    [Senate Hearing 111-923]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 111-923

                      H.R. 4347, TO AMEND THE INDIAN SELF-
      DETERMINATION AND EDUCATION ASSISTANCE ACT TO PROVIDE FURTHER SELF-
              GOVERNANCE BY INDIAN TRIBES, AND FOR OTHER PURPOSES

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

                                    HEARING

                                   before the

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 SECOND SESSION

                                   __________

                               NOVEMBER 18, 2010

                                   __________

             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 November 18, 2010................................     1
    Statement of Senator Barrasso....................................     2
    Statement of Senator Cantwell....................................     5
    Statement of Senator Dorgan......................................     1
    Statement of Senator Franken.....................................     3
    Statement of Senator Tester......................................     4
    Statement of Senator Udall.......................................     5

                                   Witnesses

    Allen, Hon. W. Ron, Tribal Chairman/CEO, Jamestown S'Klallam
      Tribe; Chairman, Self-Governance Communication and Education
      Tribal Consortium; and Chairman, Title IV--DOI Amendments
      Tribal Workgroup; accompanied by: Geoffrey Strommer, Partner,
      Hobbs, Strauss, Dean and Walker................................    13
        Prepared statement with attachment...........................    16
    Micklin, Hon. Will, First Vice-President, Central Council of
      Tlingit and Haida Indian Tribes of Alaska......................    26
        Prepared statement...........................................    29
    Skibine, George, Acting Principal Deputy Assistant Secretary for
      Indian Affairs, U.S. Department of the Interior; accompanied by
      Sharee Freeman, Director, Office of Self-Governance............     6
        Prepared statement...........................................     8

                                    Appendix

    Boren, Hon. Dan, U.S. Representative from Oklahoma, prepared
      statement......................................................    39
    Reffalt, William C., Vice President/Issues Coordinator, Blue
      Goose Alliance, prepared statement.............................    40
    Response to written questions submitted by Hon. John Barrasso to:
        Hon. W. Ron Allen............................................    43
        Hon. Will Micklin............................................    49
    Response to written questions submitted by Hon. Byron L. Dorgan
      to:
        Hon. W. Ron Allen............................................    41
        Hon. Will Micklin............................................    45
    Written questions submitted to George Skibine....................    50

                        H.R. 4347, TO AMEND THE INDIAN
                       SELF-DETERMINATION AND EDUCATION
    ASSISTANCE ACT TO PROVIDE FURTHER SELF-GOVERNANCE BY INDIAN TRIBES, AND
                               FOR OTHER PURPOSES

                                  ----------

                          THURSDAY, NOVEMBER 18, 2010

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:42 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. We will now turn to the hearing. The hearing
    itself that we have scheduled for today will come to order.
    This Committee is holding a hearing on H.R. 4347, the
    Department of the Interior Tribal Self-Governance Act of 2010.
    This is a piece of legislation that makes changes in the self-
    governance program at the Department of the Interior.
        The Indian Self-Determination Act I think has been one of
    the most important pieces of legislation for tribes and for
    tribal sovereignty. This legislation allows tribes to take
    control of programs that were previously administered by the
    Federal Government. When tribes administer these programs, it
    gives them the ability to provide jobs in their communities and
    decide themselves the best way to deliver services and programs
    to their tribal members.
        Today we have over 300 Indian tribes that are participating
    in the self-governance program with either the Department of
    the Interior or the Indian Health Service at Health and Human
    Services. Although the program has been successful for tribes
    over the past several years, Congress, tribes and the
    Administration have been discussing ways to improve the self-
    governance process. H.R. 4347 is the result of many of those
    discussions.
        The bill would improve the contract negotiation process
    between the tribes and the Department of the Interior. It would
    streamline funding processes and it would provide deadlines for
    the Department to respond to tribes.
        The bill passed the House of Representatives by unanimous
    consent in September and appears to have a good level of
    support from both Congress and the tribes. The Administration
    has expressed still a few outstanding concerns about the bill.
    So I thought it was important to hold a hearing to get their
    views. But I hope we will be able to move quickly on this bill
    following the hearing, because time is running very short in
    this session.
        Mr. George Skibine is here with us today on behalf of the
    Department of the Interior to present the agency's views on the
    bill. We will also hear from Ron Allen, who represents several
    self-governance organizations and who has been working on this
    issue for a number of years. Finally, we will hear from Will
    Micklin, who will represent the Central Council of Tlingit and
    Haida Tribes of Alaska. The Central Council was one of the
    earliest groups to take advantage of self-governance, and will
    discuss their experiences with the program and make
    recommendations for how to proceed and how this process could
    be improved through this legislation.
        I want to mention that I have a statement for the record
    from Congressman Dan Boren who introduced the bill in the
    House. He has been a big supporter in making changes to the
    self-governance program. Congressman Boren's statement will be
    entered in the official record, and I will also encourage any
    other interested parties who wish to include written comments
    or even submit written comments here to this Committee to do
    so.
        We will keep the hearing record open for two weeks from
    today.
        And with that, I want to welcome the witnesses. I know that
    my colleague, Senator Barrasso, has some comments. I would
    recognize comments from anyone else on the Committee as well.
    Senator Barrasso?

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

        Senator Barrasso. Thank you very much, Mr. Chairman, for
    holding what may be your last hearing as Chairman of this
    Committee. I want to begin by thanking you, Mr. Chairman, for
    your many years of public service and for your dedication to
    the people of North Dakota and Indian Country.
        In all my time in this Committee, and it has only been a
    little over three years, you have consistently demonstrated the
    strongest possible commitment and dedication to our often
    complex and challenging business. While we have not always
    agreed on the methods for meeting the challenges of Indian
    Country, we have always agreed on the fundamental goal:
    improving the health, the safety and the lives of our Nation's
    Indian people. And recognizing our common goal, you have always
    embraced the non-partisan, bipartisan spirit which has become a
    part of the institutional history of the Senate Committee on
    Indian Affairs.
        And I want you to know, Mr. Chairman, that I really
    appreciate that. I appreciate your hard work. I congratulate
    you on your many successes as Chairman of this Committee. And
    those include, but are by no means limited to your work in
    advancing public safety, in advancing health and education in
    Indian Country. It has truly been an honor to work with you on
    those issues. Although I know that there is still work to do in
    the last days of this Congress and in your office, I just want
    to express my heartfelt thanks and my appreciation to you
    today. I would ask that the members of this Committee, as well
    as the members of the audience, join me in thanking you for
    your incredible service.
        [Applause.]
        The Chairman. Well, Senator Barrasso, now I am profoundly
    embarrassed at those excessive--does anyone else have any
    comments, other than about the Chairman?
        [Laughter.]
        The Chairman. Thank you very much. I would just say to you,
    I have had the opportunity to work with Senator McCain as
    either Chair or Vice Chair, Senator Murkowski, Senator
    Barrasso. But more importantly, with so many other members of
    this Committee, who come to this Committee really understanding
    that we have the First Americans living in third world
    conditions in too many parts of this Country. We are dedicated
    and determined and have been for a long, long while to make
    changes that give them opportunity.
        So it has been a very proud moment for me in this part of
    my life to work on these issues. I intend in other ways to
    continue the work with Native Americans. I really appreciate
    the work of the people who have come to this Committee and made
    a big difference on the Committee.
        Senator Franken?

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

        Senator Franken. I was going to make a similar statement
    about the Chairman, though not one that would pull applause and
    a standing ovation, which the Ranking Member so effectively
    did. But similar sentiments.
        I would like to talk about the principles of self-
    determination and self-governance. They are a major cornerstone
    of Federal Indian policy today. There is no question about it.
    No one knows the needs of a sovereign Indian tribe better than
    the tribe itself.
        Minnesota tribes are the national leaders in self-
    determination and self-governance. Mille Lacs and Red Lake were
    two of the first ten tribes to establish self-governance
    compacts with the Federal Government in the 1980s. They have
    been running their own programs for years.
        The first meeting I ever had was with Fond du Lac, and the
    first with the tribes in Minnesota. Karen Diver, the Chair of
    Fond du Lac, the first thing she said to me was, you got to
    know sovereignty. And she pointed me to a study written at the
    Kennedy School, which I went home and immediately read, about
    all the benefits of sovereignty.
        We need to make sure that the Federal Government is an
    effective partner to tribes like Red Lake and Mille Lacs. This
    means everything from providing technical support,
    appropriating adequate funding for contract support costs and
    making sure the Bureau of Indian Affairs and the Indian Health
    Service makes decisions and responds to tribes within a
    reasonable amount of time.
        The bill under consideration today seeks to address some
    longstanding issues that have made it difficult for tribes in
    Minnesota to run their own programs effectively. Mille Lacs,
    the Mille Lacs band and the Red Lake Nation helped craft this
    legislation language in earlier Congresses. They are eager to
    see this bill move forward, and I am looking forward to hearing
    your thoughts on the bill today.
        I apologize, I am going to have to leave early because I
    have to go to another hearing. But I will submit my questions
    for the record.
        Thank you, Mr. Chairman, and again, not to embarrass you,
    but it has really been an honor being on this Committee with
    you as Chair.
        The Chairman. Senator Franken, thank you very much.
        Before I call on Senator Tester, let me just say that I
    neglected to mention Senator Inouye and Senator Ben Nighthorse
    Campbell. I should have. I have been enormously proud to serve
    with them while they were Chair of this Committee. All of them
    have done a wonderful job. It is part of the wonderful
    privilege of serving here to be able to serve with people like
    that. So let me be sure to mention Senator Inouye and Senator
    Campbell.
        Senator Tester?

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

        Senator Tester. Thank you, Mr. Chairman. I do also want to
    associate myself with the remarks of the Ranking Member. I
    think he said it very well. On behalf of the seven reservations
    in Montana and the eight, nine, ten or eleven tribes, depending
    on how we want to count, I want to say thank you. When I go
    back to Montana, they say thank you to you, and for the good
    work that you have done.
        I remember the hearing we had on Crow on health care, and
    the little girl that was, well, enough said. I will just say
    that I appreciate your work in the many, many areas on this
    Committee as Chairman. I think if you look at the work that was
    accomplished by this Committee under your leadership, it is
    very, very impressive.
        I also want to talk about self-governance, self-
    determination, the bill we are going to hear about today. It
    has had a positive effect in Indian Country, but that does not
    mean we do not need to work to make it better. Absolutely,
    unequivocally, there are some issues with it, I think, that
    Native Americans have, that taxpayers have, that quite frankly
    the folks that implement it have. I look forward to hearing
    from our witnesses today. I want to thank you for taking time
    to be here, so that we can make this better.
        I always think back to Chairman Carl Venne of the Crow, who
    passed away here a year or maybe it has been two now, who said,
    all I want is the tools to be able to be successful, and then I
    want you to just get out of the road, and we will go. I think
    that is what this is about, giving Indian Country the tools
    they need to be successful, and they will solve the problems.
        Thank you very much, Mr. Chairman.
        The Chairman. Senator Cantwell?

                   STATEMENT OF HON. MARIA CANTWELL,
                      U.S. SENATOR FROM WASHINGTON

        Senator Cantwell. Thank you, Mr. Chairman, and I too want
    to add my thanks for the many visits that you paid to the
    Pacific Northwest. I think you ate a lot of salmon, and we
    appreciate that.
        [Laughter.]
        Senator Cantwell. And you visited many of our Indian
    Country sites with the leadership from surrounding tribes
    participating. There is nothing that really replaces that on
    the ground visit and experience, to see some of the challenges.
    I want to personally thank you for your dedication to Indian
    health care, and the fact that we were able to be successful in
    moving very important legislation there, and for your continued
    dedication on making sure that we improve the governance of
    Indian Country.
        I want to thank the witnesses for being here today,
    particularly Ron Allen from the Jamestown S'Klallam. They were
    one of the first of nine tribes to really take advantage of
    Indian self-determination. And today, that small group has now
    grown to something like 282 federally-recognized tribes. The
    number could be even higher, if this legislation is passed and
    the barriers to expand self-governance that are in the Title IV
    of the Self-Determination and Education Assistance Act are
    eliminated.
        So while there are a large number of tribes taking
    advantage of the flexibility and efficiency of these compacts
    with the Department, we obviously have to do more in this area.
    So I look forward to hearing from the witnesses today and their
    input on this. The changes that this bill would make to Title
    IV, including the requirement of the BIA to respond to final
    offers within 60 days, negotiate in good faith and require
    amendments to compacts should be agreed to. I think these
    provisions and many other changes are common sense changes
    needed to fully implement the original goals that we had for
    self-determination.
        Again, I thank the Chairman for holding this hearing, and
    moving this legislation through the process.
        The Chairman. Thank you.
        Senator Udall?

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

        Senator Udall. Thank you, Chairman Dorgan. Let me also
    associate myself with all the comments that have been made from
    our colleagues, including Ranking Member Barrasso, on your
    performance and your accomplishments here. I think you should
    be incredibly proud. The 12 years I have been in Congress,
    Chairman Dorgan, we have been fighting for that Indian Health
    Care Improvement Act, and always back and forth between the
    House and the Senate.
        I think you and the members of this Committee have finally
    gotten that done, and the Tribal law and Order Act and water
    settlements. And I know that you are still working now to the
    very end to see that we get some of these other things done,
    which are kind of pending out there in the lame duck.
        So congratulations on what I think has been one of the most
    productive periods for Native American legal and legislative
    accomplishments.
        Let me just say on the issue of self-governance, I really
    look forward to the witnesses. This is a good set of witnesses
    that I think can tackle this issue.
        One of the major points for me on self-governance is how
    far we have come. If you look, Ron, we were just at the
    National Congress of American Indians in Albuquerque. That
    Congress was started as a result of the assimilation and
    termination policies of the Federal Government back in 1944. If
    you look over the years, we have had dramatic improvements in
    self-governance, the development of tribal leaders. The tribes
    should be so, so proud of that. We look forward to working with
    all of you to further improve and make sure that we give you
    the tools to move forward.
        So thank you very much, Chairman Dorgan, once again.
        The Chairman. Senator Udall, thank you very much.
        Mr. Skibine, welcome. You have testified many times before
    this Committee on a range of issues. You have done a lot of
    good work down at the Department and we welcome you today.
        You are accompanied by Sharee Freeman, who is the Director
    of the Office of Self-Governance. You are the Acting Principal
    Deputy Assistant Secretary for Indian Affairs. We appreciate
    both of you being here. We will hear your testimony. The
    written testimony of all three of the witnesses will be
    included in the record in full, and we would ask all to
    summarize.
        Mr. Skibine, you may proceed.

             STATEMENT OF GEORGE SKIBINE, ACTING PRINCIPAL
            DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS,
             U.S. DEPARTMENT OF THE INTERIOR; ACCOMPANIED
                BY SHAREE FREEMAN, DIRECTOR, OFFICE OF
                            SELF-GOVERNANCE

        Mr. Skibine. Thank you, Mr. Chairman, Vice Chairman
    Barrasso, members of the Committee.
        It is a pleasure for me to be here today to appear before
    you and discuss the Department of Interior's views on H.R.
    4347, the Tribal Self-Governance Act, H.R. 4347, which seeks to
    amend both Title I and Title IV of the Indian Self-
    Determination and Education Assistance Act.
        Let me begin by saying that the Administration and
    Secretary Salazar and Assistant Secretary Echo Hawk are very
    strong supporters of the self-determination and self-governance
    program and what it has done for Indian tribes. As stated
    earlier, the program started with just a few tribes, not that
    long ago, and now it has 260 some tribes that participate.
        At Interior, Sharee Freeman, our Director of Self-
    Governance, administers the program out of her office here in
    D.C. with fairly limited staff. I think she has done an
    incredible job in doing that, given the amount of millions of
    dollars that pass through her office to go to Indian tribes.
        So the Administration's strong support has meant that we
    tried over the years, and I have at numerous times met with
    Chairman Allen and members of his Title IV task force to
    essentially try to come to agreements in amending Title IV for
    the purposes that the tribes want them to do. We started in the
    middle of the Bush Administration to have meetings. They
    weren't really going anywhere for a while, and then we made a
    push for it, and I think we almost got there after numerous
    meetings with the self-governance tribal group.
        But at the time, the Bush Administration was really opposed
    to making mandatory compacts with non-BIA agencies. That was
    really one of the pushes of the initial bill. It was a non-
    started for the Bush Administration, so we were really unable
    to do that. When the bill was re-introduced in the House here,
    I think that provision was gone in terms of that. And many,
    many of the provisions that we objected to were taken out.
    There was a pilot project that the Administration opposed when
    we testified in front of the House. That has been removed. So I
    think we have come a long way.
        At the end of the session, the House passed a substitute
    bill that although taking some of our objections into
    consideration injected additional provisions which we had not
    agreed to. As a result, there have always been a few of the
    provisions in there on which the tribes and the Administration
    have simply not come to agreement. So we were not very far, but
    essentially there is still some work to do.
        So even though today we cannot support the bill as passed
    by the House, I think that we are fairly close and I think we
    would like to work with the tribes to be able to come to an
    agreement. We met with members of the staff here before this
    hearing and essentially articulated to the staff what our
    concerns were, concerns with the bill as passed by the House.
    So essentially, that is where we are right now. It is close,
    but it is not quite there.
        The Chairman. Mr. Skibine, in your testimony, you say you
    met with our staff, told us what the concerns were. Summarize
    the concerns.
        Mr. Skibine. Yes, I will summarize some of the concerns
    that we have. For instance, we have a concern with the fact
    that the declination criteria of Title V that pertains to IHS
    were inserted in the bill. And that in fact, there is a 60-day
    time frame imposed on the government in order to approve a
    funding agreement, or list why, under the IHS declination
    criteria, it cannot go forward with it.
        Right now, for BIA, the tribe can choose to include in its
    funding agreement any provisions of Title I. So usually the
    declination criteria in Title I are included. On this bill, we
    have 90 days to approve or not. And it is deemed approved if we
    don't do anything after 90 days. We believe that the 90 day
    time frame that we have used for the past 25, 30 years in self-
    governance, the determination that was passed is more
    appropriate.
        I think the problem that we have with the IHS criteria is
    that right now, for non-BIA agencies, the entering into self-
    governance compact and funding agreement is discretionary, by
    and large discretionary. So if it doesn't work, they don't do
    it. But I think that by requiring those agencies to, at 60
    days, to disapprove or approve a final offer under specific
    declination criteria really makes it quite quasi-mandatory for
    them to do something.
        So I think there is some real concern, especially with the
    non-BIA agencies, over the import of that particular provision.
    I think in Indian Affairs, we prefer having the existing
    declination criteria and I think we also prefer to have the 90
    days.
        Some of the other concerns we have are that the bill
    requires a turnaround of 10 days from apportionment of the
    funds to the tribe. And although we understand that IHS does
    that, at the Department, our financial system is not geared up
    or designed to be able to do that. So we would not be able to
    comply with that provision. We think that it is not, at this
    point, essentially, we can't really support something that we
    cannot comply with because of the way our financial systems are
    devised.
        Another provision that is an issue is the issue with
    regulations. I think one of the time frames in the regulation
    says that the authority to regulate, to issue regulation,
    expires after, I think it is 24 months. I think that we have 18
    months to come up with proposed regs. So we think it will be
    impossible, based on past experience, to come up with final
    regulations six months after coming up with proposed
    regulations.
        Our experience with negotiated rulemaking, both with 638
    and self-governance, is that it takes an incredible amount of
    time to come up with these regs based on consultation with
    tribes. And that in effect, we would like to have a broader
    time frame.
        I remember that when I was involved in the negotiation
    rulemaking with 638 tribes, we also had a deadline in the Act,
    and we couldn't meet it. We had to come back to Congress to
    amend the Act just to provide more time. So that is a problem.
        Now, we also, I think, we have a problem with some of the
    reports that are required in the legislation. One of these
    reports, which I have told the self-governance tribes is a
    problem, is that we have to come up with a report identifying
    the amount of funds that we spend for inherently Federal
    functions. I think that practically, we would never be able to
    come up with this figure. Plus, it would be costly.
        So we think that to minimize cost and to make it more
    acceptable to the Administration, a provision that requires
    that and some other reports is unnecessary.
        Finally, although we have identified to the staff some
    other provisions, we have a concern from the non-BIA agencies
    in the section on construction. I think that with non-BIA
    agencies, especially Bureau of Reclamation, that the Bureau
    would like more involvement and ability to monitor construction
    contracts.
        So with that, I think that will essentially summarize my
    comments, unless, Sharee, you have anything to add at this
    point. And Sharee will be pleased to answer any of the
    questions that you may have.
        The Chairman. I have a lot of questions, actually.
        [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, Chairman Dorgan, Vice-Chairman Barrasso, and Members
    of the Committee. Thank you for the opportunity to appear before you
    today to discuss the Department of the Interior's Tribal Self-
    Determination and Self-Governance programs and H.R. 4347, the
    Department of the Interior Tribal Self-Governance Act. H.R. 4347 seeks
    to amend both Title I and Title IV of the Indian Self-Determination and
    Education Assistance Act (ISDEAA or Act) (25 U.S.C. 450 et seq.). While
    the Administration supports the principles of self-determination and
    self-governance, we cannot support the bill, H.R. 4347, as passed by
    the House, as it poses significant practical and legal problems with
    regard to appropriate management of federal funding and programs.
        President Obama recognizes that federally recognized Indian tribes
    are sovereign, self-governing political entities that enjoy a
    government-to-government relationship with the United States
    government, as expressly recognized in the U.S. Constitution. Secretary
    Salazar too is a strong supporter of the principle of tribal self-
    determination, the principles of ISDEAA, and is committed to working to
    fully enable tribal self-governance.
        Funding agreements under this Act have helped to strengthen
    government-to-government relationship with Indian tribes. We support
    appropriate strengthening of the existing ISDEAA to make it work better
    for the Federal government and for Indian tribal governments. Self-
    governance tribes have been good managers of the programs they have
    undertaken. Many times, tribal governments add their own resources to
    the programs and are able to fashion programs to meet their needs and
    the particular needs of their members. Tribal governments are often
    better suited than the Federal Government to address the changing needs
    of their members. Indian tribal governments have often observed that,
    when they are working under self-governance compacts and funding
    agreements, they are not viewed by the Federal government as just
    another Federal contractor, and that their work under funding
    agreements reflects a true government-to-government relationship
    characterized by mutually agreed-to responsibilities and tribal
    empowerment to make a program work.
        On June 9, 2010, the House Natural Resources Committee held a
    hearing on H.R. 4347, and on September 22, 2010 the bill passed the
    U.S. House of Representatives. This legislation deals, not only with
    funding agreements between tribal governments and the Bureau of Indian
    Affairs (BIA), but also funding agreements between tribal governments
    and non-BIA bureaus and offices within the Department. We are
    interested in discussing how to improve Title I and Title IV, but under
    this legislation, as passed by the House, the Secretary has little
    ability to maintain appropriate oversight of the programs that tribal
    governments assume from the Federal Government.
        The Department recognizes and appreciates that Indian tribal
    governments have worked diligently over the past decade to amend and
    improve Title IV of the ISDEAA. We recognize the need for this program
    to evolve to improve and increase the frequency of funding agreements.
    Since the House hearing in June on H.R. 4347, the Department has met
    and cooperated with legislative staff and tribal government
    representatives to discuss the Department's concerns with the bill.
    These efforts include:

       Four meetings or conference calls with legislative staff;

       E-mail correspondence with legislative staff;

       Two conference calls with representatives of tribal
            governments, and;

       One meeting with both legislative staff and tribal
            government representatives.

        We note, and appreciate, that the bill, as passed by the House,
    addresses some of the issues raised by the Department in earlier
    testimony. We request an opportunity to continue working with the
    Committee and tribal government representatives to discuss the
    Department's concerns. With further dialogue and information exchanges,
    this bill could be significantly improved.
        My statement will begin with a brief discussion of the history of
    the ISDEAA. I will then discuss some examples of successes that the
    Department has recently had under the enacted ISDEAA. Finally, I will
    conclude with a discussion of general and specific concerns with the
    bill.
    Background
        In 1988, Congress amended the ISDEAA by adding Title III, which
    authorized the self-governance demonstration project. In 1994, Congress
    again amended the Act by including Title IV, which established a
    program within the Department to be known as Tribal Self-Governance.
    The addition of Title IV made self-governance a permanent option for
    tribes. These amendments, in section 403(b), authorized federally
    recognized tribes that meet criteria established for the program, to
    negotiate funding agreements with the Department for programs,
    services, functions or activities administered by the BIA. Within
    certain parameters, the amendments authorized funding agreements with
    other bureaus of the Department. In 2000, the Act was amended again to
    include Titles V and VI, making self-governance a permanent option for
    tribes to negotiate compacts with the Indian Health Service (IHS)
    within the Department of Health and Human Services and provided for a
    study to determine the feasibility of conducting a Self-Governance
    Demonstration Project in other programs of that department.
        In total, current law allows federally recognized Tribes and tribal
    consortiums to assume programs administered by the Department's bureaus
    and offices, subject to negotiations, when the programs are available
    to Indian tribes or Indians because of their status as Indians. The law
    also provides the Secretary with discretion to include other programs
    under his administration which are of special geographic, historical,
    or cultural significance to the participating tribal government
    requesting a compact.
        Tribal participation in self-governance has progressed from seven
    tribes and total obligations of about $27 million in 1991 to an
    expected 100 agreements including 260 federally recognized tribes and
    obligations in excess of $420 million in FY 2011. This figure includes
    funding from BIA and other Federal funds that pass through BIA. Other
    Department bureaus and offices also fund agreements under the authority
    of the ISDEAA, also known as P.L. 93-638.
        These self-governance funding agreements allow federally recognized
    tribes to plan, conduct, consolidate, and administer programs,
    services, functions, and activities according to priorities established
    by tribal governments. Under these agreements, tribal governments
    provide a wide range of programs and services to their members such as
    law enforcement, education, and welfare assistance. Many of the funding
    agreements include trust related programs such as real estate services,
    appraisals, probates and natural resource programs such as forestry,
    fisheries, and agriculture. Under tribal self-governance, tribal
    governments have authority to redesign or consolidate many BIA
    programs, services, functions, and activities other than construction.
    In addition, self-governance tribes can reallocate certain funds during
    the year and spend carry-over funds in the next fiscal year without
    Secretarial approval. As a result, these funds can be used with
    relative flexibility to address each tribal government's unique
    condition. Self-governance tribes are subject to annual trust
    evaluations to monitor the performance of trust functions they perform.
    They are also subject to annual audits pursuant to the Single Audit Act
    Amendments (P.L. 104-156) and OMB Circular A-133. In addition, most
    self-governance tribes have included language in their funding
    agreements indicating that they will work with the Department to
    provide applicable data and information pursuant to the Government
    Performance and Results Act of 1993.
        What makes these funding agreements unique is that Title IV of
    ISDEAA allows participating tribal governments to re-design many
    programs for their members and set their own priorities consistent with
    Federal laws and regulations. This authority allows tribal leaders to
    respond to the unique needs of their tribal members without seeking
    approval by Departmental officials.
    Successful Departmental Self-Governance programs
        Many tribal governments have successfully implemented self-
    governance programs to meet their unique needs. For example, the
    Chickasaw Nation in 2006 provided education services to over 7,200
    students. In addition, 945 students participated in remedial education
    and tutoring and 82 percent of the students receiving tutoring gained
    one grade level or more. Scholarships were provided to 181
    undergraduate students and 43 graduate students. The Tribe's tribal
    district court heard 1,118 cases, and collected almost $50,000 in court
    fees and over $32,000 for restitution and child support. In January
    2006, the Tribe's Supreme Court and district court were audited by BIA
    and received excellent ratings. The Tribe also provided career
    counseling, skills assessment, aptitude testing, and other employment
    readying services to 1,320 clients. The Tribe coordinated a job fair
    that attracted 53 vendors and over 500 job seekers. The Tribe's police
    department implemented a new computer system which has aided in
    multiple dispatching methods and improved data collection,
    investigation, and crime analysis and reporting. This example is just
    one of many where Tribes have been successful in directly administering
    federal programs.
        Section 403(b)(2) of Title IV of ISDEAA authorizes other bureaus
    within the Department to enter into funding agreements with tribal
    governments subject to such terms as may be negotiated between the
    parties. The Council of Athabascan Tribal Governments (CATG) has
    successfully implemented Annual Funding Agreements (AFAs) since 2004 to
    perform activities in the Yukon Flats National Wildlife Refuge in the
    interior of Alaska. The CATG is a consortium that represents the Tribal
    governments of Arctic Village, Beaver, Birch Creek, Canyon Village,
    Chalkyitsik, Circle, Gwichyaa Zhee Gwich'in Tribal Government of Fort
    Yukon, Rampart, Stevens Village, and Venetie. Members of these Tribes
    live near or within the Yukon Flats National Wildlife Refuge, the third
    largest of the more than 540 conservation units in the National
    Wildlife Refuge System. The Refuge was established in 1980, and
    includes more than 8.5 million acres of wetland and boreal forest
    habitat along 300 miles of the Yukon River, north of Fairbanks, Alaska.
    It is internationally noted for its abundance of migratory birds.
        CATG has been able to successful negotiate agreements to fund
    activities including: (1) wildlife harvest data collection; (2) Yukon
    Flats moose management; and (3) maintenance of Federal property in and
    around Fort Yukon. Public use (including sport and subsistence hunting,
    fishing, and trapping) is not affected by these agreements. Consistent
    with Title IV, management authority remains with the U.S. Fish and
    Wildlife Service (FWS) as required by the National Wildlife Refuge
    System Administration Act.
        The agreements between the Grand Portage Band of Chippewa and Grand
    Portage National Monument show how the self-governance program works in
    the National Park Service (NPS). Grand Portage National Monument and
    Grand Portage Band of Chippewa have had 11 years of successive base
    contracts for all maintenance, design and construction at the monument.
    There have been 13 amendments to the base contract plus 68 additional
    projects for GIS, sewage lift stations, trail work, exhibits, parking
    lots, landscaping, signage, mortar work, generator and roof repair, and
    more. The tribe manages roughly one quarter of the annual
    appropriations made to NPS for the Grand Portage National Monument. As
    of September 2009, $4,514,173 has been transferred and used for
    projects
        The Bureau of Reclamation (Reclamation) also presents case examples
    of successful implementation of Self-governance compacts under the
    current law. In FY 2009, Reclamation had annual funding agreements with
    five Tribes, totaling about $67 million, which includes funding from
    the American Recovery and Reinvestment Act (Public Law 111-5). One of
    these funding agreements is with the Chippewa Cree Tribe (CCT) of the
    Rocky Boy's Reservation. Reclamation's Montana Area Office in the Great
    Plains Region and the CCT have been working together under a series of
    self-governance Annual Funding Agreements (AFAs) under Title IV of
    ISDEAA to implement on-reservation water resource development as
    provided for in the CCT's 1999 water rights settlement act. Under these
    AFAs, the CCT assumed responsibility for planning, designing, and
    constructing dam enlargement and rehabilitation for Bonneau, Brown's,
    and East Fork Dams and Towe Ponds, as well as providing for future
    water development. The CCT created the Chippewa Cree Construction
    Company, which has successfully completed much of the work carried out
    under these AFAs, providing training and jobs for tribal members in the
    process. Reclamation's role has been to provide administrative
    oversight and technical assistance. The working relationship between
    the CCT and Reclamation has been cordial, productive, and carried out
    in a professional manner. As of August 2009, the CCT completed all of
    the work at Bonneau, Browns, East Fork Dams and Towe Ponds. At this
    time, all of the facilities are operational and are full or
    substantially full. Another successful working relationship between
    Reclamation and the CCT under Title IV involves ongoing work on
    features of the Rocky Boys/North Central Montana Water Project, a rural
    water system.
    Department Concerns with H.R. 4347
        Over the past decade, Indian tribal governments have been
    diligently seeking to amend and improve Title IV of the ISDEAA Tribal
    self-governance program. The Department recognizes the need for this
    program to evolve so as to build on these successful efforts and to
    increase the number of funding agreements.
        The goal of H.R. 4347 is to make the administration of the
    Department's Tribal Self-Governance program consistent with the
    administration of the IHS Self-Governance program. \1\ Less apparent
    are the reasons for insisting that the Interior Department's and IHS's
    Tribal Self-Governance programs be consistent.
    ---------------------------------------------------------------------------
        \1\ See H.R. 111-603 at 18 (Sept. 16, 2010).
    ---------------------------------------------------------------------------
        Congress extended the self-governance program to IHS programs so
    that tribal governments would have more autonomy in the management and
    delivery of tribal health care programs that serve tribal members. \2\
    IHS's primary mission is to provide federal health services to American
    Indians and Alaska Natives. Additionally, the IHS provides other
    services to American Indians and Alaska Natives, including facilities
    construction, water and sanitation services, scholarships for health
    professionals, and health services to urban Indians. The Department's
    responsibilities are also multifaceted and vary with the mission of the
    bureau or office. However, there are distinct different in the
    Department's responsibilities. For example, the Reclamation's mission
    is to manage, develop, and protect water and related resources in an
    environmentally and economically sound manner in the interest of the
    American public. \3\ The National Park Service's mission is to preserve
    unimpaired the natural and cultural resources and values of the
    national park system for the enjoyment, education, and inspiration of
    this and future generations. \4\ While the U.S. Fish and Wildlife
    Service's mission is to conserve, protect, and enhance fish, wildlife,
    and plants and their habitats for the continuing benefit of the
    American people. \5\ Unlike IHS, which is dedicated to providing health
    services to American Indians and Alaska Natives, these non-BIA bureaus
    serve many constituent groups and interests through diverse programs
    and projects, which affects how these other bureaus are structured and
    how they carry out their programs.
    ---------------------------------------------------------------------------
        \2\ See http://info.ihs.gov/TrblSlfGov.asp (last visited Nov. 12,
    2010).
        \3\ See http://www.usbr.gov/main/about/mission.html (last visited
    Nov. 12, 2010).
        \4\ See http://www.nps.gov/legacy/mission.html (last visited Nov.
    12, 2010).
        \5\ See http://www.fws.gov/midwest/alpena/mission.html (last
    visited Nov. 12, 2010).
    ---------------------------------------------------------------------------
        A fundamental question is whether Title V is the appropriate model
    for administering Title IV programs. The Department believes that the
    way Title V programs are administered would not work well for Title IV
    programs.
        For example, Title V has limited grounds for declination of a
    funding agreement. The enumerated list is also known as ``declination
    reasons.'' Currently, Title IV uses the declination reasons set forth
    in Title I. H.R. 4347 would change the declination reasons for Title IV
    to the declination reasons provided in Title V. \6\ This is problematic
    because the declination reasons in Title V may work for health care
    programs but do not necessarily work well for programs administered by
    the Department. The four declinations permitted under Title V include:
    ---------------------------------------------------------------------------
        \6\ See 25 U.S.C. Sec. 458aaa-6(c)(1)(A).

            1.  If the ``the amount of funds proposed in the final offer
            exceeds the applicable funding level to which the Indian tribe
    ---------------------------------------------------------------------------
            is entitled under this part,'' or

            2.  If the ``the program, function, service or activity (or
            portion thereof) that is the subject of the final offer is an
            inherent Federal function that cannot legally be delegated to
            an Indian tribe''

            3.  If the or ``the Indian tribe cannot carry out the program,
            function, service, or activity (or portion thereof) in a manner
            that would not result in significant danger or risk to the
            public health'' or

            4.  If ``the Indian tribe is not eligible to participate in
            self-governance.'' \7\
    ---------------------------------------------------------------------------
        \7\ 25 U.S.C. Sec. 458aaa-6(c)(1)(A).

        The Secretary, in analyzing tribal government's proposals to carry
    out programs, may have valid grounds, beyond these four declination
    reasons, for rejecting the tribal government's final offer. The
    Secretary may determine, for example, that the final offer does not
    adequately fulfill the mission of the non-BIA bureau or office. The
    Title V declination reasons do not acknowledge such a concern.
        In fact, the first declination reason in Title V does not apply to
    non-BIA programs, where there is no ``applicable funding level to which
    the Indian tribe is entitled.'' Moreover, the third declination reason
    in Title V permits declination only if the proposed manner of carrying
    out the non-BIA program would ``result in significant danger or risk to
    the public health.'' While that may be a valid criterion for evaluating
    tribal proposals to assume health care programs from IHS, it is an
    inadequate criterion for evaluating tribal proposals to assume programs
    to construct dams or irrigation projects, survey endangered species or
    to administer national parks. The only declination reasons that H.R.
    4347 offers to non-BIA bureaus and offices are that the tribal
    government proposes to assume an inherently Federal function or that
    the tribe is not eligible to participate in self-governance. This
    severe limitation on the Secretary's ability to reject a tribe's final
    offer deprives the Secretary of the necessary authority to influence
    how Federal programs that are not for the benefit of Indians because of
    their status as Indians are to be carried out.
        Other provisions that the Department finds problematic include, but
    are not limited to:
        Section 405. Funding Agreements

             The Department is concerned with the reduced ability for the
            Secretary to provide adequate safeguards, particularly in
            construction carried out for Title I eligible programs by non-
            BIA bureaus. When Reclamation is responsible for the
            construction of, or major repairs to, a large dam, whether the
            effort is carried out under Title IV or otherwise, the
            Secretary should have the flexibility to require reasonable
            measures to ensure tribal and public safety. To address this,
            Section 405(b)(3) should be modified to closely parallel
            Section 405(b)(2) providing the Secretary the discretion to
            require additional terms for construction under Section 408,
            especially when there are potential health and safety concerns
            or post-construction Secretarial liabilities or
            responsibilities, such as liability under the Safety of Dams
            Act.

        Section 407. Provisions related to the Secretary

             Section 407(d)(2) requires the Secretary to show by clear and
            convincing evidence the grounds for rejecting a final offer
            from a tribal government. This heightened burden of proof
            handicaps the Secretary's ability to negotiate agreements with
            tribal governments that best fulfill the missions of non-BIA
            bureaus and offices. This burden should be ``by a preponderance
            of the evidence.''

        Section 408. Construction

             The legislation should be clarified to state that specific
            construction provisions under Section 408 provisions in Section
            405 (Funding Agreements), Section 406 (General Provisions) and
            Section 409 (Payment).

             Construction projects can vary from very simple to very
            complex. Thus the minimum amount of oversight, reviews and
            inspections should be subject to negotiations for each project.
            As such we recommend that the minimum amounts be removed from
            the legislation.

        Section 413. Funding Needs.

             The Department expressed concern with this provision in its
            testimony on June 9, 2010. As a result, the House Natural
            Resources Committee made slight changes to this section.
            Nonetheless, the Department remains concerned with this
            provision because it could potentially limit the discretion of
            the Secretary to reallocate funds among different programs as a
            result of changing priorities and the emergence of new critical
            needs. Furthermore, identifying shortfalls could make the
            Department vulnerable to lawsuits for the identified funding
            shortfalls.

    Conclusion
        While we appreciate the effort made to address some of the concerns
    raised by the Department, we continue to have significant concerns with
    the bill. In particular, given the breadth of the Department's
    responsibilities, this legislation could significantly hinder the
    Department's ability to accomplish its statutory mandates through its
    multiple bureaus and offices by limiting Secretarial discretion and
    allowing for the transfer of certain functions that should
    appropriately be maintained at the Federal level. We would like to
    continue to work with this Committee and tribal governments to expand
    compacting opportunities and improve our program.
        On a broader note, I would like to reiterate this Administration's
    commitment to restoring the integrity of the government-to-government
    relationship with Indian tribal governments. Many challenges face our
    Native American communities. This Administration is committed to
    working with this Committee and with tribal governments so that,
    together, we can create opportunities for these communities to thrive
    and flourish.
        Mr. Chairman, this concludes my statement and I will be happy to
    answer any questions you may have.

        The Chairman. Mr. Allen, welcome. Ron Allen is the Tribal
    Chairman and CEO of James S'Klallam Tribe, the Chairman of the
    Board of the Self-Governance Communication and Education Tribal
    Consortium, and a couple of other chairmanships. You have been
    very active, and you have been in front of this Committee many
    times. We appreciate your coming back.

    STATEMENT OF HON. W. RON ALLEN, TRIBAL CHAIRMAN/CEO, JAMESTOWN
        S'KLALLAM TRIBE; CHAIRMAN OF THE BOARD, SELF-GOVERNANCE
     COMMUNICATION AND EDUCATION TRIBAL CONSORTIUM; AND CHAIRMAN,
      TITLE IV--DOI AMENDMENTS TRIBAL WORKGROUP; ACCOMPANIED BY:
      GEOFFREY STROMMER, PARTNER, HOBBS, STRAUSS, DEAN AND WALKER

        Mr. Allen. Thank you, Mr. Chairman and Senators. I
    definitely appreciate the opportunity to come and testify on
    this self-governance legislation. I too share the Indian
    Country's deep appreciation for your leadership. So we thank
    you, and you heard our deep appreciation to you when you talked
    to us at NCAI. We definitely are looking forward to working
    with you further after you move on to the next chapter in your
    career.
        Self-governance is one of the best success stories of the
    Federal Government with respect to advancing tribal
    sovereignty. Senator Franken made the comment about the
    Minnesota tribes saying start with sovereignty and move from
    there. Yes, we are sovereign governments.
        How do you implement the sovereignty in terms of advancing
    the interests of our people? This legislation started in its
    pilot phase in 1988. And yes, my tribe was one of them. Now, we
    have 260 or so tribes in the BIA, 330 some odd tribes in IHS.
    It is a movement. And it is not a program. There is one thing
    you need to understand: it is not a program. It is implementing
    our governmental authority over all programs that we serve our
    community. We are acting as governments.
        We are no longer contracting with you because of some
    treaty obligation or some moral or ethical obligation you have
    to the Indian people of this Nation. We are governments, and we
    have always been governments. What we want is control over our
    destiny. We want control over our ability to become self-
    reliant again. We always were in historical times and we want
    to be here in modern times, in the 21st century.
        We have nothing but success. I could be waving a book that
    we wrote with all kinds of examples, from Alaska to Florida,
    criss-crossing Indian Country, of the success of self-
    governance.
        So this legislation is simply an amendment, a technical
    amendment, to require the Federal Government, in terms of how
    we are able to negotiate with them and to take over these
    Federal programs that are intended for the benefit of our
    tribes and our people. That is what this is about.
        I appreciate your accepting our testimony. We have
    addressed a lot of the issues that the Bureau of Indian Affairs
    and Department of Interior have raised. We feel we have
    answered it. This subject matter, for this amendment, for Title
    IV, has been going on for 10 years. And we deeply appreciate
    the fact that we are really close, finally close to matching in
    principle the Title V and moving the agenda forward.
        I think it is important to recognize, as we talk about
    these different issues within this legislation, this amending
    legislation, that we have worked diligently with the Committee
    on both the Republican side and the Democratic leadership
    staff, as well as the Administration. To the credit of George
    Skibine and his leadership, we have gotten a lot of traction on
    this over the last year and a half or so. That is good. A lot
    of those issues are off the plate. There were a lot of them. We
    have spent countless hour working through these issues.
        I am a little frustrated as I hear issues that I felt that
    we put to rest that are back here on the table. We don't feel
    they should be. Our answer to that real quick question would be
    that we urge that the Committee actually consider that we feel
    we have answered these questions and issues that are being
    raised by the Bureau, because the majority of this is the BIA
    and not the non-BIA. And if there are legitimate issues that
    the Administration wants to raise, then we feel we can come
    back in a technical amendment and correct it.
        You have never passed a perfect bill. It has never happened
    in the history of America. So why is it that we have to have
    the perfect bill to address Indian Country? Why is it? We have
    consistently said to you that we are the most regulated people
    of America. Why is that? Why do we have to have a higher
    standard in terms of how the Federal Government meets its
    obligations to our communities?
        So when you talk about the final determination, we just
    want a very clear determination on in terms of when we
    negotiate. You have an obligation to get back to us. With
    regard to Prompt Payment Act, well, quite frankly, yes, 10
    days, IHS can do it. We have over a billion dollars that are
    contracted out with the tribes. They do it, and you have the
    Prompt Payment Act. So it is not 10 days, it is 10 days plus 14
    days. So there is no reason why you can't get the money.
        We carry those Federal programs out. So we have to go
    borrow money to carry out Federal functions. I don't see you
    giving us any recourse on that issue. So we will get the money
    to you when we can get the money to you, but meanwhile, you
    guys go out there and do your job that you are supposed to be
    doing.
        So there are those kinds of issues that are out there.
    Reporting requirements, the Federal Government and its agencies
    report to you all the time. All we are doing is asking them to
    report to you how well this program is being administered and
    implemented. We think it is very reasonable that the stuff that
    we are asking with regard to self-governance is being admitted
    into the record.
        I see my time is up, Mr. Chairman. I am definitely here to
    answer questions. As a chairman of one of the lead tribes, I am
    very dedicated to making this happen. I am very dedicated to
    finding common ground. Indian Country knows common ground is
    essential for success. All we want to do is keep moving this
    agenda forward to allow us to move our agenda forward to take
    care of our future generations.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Allen follows:]

    Prepared Statement of Hon. W. Ron Allen, Tribal Chairman/CEO, Jamestown
         S'Klallam Tribe; Chairman, Self-Governance Communication and
      Education Tribal Consortium; and Chairman, Title IV--DOI Amendments
                                Tribal Workgroup

        The Chairman. Mr. Allen, thank you very much.
        Finally, we will hear from the honorable Will Micklin, who
    is the First Vice-President of the Central Council of Tlingit
    and Haida Tribes of Alaska in Juneau, Alaska. Mr. Micklin,
    thank you very much. You may proceed.

     STATEMENT OF HON. WILL MICKLIN, FIRST VICE-PRESIDENT, CENTRAL
         COUNCIL OF TLINGIT AND HAIDA INDIANS TRIBES OF ALASKA

        Mr. Micklin. Greetings from Alaska. My name is Will
    Micklin, my Tlingit name is Yaan Yaan Eesh. I am of the Wolf
    Tribe, Teikweidee Clan of the Kaat Hit House of the Tongass
    Tribe of Ketchikan. I am a Sealaska shareholder and a member of
    the Alaska Native Brotherhood Camp 14.
        I am elected Vice-President of the Central Council of
    Tlingit Haida Indian Tribes of Alaska, federally-recognized
    tribe from Southeast Alaska with 28,000 enrolled members. Our
    18 communities in Southeast Alaska span Hydaburg in the south
    of Prince of Wales Island to Yakutat near Mt. Saint Elias in
    the north. Our headquarters are in Juneau, Alaska.
        I am an eight-term tribal Assemblyman and two terms on the
    Executive Council. Today I am Acting President in place of
    President Edward Thomas, who is outside the Country on
    vacation.
        Tribal self-governance is a goal for which the Congress and
    Indian tribes long have expressed strong support. Amending
    Federal law to increase tribal self-governance authority
    creates many benefits for all parties involved, ranging from
    reduced reporting costs to increased program flexibility and
    innovation and implementation.
        The key to meaningful tribal self-governance is the respect
    for the capacity of tribal governments to carry out Federal
    functions and implement Federal policies. If it is authentic, a
    Federal policy that honors government to government relations
    with Indian tribes is one that trusts the corrections inherent
    in elected tribal leadership. Tribal accountability and
    effectiveness is enhanced if Federal officials properly
    restrain their role in tribal self-governance. All of this
    improves the services delivered to our people.
        Central Council is deeply invested in making tribal self-
    governance a success. In 1987, Central Council was among the
    initial group of 10, the so-called demonstration tribes, who
    worked with the Congress to draft what became the self-
    governance statute. Central Council's President Thomas, along
    with Chairman Ron Allen here today, shaped the original law at
    each stage of its development, from the study and planning
    language in the fiscal year 1988 appropriations bill to the
    Title III demonstration language that originated with this
    Committee in the early 1990s to Title IV, which likewise
    originated here in 1994.
        Tlingit and Haida was the first tribe to enter into a
    multi-agency agreement under Public Law 103-477, more or less
    the son of self-governance, which allowed us to consolidate
    employment and training funding from various Federal sources
    into a single, coordinated tribal program. We are proud of the
    active role our tribe has been able to play in the movement
    toward expanded self-governance, and our people are eager to
    make every contribution we can toward furthering that movement.
        In 1992, our initial compact and funding agreement, one of
    the first in the Country, and the first in Alaska, completely
    closed an entire agency office of the Bureau of Indian Affairs
    and transferred its funding and responsibility to Central
    Council and other tribes in our region. Where the BIA employees
    before delivered our services, we assumed responsibility to
    serve ourselves. Central Council did step into the shoes of the
    Federal Government.
        Ours was the very first multi-tribal compact that provided,
    by mutual agreement, with some of the IRA tribes in Southeast
    Alaska, Central Council administration of programs that
    directly benefitted these tribes and their tribal members. For
    the past 25 years, Central Council has pushed hard to see self-
    governance fulfill its promise of devolving paternal Federal
    power and conveying resources to the tribal government level
    where they can be exercised most efficiently and cost-
    effectively with the greatest accountability to the tribal
    citizen and public taxpayer. In our experience, tribal self-
    governance is the cure for debilitating Federal dependence,
    giving rise to healthy tribal governments that fulfill the
    promise of self-sufficiency.
        Tlingit Haida's experience with tribal self-governance has
    not been without challenges. An unfounded fear on the part of
    the Federal bureaucracy has fueled bureaucrats' constant
    battles with tribes' advance guard in negotiations of our
    agreements and battles with our rear guard to compel
    bureaucrats to honor our agreements. Rules have been changed by
    Federal officials arbitrarily and capriciously, without notice
    or consultation. Negotiations have simply stalled without end
    or consequence for bad faith actions.
        Payments have been delayed for months and years. For
    example, between 1996 and 2000, Interior failed to deliver to
    us a total of $953,781 in contract support cost funding that
    its own negotiators, in applying the Uniform Federal Rules, had
    determined were due us for our operation of BIA-funded
    programs. We had to meet the shortfall with earnings from our
    tribal trust fund. Using tribal trust fund dollars to meet
    Federal contractual obligations resulted in lost opportunities
    to address the many problems facing our people. Every year,
    Interior has failed to delivery timely the funding it agreed to
    deliver, forcing us to borrow funds n order to meet even our
    basic payroll obligations.
        We have to fight every step of the way, because the law
    provides very little language to a tribe and oceans of
    discretion to the Federal bureaucrats that enable them to
    delay, obstruct, frustrate and eventually diminish tribal
    initiatives. These fights are costly for us in terms of time,
    money and opportunity. The delays in time and loss of
    opportunity for our tribal self-help efforts are so significant
    that we are compelled to seek a fix for each problem.
        Tlingit Haida joined with other tribes over the past 10
    years to shape and reshape this bill to blunt objections from
    wave after wave of Federal bureaucrats. We began a decade ago
    with what we thought would be a simple task of asking Congress
    to replicate the law reforms regarding health self-governance,
    which Congress imposed on the Indian Health Service in Title V
    in the year 2000. If it worked for IHS, why not for BIA? That
    remains our central message.
        And it is the basis of our request today. We have worked
    for years with each Administration to pare down this bill to
    the bare minimum. Today the House-passed bill reflects great
    compromise on the part of tribes. We have conceded point after
    point to the Interior Department.
        If there are any changes to the House-passed H.R. 4347,
    which the Senate or the Department believe are necessary, they
    can be made in the form of technical amendments next year after
    enactment of this bill this year, but not now. It is imperative
    that in the coming days, the Senate pass and send on to the
    President the House-passed H.R. 4347.
        In conclusion, Mr. Chairman and members of the Committee,
    thank you very much for the opportunity to present this
    testimony on behalf of Central Council and its tribal citizens
    we serve. We commend you and this very distinguished Committee
    for the valuable time you are dedicating to this very important
    issue in the final hours of Congress.
        On a personal note, and on behalf of President Ed Thomas, I
    thank you, Chairman Dorgan, for your years of service and
    commitment that you have given to Indian Country, among your
    other commitments in the United States Senate. Your dedication
    and that of your most able staff will be long-remembered. And
    as you leave for us in Indian Country a legacy of significant
    accomplishments, including, I hope, Senate passage of H.R.
    4347, I wish you well as you move on to ever-greater success
    and personal satisfaction. Tribal self-governance is the single
    most important Federal Indian law reform that I have seen in my
    lifetime. I hope you and your colleagues see fit to lay H.R.
    4347 on the President's desk for signature into law before the
    end of this year.
        [The prepared statement of Mr. Micklin follows:]

    Prepared Statement of Hon. Will Micklin, First Vice-President, Central
              Council of Tlingit and Haida Indian Tribes of Alaska

        The Chairman. Mr. Micklin, thank you very much. That too is
    my hope. My hope is that we are able to move on this
    legislation. We will have several weeks, perhaps, in December
    in the lame duck session. My hope is that we will resolve
    whatever remaining controversy exists and pass this
    legislation. This is a very important piece of legislation.
        Mr. Skibine, you have come before this Committee in many
    different ways. I was thinking as you were speaking of the
    times when Senator McCain was Chairman and I was Vice Chairman
    and you would come, and I actually felt sorry for you from time
    to time. You are smart, you are dedicated, but you would come
    to us and you would have to explain to us why things weren't
    happening when we were told they were going to happen.
        You explained to me one day in a hearing why, after 17
    years, there were not yet rules and regulations on off-
    reservation gaming. And I said, I don't understand, 17 years? I
    can understand missing things by a month or a week or perhaps a
    year. But 17 years?
        A couple of years ago, actually five years ago, on the
    issue of Federal recognition, you came to this Committee and
    indicated that you felt that you would move forward on rules
    and regulations on the issue of tribal recognition, Federal
    recognition of Indian tribes. And I think two years ago you
    said to us that you had specific ideas moving through the
    pipeline.
        I tell you that because that is why it seems to me those
    who wish to advance the interests of self-determination and
    make it work are not persuaded at all that they can be
    protected, unless in law we impose time limits on Interior.
    They have simply experienced unacceptable practices with
    respect to not getting things done.
        So when I asked you during your testimony specifically to
    tell me what are the differences and what do you object to, and
    you went through the list of being required to by 60 days,
    being required to by 90 days, being required to in a certain
    period of time to develop rule and regulations, I thought,
    well, man, I am on their side on that. I would want to require
    you too as well.
        So give me, if you can, the defense of the Department in
    meeting time deadlines, in doing things necessary in a timely
    way. We appreciate working with you, but this Committee has
    never been very impressed with the glacial pace of the
    Department on a whole range of issues.
        Mr. Skibine. Thank you, Senator Dorgan. First, I want to
    say, we did pass off-reservation gaming regulations.
        The Chairman. And I know why you passed them, because we
    put a lot of heat on the chair you were sitting on. When I
    asked the question, why has it taken 17 years, but I appreciate
    the fact that once we prodded and prodded, it got done.
        Mr. Skibine. Yes, that is true. And we are very close on
    moving forward on Federal acknowledgment regulations, amending
    that, too. So that was a pledge that hopefully we can fulfill
    before too long.
        On the time frame, I think that we in Indian Affairs, we
    have a time frame. Because usually the funding agreements
    include the declination criteria in Title I, which is a 90-day
    time frame. I think what we wanted it to be is to stay
    consistent with what the Bureau of Indian Affairs does now with
    respect to self-determination contracts.
        The problem I think we are concerned with for the time
    frame is because often, if the documents or the proposal goes
    somewhere where it is not supposed to go, another agency, and
    does not reach the Office of Self-Governance, then we will have
    a problem in that, by the time we get it, we might have much
    fewer time. And that I think is something that, first of all, I
    have certainly experienced that with the approval of compacts
    on gaming, where we have 45 days, and if not, it is deemed
    approved.
        And if that is sent to an agency or it is misplaced
    somewhere, we can altogether miss it. And in fact, we did that,
    and it got us into a lot of hot water with respect to some
    California compacts a few years ago.
        So we prefer, just to be on the safe side, to have a longer
    time frame. I think overall with respect to the 90 days that
    self-determination contracts operate on, that pretty much has
    worked. Right, Sharee?
        The Chairman. Well, but the only point I am making, I won't
    go beyond this, is that I have sat here in this chair, and my
    colleagues have as well. I know that on tribal recognition, you
    have applications down there from 25 years ago that have never
    been acted on. On the issue of taking land into trust, you have
    things down there that have been sitting on your desk for 15
    years with no action. And I have had to hold hearings to find
    out what is going on.
        So the only point I am making is, the objections you raised
    about imposing time deadlines on the Interior Department come
    from a long line of failures of the Department proceeding
    expeditiously to make thoughtful and constructive judgments
    about issues that have been presented to it. So I really think
    that the record that has been compiled, I don't want to injure
    your opportunity to make the right decision. But the evidence
    suggests that it takes far too long in virtually every area.
        So to the extent that we pass legislation, the House
    already has, to the extent that we pass legislation, if there
    are really substantive objections other than, this is going to
    press us to have to move ahead with some dispatch, that is not
    much of an objection to me. I say, do it, do it right and do it
    expeditiously so that we can get some answers on some of these
    issues.
        I have a couple of other questions as well, but I have to
    step in the back to take a conference call. It is only going to
    take about eight minutes, but it is very important. One of my
    two colleagues will chair, just for a moment. Senator Tester
    indicated he would be willing to chair.
        Let me call on Senator Cantwell to inquire and then Senator
    Tester will follow, and I will be back to ask additional
    questions. Senator Tester, thank you very much. Senator
    Cantwell, why don't you proceed.
        Senator Cantwell. Thank you, Mr. Chairman.
        Chairman Allen, in the Northwest we have some of the first
    tribes, as I mentioned, to be included in the program. We also
    have tribes that want the compact to be more flexible, as you
    were discussing. But they haven't because of those barriers
    that exist in Title IV.
        What do you think is the number one barrier to tribes in
    thinking about taking over those BIA functions under Title IV?
    And how does the legislation help us with that?
        Mr. Allen. Thank you, Senator, and thank you for always
    being supportive of our effort on self-governance. Of our 29
    tribes in Washington State, I think it is somewhere in the
    neighborhood of 18 to 20 of them are self-governance. There are
    a couple who are wanting to negotiate.
        But if there is an impediment, the subject matter that Mr.
    Skibine is raising is one of the examples of the final
    determination. We go into negotiations, we identify what we
    think is our fair share in each of these categories and
    negotiate until either we get to a common ground or we get a
    difference of opinion, and then we make a final offer.
        If we don't have a definitive time frame for them to
    respond to us, or to decline it, then it doesn't allow us to
    move in negotiation forward. So on the one hand, we have less,
    I think we have less trouble in the Northwest than some of our
    sister tribes elsewhere in terms of identifying what the
    numbers are. But that is a big issue. We would say to you that
    on this declination time frame, over at IHS, theirs is 45 days.
    And they wanted the 90 too, then they wanted 60. And we
    appealed to you for 45. You concurred with us. It has not been
    a problem over there.
        The issue is that the law allows for us to mutually extend
    it if we require more time. So sometimes you get caught up in
    the dates and the time frames, and it is more the legal
    argument coming from the Department or the Administration than
    it is necessarily the programmatic people. Because we have
    worked out many of these issues.
        But that declination process and burden of proof are issues
    that help us move the agenda forward. So if you look at the 260
    tribes that are in today and ask, why aren't there more, why
    aren't more jumping in, this is part of the problem. It is the
    process and the definitive requirements of the Department to
    negotiate with the tribes and respond to us, so that we can
    move the negotiations forward.
        Senator Cantwell. Could you describe what you think self-
    governance has meant economically, how many jobs have been
    created, what it has done for the economic opportunities within
    Indian Country?
        Mr. Allen. I always refer to self-governance as empowering
    the tribes to move our governmental affairs forward to serve
    our people. A good example would be my tribe. When we
    negotiated back in the early 1990s, when the law became
    permanent, we negotiated for a number that probably had had us
    at around a very small staff of 35 or so FTEs. Over the years,
    we have taken on more and more programs, and we probably
    increased our base by maybe 30 percent or something along that
    line.
        But today, because of the flexibility of self-governance
    and the ability to move these resources and leverage these
    resources, our budget has increased exponentially. We currently
    have a staff of around 180 people. Our economic development has
    flourished as a result of our ability to move money into
    categories that will allow us to plan and develop economic
    development, plan and development programs that serve our
    community, leverage other resources that are out there, whether
    it is Federal or State or private sector, to allow us to expand
    our governmental base.
        So our governmental base, because of self-governance, which
    is simply a base, rarely for most of us it is a small component
    of our base, but it has allowed us to leverage and increase
    jobs and create stability, which is, for us, it has increased
    jobs, but it has also stabilized our FTEs with our operation.
        Senator Cantwell. What do you think that is, time,
    predictability? What elements allowed you to use self-
    governance to grow economically? What attributes of that? Is it
    predictability? Is it the ability to plan and be able to jump
    on economic opportunities in a more rapid fashion?
        Mr. Allen. It is mostly the flexibility of the resources.
    The Federal Government historically has categorized where they
    feel that the tribes need assistance. They have all these
    different categories of where these resources can be available.
    And historically, it is like a silo. So you can only use these
    monies for this program or that program or that program or that
    program, A, B, C, D. Then it did not allow the tribes to use
    those monies where they really needed them or how they could
    use them with more creativity to be able to expand our
    operation.
        That is probably the greatest benefit. So if we need to
    develop our political or legal infrastructure to create
    economic development on our reservation, so it creates better
    certainty for the private sector to conduct business on an
    Indian reservation, then the infrastructure is that certainty
    they are looking for, the due recourse with regard to
    investment on a tribal reservation. It allowed us to use monies
    that we may not, that were dedicated for one area, we can use
    it for another area more effectively, to advance that
    particular program.
        Often, I do want to footnote here, a lot of people were
    concerned, including people in our respective communities, you
    are going to take natural resources, you are going to put it
    over in economic development. You are going to take social and
    community monies and you are going to put it over in economic
    development. So you are going to undermine those programs and
    services, education and so forth.
        That is not what has happened. If you look at all our
    different programs, you will see they have been enhanced. But
    it is little kinds of tweaks that allow us that flexibility in
    how we use those resources, relative to the other resources
    that are available to the tribe, to allow us to advance
    economic development and other agenda items, including cultural
    enhancement. Cultural enhancement, which has always been very
    difficult for tribes to restore and preserve and advance, and
    those programs have flourished immensely.
        Senator Cantwell. Thank you. Thank you, Mr. Chairman.
        Senator Tester. [Presiding] Mr. Skibine, I want to follow
    up a little bit on what the Chairman was talking about. You had
    expressed some concern for the time frames in the bill and the
    accountability, you didn't say this, I did, the accountability
    that those time frames are going to require if passed. I just
    want to reiterate that the record is there, you are not the
    only agency, by the way, there are others, but the record is
    there to indicate that we in the legislative branch of
    Government need to do something to make sure that things get
    done.
        And I don't know if it falls on you or people you supervise
    or people above you that supervise. But quite honestly, I think
    the reason that language is in here is because there are plenty
    of examples to show that we haven't moved like we should.
        Now, I know the last Administration didn't fill a lot of
    positions that needed to be filled. But we are not in the last
    Administration any more. We are in this Administration. I think
    they have done a good job of filling and putting some good
    quality people, yourself included, in the Department.
        I have a question for you, not related to that, but others.
    I am just saying, it is not going away. There is no reason that
    Indian tribes should have to suffer because we have people in
    the agencies that aren't buckled down and getting after it.
        The bill includes a provision to require the Secretary to
    negotiate in good faith. Isn't that required in every
    negotiation that Government enters in? Why is that language
    specifically in here? Can you give me an idea?
        Mr. Skibine. Well, of course, it is a requirement for the
    Department and the Government to negotiate in good faith.
        Senator Tester. Yes.
        Mr. Skibine. So I am not sure why that provisions would be
    in there.
        Senator Tester. Are you aware of any violations where your
    agency did not negotiate in good faith?
        Mr. Skibine. No.
        Senator Tester. How about you, Mr. Allen? Do you know why
    that is in there?
        Mr. Allen. Yes. It will vary from region to region, but
    with self-governance, it is about transferring Federal
    functions to the tribal government.
        Senator Tester. I got you. Go ahead, keep going.
        Mr. Allen. But the Federal Government does not want to let
    go. The reality is, it doesn't want to let go of those
    programs. It believes it is essential to protect our interests.
        The problem is that, George referred earlier to the
    inherent Federal functions, or essential governmental functions
    that only the Federal Government can administer, versus what we
    can administer. Now the question for a tribe, we are
    negotiating in good faith, we want them to put the numbers on
    the table and the programs that we should have access to in
    good faith, so that we can actually negotiate for the numbers.
    If they resist, or they don't provide us the information, or
    they withhold information, how can we negotiate in good faith?
    We don't know what we are negotiating for.
        Senator Tester. But this provision requires the Secretary
    to negotiate in good faith. You are going to negotiate in good
    faith, the Secretary is going to negotiate in good faith. I
    just don't understand why that language is in there. I just
    don't get it. I think it is a given, that is all.
        We talked about non-BIA programs, the BOR in particular was
    concerned about their ability to monitor. Is there some
    contracts that have gone awry? Is it just that they don't want
    to, and I know you can't answer for BOR or any other agency
    outside of yours, but is it just what Mr. Allen said, that they
    don't want to give up, they want to keep their finger on it? Or
    is there a reason? Is there some examples where there has
    been----
        Mr. Skibine. I don't think there are some examples. But I
    think that essentially, what I think the Bureau of Reclamation
    feels is that building dams may be very different from building
    detention facilities. Whereas in Indian Affairs, our director
    of facilities I think is comfortable with the provisions in the
    current bill, I think in BOR, they feel that they need more
    input.
        Senator Tester. I want to give either Mr. Micklin or Mr.
    Allen an opportunity to respond to that. Because building a dam
    is different than building a detention facility or school or
    whatever it might be. Do you want to respond to that, either
    one of you?
        Mr. Allen. I will lead off, and then Willie can add to the
    response. First of all, when we first began this negotiation,
    we wanted clarifications on the non-BIA agencies with regard to
    what our ability to access those resources are. It became too
    complicated and political, quite frankly. So we chose to step
    away from the non-BIA agencies and left it as the current law
    is. So the majority of this bill, 90 percent of this bill, if
    not more, is in the BIA and not the non-BIA.
        But going to your point, the compacts that currently exist
    with Bureau of Reclamation, Land Management, Fish and Wildlife
    and Parks, there aren't very many of them, because it has been
    very difficult for us to negotiate those compacts. They have
    been very resistant to that happening. But there have been no
    problems that we know of, no managerial mismanagement problems.
    Every one that the tribe has taken over has been run
    exceptionally well with no discernible problems at all. But
    that arena is very difficult for us to penetrate.
        On construction, there are very clear requirements to meet
    the Federal standards and the EPA requirements.
        Senator Tester. Can I ask what happens if you don't meet
    those standards?
        Mr. Allen. Just like any other contract, it stops until you
    meet the requirement.
        Senator Tester. All right, sounds good.
        Mr. Micklin, do you want to respond to that, about non-BIA
    agencies, and if there has been problems in your neck of the
    woods?
        Mr. Micklin. I can say that in H.R. 4347, the tribes have
    conceded this point, in that there is no mandatory contracting
    provisions in here. This is almost entirely a BIA bill. But our
    contacts with the non-BIA agencies, when we have approached
    them about doing those things that come naturally to us with
    our historical expertise, our cultural ties and affinity with
    public lands, they have looked back to us across the table as
    though they were stricken.
        And our feeling is that they are very jealous of their
    discretion and they are wanting to retain their inherent
    discretion to do what they like with their own programs, and
    not bother with tribes who are trying to contract programs and
    services that not only benefit the Federal Government by
    accomplishing those works, as well as any other Federal
    contractor or the public agency, but benefit the tribe and the
    tribal citizens as well.
        So we think there is much to be gained down the road with
    additional contracting. But we have let them keep their
    discretion, because it is not part of H.R. 4347 today. I wish
    it was, but it is not.
        Senator Tester. Right.
        Mr. Allen. Can I add one more point? On this topic, in
    construction, which confuses a lot of people, the way the
    current law reads and the way the current regulations read, and
    these amendments allow for the resumption. If an agency, BOR,
    has gone awry and we are not meeting certain standards, then
    they can reassume it.
        Senator Tester. Okay, very good point. First of all, I want
    to thank the witnesses for testifying today, and your answers
    to the questions. I, as the Chairman has expressed, would love
    to see this get done now. I think it is important. I think any
    time we can empower Indian Country, it is beneficial to
    everybody. And I think it is a decent bill.
        Although you say it may not be perfect, Mr. Allen, you are
    right, it may not be perfect. But with the exception of the
    ones I write, that is always the way it is.
        [Laughter.]
        Senator Tester. I would just say, remind you that the
    record will remain open for two weeks for further comments. I
    look forward to working with the Chairman and with the folks on
    this panel and others to get this bill across the finish line.
        With that, we will adjourn the hearing. Thank you.
        [Whereupon, at 10:45 a.m., the Committee was adjourned.]

                                A P P E N D I X

    Prepared Statement of Hon. Dan Boren, U.S. Representative from Oklahoma
        Chairman Dorgan, Vice Chairman Barrasso, Members of the Indian

    Affairs Committee:
        Thank you for setting this House-passed legislation for hearing. I
    hope it leads to greater understanding of this very important piece of
    legislation. The issue of Tribal Self-Governance is crucial to many
    Indian tribes, but as a Representative of more than 200,000 Native
    Americans it is personal to me. I've devoted many hours to shaping and
    pushing this legislation through the House process, and discussing with
    tribal representatives and Department of the Interior officials the
    changes that were needed to remove objections and get it passed. I hope
    the Senate will now see fit to pass it before the year's end and send
    it on to the President for signature into law.
        H.R. 4347 amends Title IV of the Indian Self-Determination and
    Education Assistance Act of 1975 to provide greater legal authority to
    Native American tribes as they pursue, at each tribe's option, tribal
    self-governance. It transfers authority and responsibility from the
    federal program bureaucracy to the tribal program administration. This
    bill gives tribes the ability to better negotiate with the Department
    of the Interior, strengthening the self-governance program and
    eliminating wasteful practices in the Federal Government.
        The self-determination approach was born in the late 1980s upon the
    revelation that only a small percentage of federal money appropriated
    for the benefit of Indian country actually made it out of the
    bureaucracy and into the hands of the tribes. The result was a myriad
    of well-intentioned approaches that culminated in 1994 with the birth
    of Title IV of the Indian Self Determination and Education Assistance
    Act. Title IV was enacted to accomplish three primary goals: (1) to
    place the Federal Government's Indian programs firmly in the hands of
    the local Indian people being served; (2) to enhance and empower local
    tribal governments and their governmental institutions; and (3) to
    correspondingly reduce the federal bureaucracy. Title IV was designed
    to reduce federal micromanagement and to empower tribes, at their
    choosing, by giving them the control necessary to maximize the services
    to their people. We now have an opportunity to amend the language of
    this program to more efficiently and effectively run the self-
    governance program.
        The self-governance program has been a tremendous success for
    participating tribes across the country. In 2004 the Government
    Accountability Office noted in a prepared report on Indian economic
    development that those tribes that participated in self-governance
    programs had greater gains in employment levels from 1990 to 2000.
    Through years of rule making and implementation, it is clear that self-
    governance works, and works well.
        The self-governance program has worked so well, in fact, that many
    of its principles were applied to the Indian Health Services Title V
    program. The result of that application has been higher quality medical
    access, lower costs, and more efficiency. Despite all the evidence that
    the principles of Title V work, the Federal Government has yet to make
    them applicable to the Bureau of Indian Affairs' Title IV program. H.R.
    4347 brings parity between the two programs, applying lessons learned
    in Title V to the relevant areas of Title IV. It will streamline the
    self-governance system and eliminate wasteful spending on the part of
    the Federal Government.
        The core principles of this bill are simple. First, tribal
    sovereignty and the right of a nation to control its own destiny is the
    most efficient approach to federal spending dollars. It takes money out
    of government bureaucracy and puts it directly in the hands of the
    Indian Tribes, allowing them to create jobs and invest in the
    infrastructure from which we all benefit. Second, the enormous rewards
    that come from allowing local control over local programs far outweigh
    the concerns about paring down government control. These points, in
    addition to the fact that H.R. 4347 gives Indian Tribes more control of
    their own destiny, make it an immensely important piece of legislation.
        H.R. 4347 is the result of years of negotiation between many
    concerned parties and stands to benefit both the Indian Tribes and the
    Federal Government. In fact, this bill reflects significant compromise
    on the part of both the tribes and the Federal Government. To quote the
    late, great Cherokee Nation Chief Wilma Mankiller, ``The success of
    self-governance has been nothing short of astounding.'' I sincerely
    hope that we can work together to improve and protect this landmark
    program.
        Chairman Dorgan, Vice Chairman Barrasso, and Members of this
    Committee, thank you for the opportunity to provide this statement to
    your committee. I look forward to working with you to see that the
    amendments to the Indian Self-Determination and Education Assistant
    Tribal Self-Governance Act, which is of great importance to Indian
    Country, are soon enacted into law.
                                     ______

        Prepared Statement of William C. Reffalt, Vice President/Issues
                        Coordinator, Blue Goose Alliance

        Mr. Chairman and members of the Senate Indian Affairs Committee,
    the Blue Goose Alliance (BGA) appreciates this opportunity to submit
    testimony for the record regarding H.R. 4347, a bill to amend the
    Indian Self-Determination and Education Assistance Act (ISDEAA) and for
    other purposes. We confine our comments to the provisions in Title 4
    affecting Annual Funding Agreements (AFAs) with non-BIA agencies of the
    U.S. Department of the Interior.
        We make note that testimony given on behalf of the Department of
    the Interior raised serious concerns regarding the non-BIA portion of
    H.R. 4347 but they did not elaborate on those concerns. The primary
    concerns of the BGA were made known to the committee prior to the
    November hearing conducted on the bill. We requested that the bill be
    amended to 1) remove the definition stated in Section 401(7) and, 2)
    delete the provisions contained in Section 411 of H.R. 4347 and insert
    the disclaimer language from Section 403(k) of the current Self-
    Governance Act.
        The requested amendments would retain current law, which provisions
    were inserted in 1994 as a safeguard of the public interest in assuring
    that inherently federal functions of the U.S. Government would remain
    fully under control of federal officials charged by law to implement
    them and, in addition, that when the laws governing the missions and
    functions of the agencies to be involved in an ISDEAA Annual Funding
    Agreement do not permit the type of agreement provisions sought by the
    tribe, then they shall not be allowed. The provisions of H.R. 4347
    would insert a new legal standard that, frankly, does not exist in
    current laws governing conservation of lands and renewable resources on
    the public lands of America.
        Further, the primary law governing the National Wildlife Refuge
    System was modified in 1976 and again in 1997 with restrictions on
    joint management and delegation of management programs within units of
    the Refuge System. We believe those restrictions are vital to the long-
    term integrity of the Refuge System and its ability to provide a
    perpetual stream of benefits to the American people.
        Mr. Chairman, the provisions that permit annual funding agreements
    between qualified Indian tribes and non-BIA agencies in the Department
    of the Interior have already resulted in an aggressive implementation
    within the Department that has at times gone beyond having tribal
    participation in functions, activities, services, etc., and delegated a
    level of control to them that intruded on inherent federal functions,
    or at a minimum delegated a level of participation that exceeded the
    intent of authorizing legislation of the agency.
        Given that the programs, functions, services and activities
    involved in the non-BIA agencies were established to benefit all
    Americans, including Indian peoples, it is very important that an
    appropriate, nationally coordinated federal role is continued. As an
    example, major programs of the National Wildlife Refuge System involve
    multiple international treaty obligations that were intended to be
    fulfilled through the operation of the System. Thus, provisions
    assuring that inherently federal functions remain under full control of
    federal employees are vital to those long-standing international
    commitments of our Nation.
        We further believe that the Senate Committees having jurisdiction
    directly affecting those non-BIA agencies should have continuing
    opportunities to review provisions in the ISDEAA that could have far-
    reaching effects on the missions involved as well as on the
    expenditures of appropriated moneys. Inserting a new and additional
    administrative overhead onto the programs involved in AFAs might bring
    inefficiencies at a time when all federal expenditures require the
    closest scrutiny to assure maximum efficiency.
        In conclusion, Mr. Chairman, the Blue Goose Alliance, a private,
    non-profit organization dedicated to the integrity and welfare of the
    National Wildlife Refuge System, urges the Committee to restore the
    protective language it previously inserted and passed in the non-BIA
    title of the self-governance statute. We believe the public interest
    would best be served by the amendments we have proposed.
        Thank you, again, for this opportunity to submit comments. We
    appreciate your efforts to gather information on the proposed bill and
    hope that our comments are received in the constructive and beneficial
    manner intended.
                                     ______

      Response to Written Questions Submitted by Hon. Byron L. Dorgan to
                               Hon. W. Ron Allen

                                     ______

       Response to Written Questions Submitted by Hon. John Barrasso to
                               Hon. W. Ron Allen

                                     ______

      Response to Written Questions Submitted by Hon. Byron L. Dorgan to
                                  Will Micklin

       Response to Written Questions Submitted by Hon. John Barrasso to
                                  Will Micklin

                                     ______

                Written Questions Submitted to George Skibine *
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        * Response to written questions was not available at the time this
    hearing went to press.