[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.













                                  
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