part was 
able to move the applications along. Then, in 2007, the 
applications were returned to us as too old, even though it was 
the Department that was responsible for their long pendency.
    In addition to the four returned applications, we presently 
have eight trust acquisition requests pending with the 
Department. Once again, several of these applications have been 
pending for over 15 years. Although the proposed acquisitions 
fall within the Grand Traverse Band's historic territory, 
almost all are contiguous to existing trust lands, none are 
gaming-related, and none are objected to by the State of 
Michigan or any local unit of government. The Band intends to 
use the parcels for housing, the provision of governmental 
services, the exercise of treaty hunting and fishing rights, 
and economic development and diversification.
    As one example, parcel 45 in Antrim County is a 78-acre 
parcel that is zoned for residential development by the local 
township and county. In order to attain the zoning, our tribe 
spent $1.5 million for roads and for sewer, water and 
electrical infrastructure to render the parcels ready for 
individual housing. The parcel contains two homes owned by 
tribal members, two Grand Traverse Band rental homes, and 22 
empty lots available for tribal members to construct housing. 
However, until the land is placed into trust, tribal members 
cannot obtain the leases necessary to secure housing financing.
    Our trust application for this parcel was filed in 2001 and 
we have applications pending that are considerably older than 
that. Although the Department is now apparently deferring 
action on any of our applications until it sorts through the 
implications of the Carcieri decision, or until corrective 
legislation is passed by Congress, they should have acted on 
these parcels years ago and certainly long prior to the time 
that the Carcieri decision introduced additional complexities 
into the process.
    I hope that my testimony underscores the need for 
significant reforms to the present land into trust process. The 
Grand Traverse Band tribal government is working as hard as 
possible to improve the lives of our citizens and to further 
revitalize our governmental, social and economic institutions 
that commenced with our restoration to Federal recognition.
    The terrible delays that presently plague the land into 
trust process are a major impediment to our efforts and to 
similar efforts by tribal governments around the Country. We 
have included several recommendations for action in the written 
testimony that we have filed with the Committee, and I want to 
say thank you, [greeting in native tongue] again for the 
opportunity to appear before you today.
    [The prepared statement of Mr. Bailey follows:]

Prepared Statement of Hon. Derek Bailey, Chairman, Grand Traverse Band 
                     of Ottawa and Chippewa Indians













    Senator Udall. Thank you, Chairman Bailey.
    Chairman Bailey, you mention in your testimony that early 
trust applications were typically processed within a year or 
two of submission, but that now you have applications that have 
been pending for 15 years. And you also mentioned some 
intermittent activity. In your opinion, what is the reason that 
trust applications used to be processed in a timely manner 
compared to now, when you have applications pending for several 
years or decades?
    Mr. Bailey. To answer that question, I will give some 
history. In 2008, we had approximately 200 acres of land that 
was spread over a number of parcels taken into trust for us. 
But in that illustrates also the problems with the current land 
into trust process. Those applications in question were pending 
from, again, anywhere from eight to 14 years.
    Still, the Minneapolis Regional Office, which we deal with 
as a self-governance tribe, showed no signs of acting on the 
applications. It took the former Chair, and that's why I wanted 
a historical part to my answer, being just a year now seated as 
Chair, there is historical content that I am not as strong on. 
But it took the Chair and other leaders repeated visits to the 
office, to the central office here in Washington urging action 
be taken on the pending applications, but nothing happened.
    Now, we succeeded ultimately because of the relationship, 
the superintendent realty officer at the Michigan agency 
expressed a willingness to assist us, and because the Regional 
Director authorized them to do so.
    All this required a tremendous amount of resources, 
expenditure of resources and time on our part. But this one 
time success, did nothing to fix the long-term problems that we 
see with a regional office that failed to satisfactorily 
discharge its land into trust responsibilities.
    Senator Udall. I think you also mention in your testimony 
that the Carcieri opinion has impacted some of your 
applications. Do you support a fix to that? Or what are you 
recommending be done there?
    Mr. Bailey. Chairman Udall, I appreciate the question for 
our response. The Grand Traverse Band strongly, you know, we 
believe firmly that under Federal jurisdiction 1934. Hence we 
remain entitled to the benefits of the Indian Reorganization 
Act under the terms of the Carcieri decision, but it is not 
clear to us how the Interior Department is going to apply the 
decision. However it acts, we do feel significant litigation 
will follow. But the Grand Traverse Band does support, I think 
you termed it earlier, the response was a legislative fix.
    Senator Udall. Yes. Thank you, Chairman Bailey.
    Mr. Artman, one of your initiatives, and I think you talked 
about it in your testimony, was creating a fee to trust 
handbook, and that brought consistency. I think you testified 
to that process. Do you think a similar handbook would be 
helpful for processing of appraisals, leases or other land 
transactions?
    Mr. Artman. I think certainly for leases it would be 
helpful, especially since there are many different kinds of 
leases out there, to the degree that they need to come back to 
the Department of the Interior.
    One of the bills pending currently before Congress, I 
believe it is called the HEARTH bill, which would allow for a 
Navajo-type leasing process that tribes could take on 
themselves. That might be the best fix to it.
    Short of that, a leasing handbook or policies or processes, 
internal guidelines that explain how best to bring leases in 
would be good for processing the leases as well.
    But you also have a human resources issue there as well 
that needs to be addressed that no handbook or efficiency in 
the processes will be able to overcome. And again, it does 
become a matter of priorities and funding because people and 
technology can only do so much.
    Senator Udall. Listening to Chairman Bailey and the 
problems he has had, and then your experience there at 
Interior, what would you recommend be the first couple of 
actions taken by the new Assistant Secretary to get through 
this?
    Mr. Artman. I think the Department of the Interior has, 
some of its best resources are its people, the people that are 
on the ground in the regions at the Agency levels, they 
understand where the land is situated, the needs that the 
tribes have, and empowering those individuals to do their very 
best. And that can be done through prioritizing, which this 
Administration is certainly doing, putting those priorities 
into performance standards that put mandates on the individuals 
to pass their annual performance exams, performance standards, 
to meet certain goals and objectives. That seemed to work very 
well for us because it did shift the priority over.
    Along with that, you have to manage, for better or worse, 
the fact that there will be something lost in that process 
unless there are more people brought on board or more 
technology installed into the process to pick up the focus that 
is placed elsewhere.
    Senator Udall. Thank you, Mr. Artman.
    Senator Franken?
    Senator Franken. Thank you, Mr. Chairman.
    Mr. Artman, I was struck by the part of your testimony when 
you talked about Kevin Bearquiver. And basically, what you 
describe is that he accomplished himself in four months what 
three employees had failed to accomplish in a decade. Is this 
something to learn from, how did he do what he did? And what 
can we learn from it? And what can others learn from it?
    Mr. Artman. I think Mr. Bearquiver is a good example of 
some of the motivation, intelligence and capabilities that 
exist within the Department of the Interior. And having worked 
with him before in the Department on other matters and heard 
from others, his supervisors, on what an excellent individual 
he was, and he understood the issue, very importantly.
    The frustration that I had with that office that was 
reviewing those was unbelievable. In preparing for that very 
first hearing in October, 2007, we were going over leases, land 
into trust on-reservation, land into trust off-reservation, 
where the applications were. One of the individuals said to me 
that they were looking for a particular application that 
allegedly came in years before, and we couldn't find it. And 
then she went to her desk and she found it after she dug 
through the bottom of the pile. It was in a FedEx envelope that 
was sent in years earlier.
    Now, you think if someone's going to go through the trouble 
of sending in next-day delivery through Federal Express that 
they are actually going to receive it. They are going to open 
it up at least within a day or two, and at least begin to 
process it. Because someone is saying to them, this is 
important to us, that we have a record that it was delivered to 
you and delivered to you quickly.
    When I heard this, I was dumbfounded and realized that we 
had to make a change in that area. It was an experiment to be 
able to put one person in there, but it worked well.
    Senator Franken. Don't you think someone sending a FedEx 
package would call the next day and say, did you get it?
    Mr. Artman. They did. That is the thing, because they did.
    Senator Franken. Okay.
    Mr. Artman. They did. They had lobbyists. They had lawyers. 
The tribal leaders called themselves, and still this was coming 
to a dead end.
    But that office certainly doesn't represent the BIA. That 
is the worst example that you could probably find out there. 
You might be able to find a few others, but that is one of the 
worst examples that you could find out there.
    I think what the motivation that Mr. Bearquiver showed when 
he was put into that position, and when he went through those 
applications one by one, calling up the tribes saying, where it 
this? What does this mean here? How can we change this? He was 
working with them. That shows the motivation that is probably 
more prevalent in the Department of the Interior at both the 
central office, the regional offices and the Agency level than 
the other way around. So it is a matter of tapping into that 
and pulling that out.
    Senator Franken. That just worries me, someone having a 
pile.
    Mr. Artman. It is not there anymore.
    Senator Franken. I mean, I have piles, but I have a 
different kind of job. I don't process these things.
    Senator Udall. You also have a staff.
    [Laughter.]
    Senator Franken. Exactly.
    Senator Udall. Get them to tackle that pile.
    Senator Franken. Yes. I mean, I have piles at home.
    [Laughter.]
    Senator Franken. Is what I was saying.
    How does the BIA--this is for either of you--make the 
rulings? On what basis?
    Mr. Bailey. Chairman Udall, if I could just confer. I have 
the General Counsel from the Grand Traverse Band here.
    Senator Udall. Please, please.
    Mr. Bailey. I am sorry to defer, but I wouldn't mind a 
moment while he is responding.
    Mr. Artman. Sure. How does the BIA make the decisions? You 
know, as Mr. Skibine alluded to earlier, the 151 regulations 
are relatively simple. They take up all of two columns in the 
regulation. If you go off-reservation, you are looking at an 
additional four or five paragraphs there.
    The Department of the Interior receives a lot of 
applications. The question was asked earlier, how many were 
received in the last year--and this by way of example of how 
many applications received. In the last hearing that I did on 
this in May, 2008, I believe that there were 1,400 applications 
pending, so that would, say, approximately 500 new applications 
were received. If that is the case, you have the process where 
it comes into the TAAMS (Trust Asset and Accounting Management 
System) and then it is marched through that process.
    But one of the things that we did and I think one of the 
things that this Administration is doing as well is not just 
taking a look at these as objective applications, but as they 
get further into the process, determining which ones can 
actually be done more quickly, which ones need to be done more 
quickly, is there a commercial purpose, a housing purpose, is 
this something that will necessarily take a long time because 
of the lack of information, because of a lien that may be on 
it, or if there is a NEPA problem, if there is an environmental 
issue.
    Senator Franken. So you are prioritizing them--you are kind 
of doing a triage.
    Mr. Artman. Yes. One of the things that we did, for 
example, was when we finally were able to quantify and qualify 
what kind of applications that we had, we determined that there 
were 215 applications that we could deal with now. We had all 
of the information that was necessary. It was all timely. There 
were not problems. And of those 215 applications, I think 
within seven or eight months we were able to get through about 
60 percent of those, a little bit under.
    So that is the kind of triage that we were doing. I think 
that they are still doing it now as well.
    Senator Franken. Mr. Chairman, did you have----
    Mr. Bailey. Yes, Senator Franken, I think it would be 
beneficial to have a tribal perspective responding.
    Senator Franken. Right.
    Mr. Bailey. I do want to make note that we believe that 
there are many fine people that are working on the land into 
trust issues at the Interior Department. The people at the 
Michigan Agency are excellent. Our field solicitor in 
Minneapolis has been very helpful. There are many highly 
skilled individuals acting in good faith in the central office 
as well, including Mr. Skibine, and we listened to the 
testimony earlier as far as the direction that was being handed 
down, as they are guided from the top down. And so there is 
some worry, some components to that historically, as I sit here 
as a current leader today, understanding the history that leads 
to the oversight hearing today.
    But somewhere within the Department, the process and the 
trust applications, there is a breakdown. And looking from the 
outside in, I don't know why. I could say we, as a tribe, don't 
know why or where that happens. But I will make the statement 
that this is why we believe it is very important that the 
Department establish and adhere to fixed guidelines regarding 
the processing of trust applications.
    Senator Franken. Okay. So basically, you deal with very 
good people, but that said, somewhere in there, the stuff gets 
lost.
    Mr. Bailey. Senator, thank you. Again, highlighting the 
individuals that we are working with----
    Senator Franken. Right.
    Mr. Bailey.--I know that. And correct me if I am wrong, Mr. 
Artman, but since 1980, I believe there has been about 30, 
approximately 30 memorandums or guidelines from the Department. 
And it has been complicated, or they have been--the correct 
word is when--I am trying to search for a word. I am sorry, 
sir. But when they conflict and there is no adherence or 
sequential.
    Senator Franken. You are getting conflicting memos.
    Mr. Bailey. That is exactly--yes, conflicting.
    Senator Franken. Yes. I know what that is like.
    Okay. So from the tribe's perspective, you are dealing with 
very good people, but somewhere in there it is just not getting 
done.
    Mr. Bailey. And I just have to quote my testimony, and also 
the written testimony. You know, 15 years, and, you know, still 
waiting, then having them come back and saying they are too 
old. You know, tribes, we did our part. Our leaders took the 
initiative, put forth the energy, the resources, commitment to 
that. And then to have it fall short, and then from outside the 
tribal responsibility in this matter, to have it said it is too 
old and have them returned.
    Senator Franken. Now, Mr. Artman----
    Mr. Bailey. Those parcels are--I am sorry.
    Senator Franken. No, no. I was just going to say, Mr. 
Artman, Mr. Skibine talked about you glowingly and that there 
was sort of a change when you showed up. Okay?
    Mr. Bailey. Yes.
    Senator Franken. So you clearly are a proactive person. And 
so a proactive person who came into an organization where there 
was some stasis, shall we say, regarding this. And again, I 
talked about Mr. Bearquiver.
    What is the answer here? I mean, you see Chairman Bailey 
talking about good people he is talking to, but then it just 
kind of goes into some kind of cloud or something. What is 
going on?
    Mr. Artman. Well, I hope between having consistency across 
the Nation through the fee to trust handbook, and I hope by 
starting off the concept of putting the fee to trust or leases 
into the performance standards, and training the individuals. 
Right now, each person is worked into the budget for the salary 
of the individual. There is training money that is set aside, 
essentially, in that number that you see for the personnel.
    It is important that the Department and the individuals 
take advantage of that. Constant reeducation and keeping the 
mind sharp on these issues is critical. And that is what you 
see in people like Mr. Bearquiver and many of the people 
throughout the central office and the regions. They exemplify 
the best in what I think is probably the overwhelming majority, 
of the thought, the hope and the intentions of the people to do 
that.
    I think, you know, this has to be from the top down, and 
certainly Mr. Skibine said it, that this is a priority for this 
Administration. This was a priority when I was at the 
Department. And if this is going to be the same kind of thought 
that continues on from Administration to Administration, 
Assistant Secretary to Assistant Secretary, then we are going 
to start to establish something.
    And I would hope that in two or three years, once this 
becomes part of the fabric, part of the culture, that Chairman 
Bailey, or his successors or something, if the next election 
not work out, can come back here and say we have had 
improvements, that we have seen our land go into trust, and 
that working with the government has now become a good 
experience.
    And I think in the work that we did, we started to see that 
from tribes saying, yes, this is finally working for us.
    Senator Franken. I hope you are right. I hope that happens. 
And thank you, both gentlemen, for your testimony.
    Thank you, Mr. Chairman.
    Senator Udall. Thank you, Senator Franken, and thank you 
for your important participation today and for staying through 
both panels. I appreciate it very much.
    We know from the hearing today, from both panels, that 
these are very important issues to tribes.
    You know, Chairman Bailey, you really highlighted it, 
talking about the issues that concern your tribe in terms of 
the applications, and you really brought that home. So we know 
we want this process to move forward.
    And in that respect, Mr. Skibine and Ms. Forrest, we really 
appreciate you staying over and listening, and hope that maybe 
some ideas were generated here, and something that will be 
helpful.
    We appreciate, Mr. Artman, you and Chairman Bailey for 
being here today and testifying and helping us out with this 
very important issue.
    The hearing record will remain open for two weeks from 
today.
    This hearing is adjourned.
    [Whereupon, at 11:25 a.m., the Committee was adjourned.]
                            A P P E N D I X

  Prepared Statement of Hon. Delores Pigsley, Chairman, Confederated 
                   Tribes of Siletz Indians of Oregon


































                                 ______
                                 
    Prepared Statement of Hon. Elaine Fink, Chairperson, North Fork 
                Rancheria of Mono Indians of California
    On October 3, 2007, Madera County Board of Supervisor Frank Bigelow 
came before this Committee to urge the Department of the Interior to 
end months of delay and publish the draft environmental impact 
statement (``EIS'') for the North Fork Rancheria on Mono Indians' 
(``North Fork'' or ``Tribe'') fee-to-trust and casino/hotel project. As 
Madera City Council member Gary Svanda testified in the follow-up 
hearing on May 22, 2008, the draft EIS was finally published on 
February 15, 2008, about a year after it had been completed.
    Now almost two years later, the Department is once again holding up 
the environmental review process for our project, this time by not 
publishing the final EIS that was completed approximately four months 
ago. While we understand that the Department is again reviewing its 
off-reservation gaming policy, that review should not delay publication 
of our final EIS. The final EIS must be published before the Secretary 
of the Interior can make a decision on our application; it is not the 
decision itself. Publication of the final EIS is not a decision on the 
merits and is not dependent upon any policy other than the requirements 
of the National Environmental Policy Act (NEPA).
    Our project complies with existing law and the commutability 
standard established in January 2008 under the prior Administration. 
The proposed site, identified in cooperation with local 
representatives, is less than 40 miles from the North Fork Rancheria. 
The rancheria itself is not a viable commercial site as it is located 
on a steep hillside in the Sierra foothills and is held in trust for a 
few individual residents and not for the Tribe. Although the proposed 
site may be eligible for gaming as restored lands, we are proceeding 
through the more difficult and transparent Secretarial two-part process 
of Section 20 of the Indian Gaming Regulatory Act.
    It is hard to understand the delay, especially in light of current 
economic conditions. Our project would create over 4,000 jobs in an 
area with among the highest unemployment rates in the Nation. It would 
also generate millions of dollars in revenue for state and local 
government under our Tribe's compact with the Governor of California 
and binding agreements with the County of Madera, the City of Madera, 
and the Madera Irrigation District. Further, the project would generate 
additional revenues for tribal programs and services for our 1,800 
tribal citizens and, under our compact, for the more than 600 tribal 
members of the Wiyot Tribe in Northern California coast.
    The delay makes no sense in terms of law or policy, and is very 
costly to our Tribe, which is the largest restored tribe in California. 
Interest continues to accrue on the significant development expenses we 
have incurred since early 2004, including purchasing the land and 
paying for the environmental review. The local community has been 
incredibly supportive of our project and vision for the region, but 
they and our own tribal citizens are growing increasingly frustrated by 
the delay. Each day of delay costs the community approximately $275,000 
in economic activity and denies jobs and opportunity to our tribal 
citizens and local residents.
    We understand that our project is not the only one being delay. The 
Department has not taken any action on any off-reservation project for 
months. Although we had high hopes that we would not face unnecessary 
bureaucratic delays in the new Administration, there is, in effect, a 
moratorium on taking lands into trust for gaming purposes. It is our 
hope that this Committee can help bring to light the nature and extent 
of the current delay as it is grossly unfair to our Tribe and contrary 
to existing law and policy.
    Thank you for the opportunity to comment.
                                 ______
                                 
Prepared Statement of Glenda Nelson, Chairperson, Estom Yumeka Maidu of 
                 the Enterprise Rancheria of California
    Since 2002, the Estom Yumeka Maidu of the Enterprise Rancheria 
(``Tribe'') has been pursuing the long and difficult process to have 40 
acres of land taken into trust for a resort casino and hotel. The 
proposed site is located in a rural, voter-approved Sports and 
Entertainment Zone in Yuba County in the Central Valley. It would 
replace the 40 acres we lost when Congress authorized the sale of one 
of our two 40-acre rancherias to the State of California to become part 
of Lake Oroville as part of a large water project. The site is located 
approximately 35 miles from our remaining rancheria, which is located 
in a remote area of the foothills over an ancient Maidu village.
    Despite having identified a flat hayfield that the voters had 
already approved for development, the federal environmental review 
process for the site has now taken almost eight years. After preparing 
an environmental assessment, we agreed to pay for the preparation of an 
environmental impact statement (``EIS'') after the Department changed 
its policy. We were then delayed while the prior Administration 
developed its Guidance Memo of January 3, 2008. After our project was 
deemed to be within a commutable distance of our ``reservation'', the 
draft EIS for our project was published on March 21, 2008.
    Since at least June 2009, the final EIS for our project has been 
ready for publication. Yet despite representations to the contrary, the 
final EIS remains unpublished. While we understand that the Department 
is again reviewing its off-reservation gaming policy, that review 
should not delay publication of our final EIS. Publication of the final 
EIS is not a decision on the merits and is not dependent upon any 
policy other than the requirements of National Environmental Policy Act 
(NEPA).
    Our project would create over 4,000 jobs in an area with among the 
highest unemployment rates in the Nation. It would also generate 
millions of dollars in revenue in economic development and provide 
additional revenues to the County of Yuba and City of Marysville under 
our binding agreements with both jurisdictions. Importantly, the 
project would generate new revenues for tribal programs and services 
that would benefit our nearly 800 tribal members.
    Our project complies with existing law and the commutability 
standard established in January 2008 under the prior administration. We 
are seeking to qualify the land for gaming under the difficult and 
transparent Secretarial two-part process of Section 20 of the Indian 
Gaming Regulatory Act. Ironically, neighboring tribes that were 
terminated, including some who oppose our project for competitive 
reasons, have not had to navigate this difficult process and 
consequently their members have for years benefitted from Indian 
gaming. We are glad for their success, but are anxious to advance the 
interests of our members through economic development and help end the 
generations of poverty and despair through which many have suffered.
    We understand that our project is not the only one being delay. The 
Department has not taken any action on any off-reservation project for 
months. Although we had high hopes that we would not face unnecessary 
bureaucratic delays in the new Administration, there is, in effect, a 
moratorium on taking lands into trust for gaming purposes. It is our 
hope that this Committee can help bring to light the nature and extent 
of the current delay as it is grossly unfair to our Tribe and contrary 
to existing law and policy.
    Thank you for the opportunity to comment.
                                 ______
                                 
Prepared Statement of the Intertribal Monitoring Association on Indian 
                           Trust Funds (ITMA)
    The Intertribal Monitoring Association on Indian Trust Funds (ITMA) 
is a representative organization of the following 65 federally 
recognized tribes: Absentee Shawnee Tribe, Alabama Quassarte Tribe, 
Blackfeet Tribe, Central Council of Tlingit & Haida Indian Tribes of 
Alaska, Chehalis Tribe, Cherokee Nation of Oklahoma, Cheyenne River 
Sioux Tribe, Chippewa Cree Tribe of Rocky Boy Reservation, Coeur 
D'Alene Tribe, Confederated Salish & Kootenai Tribes, Confederated 
Tribes of Colville, Confederated Tribes of Warm Springs, Confederated 
Tribes of Umatilla, Confederated Tribes of Yakama Nation, Crow Tribe, 
Eastern Shoshone Tribe, Ewiiaapaayp Band of Kumeyaay Indians, Fallon 
Paiute-Shoshone Tribe, Forest County Potawatomi Tribe, Fort Belknap 
Tribes, Fort Bidwell Indian Community, Fort Peck Tribes, Grand Portage 
Tribe, Hoopa Valley Tribe, Hopi Nation, Iowa Tribe, Jicarilla Apache 
Nation, Kaw Nation, Kiowa Tribe, Kenaitze Indian Tribe, Lac Vieux 
Desert Tribe, Leech Lake Band, Mescalero Apache Tribe, Metlakatla 
Tribe, Muscogee Creek Nation, Nez Perce Tribe, Northern Arapaho Tribe, 
Northern Cheyenne Tribe, Ojibwe Indian Tribe, Oneida Nation of 
Wisconsin, Osage Tribe, Passamaquoddy-Pleasant Point Tribe, Penobscot 
Nation, Pueblo of Cochiti, Pueblo of Laguna, Pueblo of Picuris, Pueblo 
of Sandia, Quapaw Tribe, Quinault Indian Tribe, Red Lake Band of 
Chippewa Indians, Sac and Fox Tribe, Salt River Pima-Maricopa Indian 
Tribe, San Pasqual Band of Mission Indians, Sault Ste. Marie Tribe of 
Chippewa Indians, Shoshone-Bannock Tribes, Sisseton-Wahpeton Oyate 
Tribe, Soboba Band of Luiseno Indians, Southern Ute Tribe, Thlopthlocco 
Tribal Town, Three Affiliated Tribes of Fort Berthold, Tohono O'odham 
Nation, Turtle Mountain Band of Chippewa, Walker River Paiute Tribe, 
Winnebago Tribe of Wisconsin, and the Yurok Tribe.
    Mr. Chairman and members of the Committee, ITMA is pleased to 
present our views regarding backlogs at the Department of the Interior. 
My name is Michael Finley and I am the Chairman of the Colville 
Business Council, the governing body of the Confederated Tribes of 
Colville Reservation located in Washington state. I also serve as 
Chairman of the Intertribal Monitoring Association on Indian Trust 
Funds, and I offer this testimony on behalf of ITMA.
    Established in 1990, ITMA is a national Tribal consortium, the 
membership of which consists of 66 federally recognized Indian Tribes. 
ITMA's mission includes monitoring the United States' trust reform 
efforts and providing a forum for Tribal consultation on trust issues. 
Consistent with its mission, ITMA conducts continuous outreach 
activities to inform Tribes and individual beneficiaries of the status 
of trust reform efforts within the Department of the Interior and 
reform efforts undertaken in Congress.
    ITMA has undertaken a number of projects over the years in 
furtherance of its mission. For example, pursuant to a Cooperative 
Agreement with the Department, ITMA participated in a joint effort with 
the Office of Historical Trust Accounting to develop a methodology that 
could be used, among other things, to assist the United States and 
participating Indian tribes to reach agreement on the balances of the 
tribes' trust accounts. This project, called the ``Tribal Trust Fund 
Settlement Project,'' resulted in the development of a methodology 
available to Indian tribes for use in pending trust fund related 
lawsuits. That methodology was completed in July 2008 and is currently 
being used by Indian tribes and the United States as a tool to resolve 
tribal trust claims.
    During the past six years, ITMA has conducted 18 Listening Sessions 
throughout Indian Country to obtain input from Indian tribes and 
individual Indians regarding the Department's administration of Indian 
trust funds and trust land. At these Listening Sessions, tribal leaders 
and Indian beneficiaries often mention delays that they experience in 
getting land taken into trust and other transactions involving Indian 
trust land.
    One of the areas that has received significant attention at ITMA's 
Listening Sessions of late has been appraisals. The Department of the 
Interior requires a formal appraisal for nearly all transactions 
involving Indian trust land. Indian tribes and individuals have noted 
delays in obtaining appraisals of trust lands, an inability to 
determine why appraisals are delayed, and the fact that the costs of 
appraisals are borne by Indian landowners. With the continued focus on 
economic development on Indian lands, when and under what circumstances 
appraisals are required and the ability of Indian beneficiaries to 
obtain them in a timely manner has become a subject of increasing 
interest. Although the BIA and the Office of the Special Trustee have 
significantly reduced the backlog of appraisal requests in calendar 
year 2009, Indian beneficiaries have expressed a desire to have the 
appraisal process streamlined on a going-forward basis.
    With this in mind, ITMA has submitted a proposal to the Department 
to facilitate a small work group to develop policy, regulatory and 
legislative options to promote Indian trust land consolidation and 
reduce fractionated land ownership. Part of this proposal will examine 
the current process for obtaining appraisals. The work group will meet 
over a six-month period and will identify and review existing policies 
and regulations that may inhibit trust land consolidation and, where 
appropriate, suggest revisions of these policies, including appraisal 
policies. The workgroup will also develop additional regulatory and 
legislative proposals to streamline and facilitate land consolidation, 
with the intent of presenting a package of suggestions to the 
Department for consultation with Indian Country.
    This proposal has been well-received by the Department and ITMA 
expects to begin this project in early 2010. ITMA is hopeful and 
optimistic that such an in-depth review of these regulatory policies 
will result in recommendations that can be implemented quickly and that 
will alleviate many of the delays that Indian beneficiaries experience 
when trying to complete transactions involving Indian trust land. ITMA 
stands ready to serve as a resource for the Committee as it explores 
these and other issues in connection with today's hearing, and we 
appreciate the opportunity to provide this statement for the record.
   Prepared Statement of Hon. Matthew J. Box, Chairman, Southern Ute 
                         Indian Tribal Council


















   Prepared Statement of Hon. Michael Finley, Chairman, Confederated 
                   Tribes of the Colville Reservation
    Good afternoon Chairman Dorgan, Vice Chairman Barrasso, and members 
of the Committee. My name is Michael Finley and I am the Chairman of 
the Colville Business Council, the governing body of the Confederated 
Tribes of the Colville Reservation (``Colville Tribes'' or ``Tribe''). 
I appreciate this opportunity to provide written testimony on 
Department of the Interior backlogs.
    My written statement will focus on three issues that have 
contributed to backlogs and have greatly hindered the ability of the 
Colville Tribes and other tribes, both in the Northwest Region and 
nationally, to have land taken into trust: (1) the overly restrictive 
requirements associated with preparation of environmental site 
assessments; (2) unnecessary and burdensome BIA region-specific 
policies that make the fee-to-trust process more expensive; and (3) 
funding. We also provide some recommendations on how these problems can 
be alleviated. Collectively, these issues have contributed to a backlog 
at the Colville Agency of nearly 100 parcels of tribally owned land 
that have yet to be taken into trust.
    The Colville Indian Reservation encompasses approximately 2,275 
square miles and is in north-central Washington State. Although now 
considered a single Indian tribe, the Confederated Tribes of the 
Colville Reservation is, as the name states, a confederation of 12 
aboriginal tribes and bands from all across eastern Washington. The 
Colville Tribe has nearly 9,300 enrolled members, making it one of the 
largest Indian tribes in the Pacific Northwest. About half of the 
Tribe's members live on or near the Colville Reservation. Like many 
land-based Indian tribes, the Colville Tribe is continually seeking to 
restore its land base by purchasing fee properties within the 
boundaries of its reservation and having these properties acquired in 
trust.
Environmental Site Assessments in the Fee-to-Trust Process
    One of the requirements for fee-to-trust applications is the 
preparation of a Phase I Environmental Site Assessment (ESA). The 
federal Superfund law, the Comprehensive Environmental Response, 
Compensation and Liability Act (CERLCA), establishes a liability scheme 
for determining who can be held accountable for releases of hazardous 
substances on real property. CERCLA provides for an ``innocent 
landowner'' defense to liability if a landowner conducts due diligence 
prior to obtaining real property. Preparation of an ESA allows a 
landowner to take advantage of this defense by assessing the prior 
uses, ownership, and conditions on a given parcel of land.
    In 2005, the Environmental Protection Agency (EPA) promulgated new 
regulations for how ESAs are prepared. See 40 C.F.R. Part 312. Among 
other things, the 2005 regulations created a new requirement that 
specific elements of ESAs must be prepared, or updated, within 180 days 
of the date of acquisition. Prior to the 2005 rule, ESAs were valid for 
up to 12 months with the possibility of exceptions for longer periods 
for property located in adverse climatic or geographical areas. See 602 
DM 2. The 2005 regulations also created new, more stringent educational 
and professional qualifications for individuals who can prepare ESAs. 
Prior to 2005, the BIA determined whether an individual was qualified. 
It is unclear whether or to what extent the BIA was involved in the 
promulgation of this rule.
    The 2005 EPA rule has brought nearly all of the fee-to-trust 
activity at the Colville Agency to a standstill. Not only are the 
Colville Tribes and other tribes expected to pay for the preparation of 
ESAs, this expense is often multiplied because the ESAs expire and must 
be updated (at additional expense) for reasons wholly outside the 
tribes' control. To make matters worse, and as discussed below, the 
Colville Tribes and all other tribes within the NW Region are 
prohibited from using their own employees to prepare ESAs because of a 
conflict of interest policy specific to the Northwest Regional office 
that prohibits tribal members from preparing ESAs for their own tribes.
    In short, the current regime for preparing ESAs for Indian trust 
land acquisitions is unduly burdensome and accommodations must be made 
to allow the fee trust process to proceed as quickly as possible and 
with the least expense on tribes. Because of the expense involved and 
the prospect for expiration of the ESAs, the Colville Agency has not--
apart from fractionated interests for which ESAs are not required--had 
a single fee-to-trust application approved since the EPA rule became 
effective in 2005.
Obstacles Imposed by BIA Regional Offices Contribute to Backlogs
    Another aspect of the fee-to-trust process that contributes to 
backlogs are fee-to-trust requirements that are unilaterally imposed by 
individual BIA Regional offices. These policies, which affect those 
tribes located within the respective region, are often longstanding 
practices that may or may not have been reduced to writing or subjected 
to review by the BIA's central office. Often, these policies are ``just 
they way they have always done things'' but are, for practical 
purposes, very difficult to rescind once institutionalized at the 
regional office level.
    The Colville Tribe is served by the BIA's Northwest Regional Office 
in Portland, Oregon. The Northwest Region covers all tribes in 
Washington, Oregon, Idaho, and some tribes in Alaska and Montana. By 
way of example, the Northwest Region has in effect two policies that 
impose additional burdens on the fee-to-trust process:

        A. Conflict of Interest Policy for ESAs: Separate and apart 
        from the 2005 EPA Rule, the BIA's Northwest Regional Office 
        adheres to a longstanding policy that it will not accept ESAs 
        prepared by Indian tribes and their employees on tribally owned 
        properties in fee-to-trust applications because tribes ``have 
        organizational conflicts of interest'' with respect to these 
        actions. The Colville Tribe understands that this policy exists 
        out of the Northwest Regional Office's concern that tribal 
        members have a motivation to conceal potential contaminants in 
        ESAs so as to transfer any burden for cleanup to the United 
        States. Given the large number of tribal members who work for 
        the BIA at their own tribes' agencies, how and why such an 
        outdated policy continues to exist remains a mystery.

        B. Chain of Surveys and Land Description Review Policy: A 
        December 5, 2007, memorandum from the Northwest Regional Office 
        directed that for all fee to trust applications, the tribal or 
        individual applicant must have either the Bureau of Land 
        Management (BLM) or a Certified Federal Land Surveyor prepare 
        (1) a chain of surveys; and then (2) pay to have BLM perform a 
        land description review. The memorandum explicitly states that 
        ``[a]ll costs associated with these reviews are the applicant's 
        responsibility.'' This memorandum was apparently issued because 
        of an isolated instance in which a parcel was taken into trust 
        and it was belatedly discovered that the parcel's legal 
        description contained a discrepancy. The Colville Tribe 
        understands that while the December 5 memorandum by its terms 
        applies to all fee-to-trust applications it is, for practical 
        purposes, intended for fee-to-trust applications that involve 
        parcels located in urban areas or that otherwise have unique or 
        complex circumstances. Against this backdrop, to impose these 
        requirements on all tribal and individual fee-to-trust 
        applications is overly broad and unfair. For the Colville 
        Tribes and other tribes in the Northwest Region that only seek 
        to consolidate their tribal land bases, compliance with this 
        policy is nothing more than an added and unnecessary expense.

    These are but two examples of outdated or burdensome policies that 
one BIA region has in place that affect tribes in that region. There 
are likely countless other such policies scattered throughout the other 
BIA regional offices.
Funding
    Finally, the Colville Tribe notes that in previous years funding 
was available for Indian tribes, at least in the Northwest Region, to 
conduct ESAs, cadastral surveys, and other required elements of the 
fee-to-trust process. This funding has largely disappeared as budgets 
for trust programs were cut in the last Administration. The Tribe is 
hopeful that the Administration will ensure that future budget requests 
include increases for trust programs. That Indian tribes such as the 
Colville Tribes are now being forced to use tribal funds for functions 
that were either formerly performed by the BIA or for which funding was 
previously made available is not, in our view, consistent with the 
United States' trust responsibility.
Recommendations
    The Colville Tribe has asked the BIA to immediately rescind both of 
the Northwest Region policies described above and understands that the 
BIA is currently reviewing them. For the conflict of interest policy 
and the preparation of ESAs generally, the Tribe has suggested to the 
BIA that a more reasonable approach would be to allow tribal members, 
after undergoing a certification or training program provided by the 
BIA, to conduct ESAs for parcels that have not been used for commercial 
purposes. The Affiliated Tribes of Northwest Indians and the National 
Congress of American Indians have both enacted resolutions at their 
respective 2009 annual conferences that support these recommendations. 
The Colville Tribe is hopeful that such a program can be implemented.
    The Colville Tribe believes it is imperative that the Department 
conduct a thorough review of all policies enacted by BIA regional 
offices to identify those policies that are outdated, unnecessary, or 
not required by the fee-to-trust regulations. After the policies are 
identified, the BIA's political leadership must be willing to rescind 
those policies, even if it means doing so over the objections of the 
respective regional directors.
    The Colville Tribe appreciates the opportunity the submit this 
statement for the record. If you or your staff have any questions or 
would like additional information, please feel free to contact me.

                                  
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