[Senate Hearing 112-32]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 112-32
 
 S. 546, THE LITTLE SHELL TRIBE OF CHIPPEWA INDIANS RESTORATION ACT OF 
 2011; S. 636, A BILL TO PROVIDE THE QUILEUTE INDIAN TRIBE TSUNAMI AND 
   FLOOD PROTECTION, AND FOR OTHER PURPOSES; AND S. 703, THE HELPING 
                         EXPEDITE AND ADVANCE 
              RESPONSIBLE TRIBAL HOMEOWNERSHIP ACT OF 2011

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

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 14, 2011

                               __________

         Printed for the use of the Committee on Indian Affairs



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                      0COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. AKAKA, Hawaii, Chairman
                 JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota            JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington           MIKE CRAPO, Idaho
JON TESTER, Montana                  MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
      Loretta A. Tuell, 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 April 14, 2011...................................     1
Statement of Senator Akaka.......................................     1
Statement of Senator Barrasso....................................     2
Statement of Senator Cantwell....................................     5
Statement of Senator Tester......................................     3

                               Witnesses

Causley, Cheryl A., Chairwoman, National American Indian Housing 
  Council........................................................    61
    Prepared statement...........................................    63
Cleveland, Hon. Bonita, Chair, Quileute Tribe....................    36
    Prepared statement with attachments..........................    38
Gottschalk, K. Jerome, Staff Attorney, Native American Rights 
  Fund...........................................................    24
    Prepared statement with attachment...........................    27
Laverdure, Donald ``Del'', Principal Deputy Assistant Secretary, 
  Indian Affairs, U.S. Department of the Interior................     7
    Prepared statement...........................................     8
Sinclair, Hon. John, President, Little Shell Tribe of Chippewa 
  Indians of Montana.............................................    20
    Prepared statement...........................................    21
Skibine, George T., Deputy Assistant Secretary For Management, 
  Indian Affairs, U.S. Department of the Interior................    10
    Prepared statement...........................................    11
Tippeconnie, Robert, Southern Plains Area Vice President, 
  National Congress of American Indians..........................    56
    Prepared statement with attachments..........................    57

                                Appendix

Cherokee Nation, prepared statement..............................    74
Puyallup Tribe of Indians, letter and Tribal Council Resolution 
  No. 210411-A...................................................    71


 S. 546, THE LITTLE SHELL TRIBE OF CHIPPEWA INDIANS RESTORATION ACT OF 
 2011; S. 636, A BILL TO PROVIDE THE QUILEUTE INDIAN TRIBE TSUNAMI AND 
                                 FLOOD 
 PROTECTION, AND FOR OTHER PURPOSES; AND S. 703, THE HELPING EXPEDITE 
                    AND ADVANCE RESPONSIBLE TRIBAL 
                       HOMEOWNERSHIP ACT OF 2011

                              ----------                              


                        THURSDAY, APRIL 14, 2011



                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:20 p.m. in room 
628, Dirksen Senate Office Building, Hon. Daniel K. Akaka, 
Chairman of the Committee, presiding.

          OPENING STATEMENT OF HON. DANIEL K. AKAKA, 
                    U.S. SENATOR FROM HAWAII

    The Chairman. The Committee will come to order.
    This afternoon, the Committee will hold a legislative 
hearing on three bills that will have, without question, a 
significant impact on the lives of individual Indians and will 
improve how tribes are able to use their own resources.
    The first bill, S. 546, the Little Shell Tribe of Chippewa 
Indians Restoration Act of 2011, was introduced by Senator 
Tester. In fact, if I recall correctly, this is the first bill 
that Senator Tester introduced when he became a United States 
Senator. This bill would extend recognition to the Little Shell 
Tribe of Chippewa Indians and make them eligible for all the 
rights and privileges afforded to federally-recognized tribes.
    Senator Tester has been a great champion of this bill, and 
I am sure he will have more to say about the importance of the 
bill in his opening statement.
    The second bill we will discuss today is S. 636, the 
Quileute Indian Tribe Tsunami and Flood Protection Act. Senator 
Cantwell introduced this bill, that will allow the Quileute 
Tribe to settle long-standing boundary issues and move their 
people to safer ground outside a tsunami and flood zone.
    And the third bill we will discuss is S. 703, the Helping 
Expedite and Advance Responsible Tribal Homeownership Act of 
2011. This legislation is known as the HEARTH Act. I was 
pleased to be an original co-sponsor of this bill with my 
partner, Vice Chair and good friend, Senator Barrasso. The 
HEARTH Act will streamline the leasing process for tribes and 
individuals. This will help tribes use their resources in a 
more efficient way, and to provide economic development, 
education, housing and other opportunities for their members.
    Today we will hear from the Administration, the affected 
tribes and Indian organizations on these bills. I encourage any 
other interested parties to submit written comments to the 
Committee. The hearing record will remain open for two weeks 
from today.
    Senator Barrasso, I would like to ask you for your opening 
statement.

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

    Senator Barrasso. Thank you very much, Mr. Chairman. I 
thank you for holding the hearing today, and I greatly 
appreciate your willingness to direct the Committee's attention 
to my bill, S. 703, commonly referred to as the HEARTH Act.
    I want to thank you and Senators Tester and Johnson and 
Thune and Udall for agreeing to co-sponsor this piece of 
legislation. As you know, this Act has been a priority of the 
Committee for a number of years now. During the 111th Congress, 
the Committee approved by voice vote a virtually identical 
bill. This Act provides Indian tribes with an alternative 
process for long-term leases of lands, a process that would not 
require the Secretary of the Interior to approve leases of 
surface lands. I think that would eliminate a lot of red tape.
    I must say, Mr. Chairman, with regard to S. 546, the bill 
which would recognize the Little Shell Tribe, I understand and 
appreciate how important this measure is to Senator Tester, and 
I know it is important to the Little Shell members who support 
it. I do feel compelled to reiterate the comments that I made 
at the Committee's business meeting last week with regard to 
the Chairman's Native Hawaiian bill. In my view, the 
significance of recognizing a tribal group is far-reaching for 
the tribe, for its members and for the United States.
    That is why we have an exacting administrative recognition 
process to determine which native groups should be recognized 
by the Federal Government and which native groups should not. 
The Executive Branch is better suited, in my opinion, than the 
Congress to perform the factual and historical analysis 
necessary to reach the right decision in these cases. That has 
been and continues to be my position on the tribal recognition 
bills that have been referred to the Committee.
    In this particular case, I understand that Little Shell has 
pursued the recognition process and is now appealing a negative 
decision by the Department. I don't know if it is good policy 
for Congress to second-guess the Department in these difficult 
decisions, and for those reasons I cannot support this bill.
    Finally, Mr. Chairman, I want to thank our witnesses for 
traveling long distances to be here today, and I look forward 
to hearing their testimony. Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator.
    Now I would like to call on Senator Tester.

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

    Senator Tester. Thank you, Mr. Chairman, and I want to 
thank Ranking Member Barrasso for his honest thoughts about the 
recognition bill. I do want to get into a little bit of the 
history to refresh and maybe give some additional information. 
But most importantly, I want to thank you, Mr. Chairman, for 
holding this hearing not only on the Little Shell bill, but 
also on the HEARTH Act. I think the HEARTH Act is critically 
important to folks in Indian Country, particularly in the west.
    As we have discussed in past years, Federal recognition of 
the Little Shell Tribe of Montana is long overdue. They have 
been a part of Montana's history and culture for generations. 
The tribe is recognized by the people of Montana, our State 
government, all of our tribal governments, in fact, the 
Montana-Wyoming Tribal Leaders Council just faxed me a letter 
of support yesterday. I would ask, Mr. Chairman, that we could 
include that in today's Committee record.
    The Chairman. Without objection, so ordered.
    Senator Tester. Thank you.
    [The information referred to follows:]

    
    

    Senator Tester. The Native American Rights Fund and other 
national Indian advocacy groups also recognize them as an 
American Indian tribe. Apparently, the only group who doesn't 
recognize the Little Shell of Montana is the U.S. Department of 
the Interior. And actually, in 2000 they did recognize them. 
That was the year they issued a positive decision stating that 
in its petition for Federal recognition, the tribe met all 
seven of the mandatory criteria. Let me repeat that. In the 
year 2000, the Department of the Interior found the Little 
Shell Tribe of Montana had met all seven of the mandatory 
criteria.
    But the Department wanted more paperwork, so the tribe 
submitted 10,000 pages of additional documents and the agency 
reversed their decision. That is why we are here today.
    So Mr. Chairman, I understand the Department of the 
Interior is doing a lot of important things. I have friends all 
over that Department, some of them here today. For the most 
part, we work very, very well together. But on this issue, I 
think we can do better.
    So let me be clear about one thing. I would much rather 
have the tribes get recognition through the administrative 
process, as the Ranking Member indicated. These critical 
decisions should be based on history and science and culture, 
rather than the politics of today.
    However, we do have alternative ways for recognition of 
tribes, because the administrative process isn't always 
perfect. It doesn't always work the way it was intended, and 
the Little Shell Tribe is a good example of one of the few 
times Congress should override the administrative process. We 
have held hearings on past versions of this bill, and the 
broken recognition process in general.
    People familiar with the Little Shell are well aware of 
their efforts to gain recognition. Early in the late 1800s, 
early 1900s, Congress appropriated money to purchase a land 
base for the tribe, but the BIA didn't do it. In 1934, after 
Congress passed the Indian Reorganization Act, the BIA told 
Little Shell it couldn't recognize them because the tribe had 
no land base.
    In 1940, the BIA told them that although they deserved 
recognition, the agency didn't have the money any more. And if 
you fast forward to 1978, six months before BIA even issued its 
final regulations that created the Federal acknowledgment 
process, the Little Shell Tribe submitted its application. For 
14 years, this homeless, impoverished Indian tribe in rural 
Montana collected documents and other evidence to prove their 
historical evidence. Despite their persistence, and a lot of 
help from good advocates, the administrative process failed 
them once again.
    In 2009, nine years after the announcement of a preliminary 
positive decision, and collecting even more evidence of them as 
a tribe, the BIA changed its mind and wrongly denied their 
petition for recognition. My bill simply seeks to right that 
wrong. Mr. Chairman, the bill simply requires the Department of 
the Interior to treat the members of the Little Shell Tribe the 
same way they treat every other American Indian Tribe in our 
State and in our Nation. Recognizing the Little Shell Tribe of 
Montana is the right thing to do, and from my perspective, it 
is long overdue.
    So I want to thank you again for holding this hearing, and 
thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Tester, for your 
opening statement.
    Senator Cantwell, I recognize you for an opening statement.

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

    Senator Cantwell. Thank you, Mr. Chairman, and I want to 
thank you and Vice Chairman Barrasso for holding this important 
hearing, particularly on the Quileute Tribe Tsunami Protection 
bill, and for doing so so quickly.
    I also want to thank all the witnesses for coming here 
today, especially Chairwoman Bonita Cleveland for coming all 
the way from La Push, in my home State of Washington, to 
testify on the second panel. She not only had to fly 2,000 mile 
but also had to drive four hours and take a ferry ride to get 
here from the Quileute Reservation.
    The Quileute reside on a one square mile reservation 
surrounded by the Olympic National Park, and bluffs. And the 
Quileute have one of the most beautiful beaches in the world. 
While the setting may be very picturesque, the tribe faces 
danger every day. Because of the small size of the tribe's 
reservation, most of their tribal facilities, including their 
day care center, elder center, tribal office and home sites sit 
directly in the path of a potential tsunami.
    Just a few weeks ago, in the early morning, the Quileute 
tribe evacuated several hundred people to higher ground because 
of the potential tsunami caused by the large quake in Japan 
hours earlier. Fortunately, the tribe had hours of advance 
warning to start the evacuation and the tsunami that eventually 
arrived was small.
    However, a tsunami caused by an earthquake on the Cascadia 
Subduction Zone Fault, just off Washington coast, would arrive 
much more quickly and without warning. So the tribe would only 
have minutes to evacuate hundreds of people.
    In an effort to help itself, the tribe has moved as many 
people to higher ground as possible. But there is very little 
usable space left within the reservation that is not within a 
tsunami flood zone. So there is no safe, buildable land on the 
reservation.
    The goal of this legislation is to help the tribe move all 
of its tribal facilities out of the tsunami zone and away from 
the threat of flooding from the river. And this sensible 
legislation would increase economic opportunity and safeguard 
the Quileute families and their property from the devastating 
tsunami and floods. This legislation is the product of 
government-to-government negotiations between the Quileute and 
the National Park Service, with the goals of helping the tribe 
and moving forward in the region.
    Included in this legislation, through negotiations with the 
tribe and the Park, is an agreement that fixes the northern 
border of the reservation, and ensures Park visitors access to 
some of the most beautiful beaches on the Washington coast. 
Helping the Quileute Tribe move their facilities 800 feet up 
and out of the tsunami zone is the primary purpose of this 
legislation. However, it will ensure visitors access to Second 
Beach, Rialto Beach, and preserve thousands of acres of Olympic 
National Park as wilderness.
    Again, I thank the Chairman and the Vice Chairman for 
holding this hearing. I look forward to hearing from the 
Department of the Interior on this legislation.
    The Chairman. Thank you very much, Senator Cantwell, for 
your opening statement.
    With that, I welcome the witnesses. I know that many of you 
have traveled far to be with us today, and we greatly 
appreciate your willingness to testify in this hearing. We will 
have three panels to hear from today, so I ask that you limit 
your oral testimony to five minutes. Your full written 
testimony will be included in the record.
    I welcome our first panel of witnesses to the Committee 
today. Mr. Donald Laverdure, the Principal Deputy Assistant 
Secretary of Indian Affairs at the Department of the Interior. 
And Mr. George Skibine, the Deputy Assistant Secretary of 
Management, at the Department of the Interior.
    I understand that Mr. Laverdure will testify on the HEARTH 
Act and the Quileute legislation, and Mr. Skibine will testify 
on the Little Shell legislation. Mr. Laverdure, will you please 
proceed with your testimony?

       STATEMENT OF DONALD ``DEL'' LAVERDURE, PRINCIPAL 
       DEPUTY ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S. 
                   DEPARTMENT OF THE INTERIOR

    Mr. Laverdure. Thank you, and good afternoon, Mr. Chairman, 
Senator Tester. My name is Donald ``Del'' Laverdure, and I'm 
the Principal Deputy Assistant Secretary for Indian Affairs at 
the Department of the Interior. I am pleased to be here today 
to present the Department's views on these two bills.
    The first is S. 636, which is a bill to provide the 
Quileute Indian Tribe tsunami and flood protection through 
conveyances of land from the National Park Service. And the 
second bill, S. 703, is the HEARTH Act, the Helping Expedite 
and Advance Responsible Tribal Homeownership Act.
    First, on the Quileute bill, the Department supports S. 
636. We know that the Quileute is a smaller, federally-
recognized tribe in the State of Washington. The tribe's 
current reservation consists of approximately 880 acres and is 
home to approximately 375 residents. The reservation is 
bordered to the north by the Quileute River and to the east and 
south by Olympic National Park. Most of the reservation is 
located within the flood zone. And much of the tribal 
infrastructure, as described earlier, including their 
administration buildings, schools, the elder center and 
housing, is within the tsunami zone.
    Recent tsunamis in the Pacific Ocean, including the one 
which struck Japan last month and created a huge disaster, 
clearly demonstrate the risk faced by the tribe and its 
citizens and the need to move housing and infrastructure 
inland. Therefore, this legislation would make available to the 
Quileute Tribe 785 acres of land currently within the boundary 
of Olympic National Park, in order to facilitate the tribe's 
move to new lands on higher ground and away from the frequent 
flooding and tsunami risk that the tribe must currently contend 
with.
    S. 636 also seeks to protect the natural resources of the 
land removed from the park, to encourage agreements between the 
National Park Service and the tribe on matters related to the 
land, and to designate approximately 4,100 acres of Olympic 
National Park lands as wilderness. The National Park Service 
has worked collaboratively with the tribe over many years to 
address numerous issues. As such, the Department supports S. 
636 in its balance of tribal safety and protection of park 
resources as well as visitor access.
    That concludes my statement on S. 636.
    The Department also strongly supports S. 703, the HEARTH 
Act, which would amend certain sections of 25 U.S.C. Section 
415, also known as the Indian Long-Term Leasing Act, to permit 
tribes that choose to develop their own leasing program to 
approve and enter into certain leases without prior express 
approval from the Secretary of Interior. Under this 
legislation, willing tribes would initially submit their own 
leasing regulations to the Department for approval.
    Following secretarial approval of such leasing regulations, 
tribal governments would process leases for tribal trust land 
at the local level pursuant to their own laws, and without a 
requirement for further approval by the Secretary. This has the 
potential to significantly reduce the time it takes to approve 
leases for homes and small businesses.
    Pursuant to the HEARTH Act, leases would be limited to an 
initial term of 25 years, but could be renewed up to two 
additional terms of 25 years each. The HEARTH Act also requires 
the Department to review tribal leasing regulations within 120 
days, but does provide us with the flexibility to extend this 
time period in consultation with the applicant tribe.
    The HEARTH Act also ensures that the Department will retain 
the authority to fill its trust obligation, to protect tribal 
trust lands through the enforcement or cancellation of leases 
approved under tribal regulations or the rescission of 
secretarial approval of tribal leasing regulations where it is 
appropriate. At the same time, the HEARTH Act ensures that the 
United States will not be liable for losses incurred as a 
result of leases approved under their own tribal leasing 
regulations.
    Finally, the HEARTH Act would require the BIA to prepare 
and submit a report to Congress regarding the history and 
experience of Indian tribes that have chosen to assume this 
responsibility for operating certain Indian Land Title and 
Records Office, or LTRO, functions from the Bureau. Such review 
would include consultation with the Department of Housing and 
Urban Development, Office of Native American Programs, and 
those tribes managing LTRO functions. The Department agrees 
with the factors to be considered in the review.
    Again, the Department strongly supports S. 703, and wants 
to continue our conversations with the Committee on further 
refinements to the text of the bill. In closing, I look forward 
to working with this Committee in continued support of tribal 
nations. This concludes my statement, and I am happy to answer 
any questions that you may have.
    [The prepared statement of Mr. Laverdure follows:]

   Prepared Statement of Donald ``Del'' Laverdure, Principal Deputy 
  Assistant Secretary, Indian Affairs, U.S. Department of the Interior
S. 636

    Mr. Chairman and members of the Committee, thank you for the 
opportunity to appear before you today to present the Department of the 
Interior's views on S. 636, a bill to provide the Quileute Indian Tribe 
tsunami and flood protection, and for other purposes.
    The Department supports S. 636. This legislation would make 
available to the Quileute Indian Tribe 785 acres of land currently 
within the boundary of Olympic National Park in order to facilitate the 
tribe's move to new lands on higher ground, away from the frequent 
flooding and the tsunami risk that the tribe currently must contend 
with. The legislation also seeks to protect the natural resources of 
the land removed from the park, to encourage agreements between the 
National Park Service and the tribe on matters related to the land, and 
to designate approximately 4,100 acres of Olympic National Park as 
Wilderness.
    The Quileute Indian Tribe is a small, Federally recognized tribe in 
the State of Washington. The Quileute Indian Reservation, established 
in 1889, is located on the Olympic Peninsula along the Pacific Ocean. 
The reservation is bordered to the north by the Quillayute River and to 
the east and south by Olympic National Park. It consists of 
approximately 880 acres and is home to about 375 residents. Most of the 
reservation is located within the flood zone and much of the tribal 
infrastructure, including their administrative buildings, school, elder 
center, and housing is within the tsunami zone. Recent tsunamis in the 
Pacific Ocean, including the one which struck Japan last month, clearly 
demonstrate the risk faced by the tribe and the need to move housing 
and infrastructure inland.
    The 785 acres of land within Olympic National Park that would be 
held in trust for the tribe under S. 636 are in two parcels. The 
northern parcel, known as Thunder Field, is comprised of approximately 
510 acres along the south side of the Quillayute River. A 275-acre 
parcel, 220 acres of which are designated wilderness, lies immediately 
south of the current reservation boundary. There are no park-owned 
facilities or trails in this area, and there are few opportunities for 
park visitors.
    In addition to providing for the 785 acres to be held in trust by 
the United States for the benefit of the Quileute Indian Tribe, and to 
excluding this land from the boundary of Olympic National Park, S. 636 
also would:

   designate approximately 4,100 acres of new wilderness within 
        Olympic National Park as additions to the existing Olympic 
        Wilderness;

   provide for placing in trust for the benefit of the tribe 
        the approximately 184 acres of non-Federal land that the tribe 
        has recently acquired;

   express the intent of Congress regarding preservation, 
        protection and alteration of the 785 acres, and cooperative 
        efforts between the National Park Service and the tribe.

   provide specific restrictions on the use of the 785 acres in 
        order to protect the land's resources; and

   provide for continued public access and use of park and 
        tribal lands at Second Beach, Rialto Beach, and along the 
        Quillayute and Dickey Rivers.

    The National Park Service has worked collaboratively with the tribe 
over many years to address these issues. As such, the Department 
supports S. 636 and its balance of tribal safety with protection of 
park resources and visitor access.

S. 703
    Good afternoon Mr. Chairman and members of the Committee. My name 
is Del Laverdure and I am the Principal Deputy Assistant Secretary for 
Indian Affairs at the Department of the Interior. I am pleased to be 
here today to present the Department's views regarding S. 703, the 
Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) 
Act.
    This Administration continues to support tribal self-determination, 
and we recognize that tribal control over tribal resources is intrinsic 
to this policy.
    We understand that tribal homelands are essential to the health, 
safety, and welfare of the First Americans, and that it is important 
for Indian tribes to have the ability to determine how their homelands 
will be utilized. This is why the Department is in the process of 
revising our own regulations governing leasing on Indian lands. Our 
revisions will streamline the process by which leases of Indian lands 
are approved, thereby promoting homeownership, economic development, 
and renewable energy development on tribal lands.
    The HEARTH Act is consistent with this effort, and we are pleased 
to strongly support this legislation. S. 703 would amend certain 
sections of 25 U.S.C. Sec. 415 (the Indian Long-Term Leasing Act) to 
permit tribes that choose to develop their own leasing program to 
approve and enter into certain leases without prior express approval 
from the Secretary of the Interior. Under this legislation, willing 
tribes would initially submit their own leasing regulations to the 
Secretary of the Interior for approval. Following Secretarial approval 
of such leasing regulations, tribal governments would process leases 
for tribal trust land at the tribal level, pursuant to their own laws, 
without a requirement for further approval of the Secretary. This has 
the potential to significantly reduce the time it takes to approve 
leases for homes and small businesses.
    Pursuant to the HEARTH Act, leases would be limited to an initial 
term of 25 years, but could be renewed for up to two additional terms 
of up to 25 years each. Tribes could also approve leases for public, 
religious, educational, recreational, or residential purposes for a 
term of up to 75 years where permitted by tribal regulations. Tribal 
leasing regulations would not apply to mineral leases or leases of 
individual Indian allotments.
    As noted above, under S. 703, tribes that desire to develop and 
implement their own regulations governing leasing would be able to 
submit tribal regulations for approval by the Secretary of the 
Interior. The Secretary would be required to approve tribal regulations 
that are consistent with the Department's own regulations governing 
leasing on Indian lands. The HEARTH Act requires the Department to 
review tribal leasing regulations within 120 days, but does provide us 
with the flexibility to extend this time period in consultation with 
the affected tribe.
    The HEARTH Act ensures that the Department will retain the 
authority to fulfill its trust obligation to protect tribal trust lands 
through the enforcement or cancellation of leases approved under tribal 
regulations, or the rescission of Secretarial approval of tribal 
leasing regulations, where appropriate. At the same time, the HEARTH 
Act ensures that the United States will not be liable for losses 
incurred as a result of leases approved under tribal leasing 
regulations.
    Finally, the HEARTH Act would require the BIA to prepare and submit 
a report to Congress regarding the history and experience of Indian 
tribes that have chosen to assume responsibility for operating certain 
Indian Land Title and Records Office (LTRO) functions from the BIA. 
Such review would include consultation with the Department of Housing 
and Urban Development Office of Native American Programs, and those 
Indian tribes managing LTRO functions. The Department agrees with the 
factors to be considered in the review.
    We anticipate that the HEARTH Act will ultimately reduce the costs 
of implementing tribal leasing programs for the Federal Government by 
allowing willing Tribes to assume control of leasing on tribal lands. 
By increasing efficiency in the implementation of tribal leasing 
programs, the HEARTH Act will go a great distance in promoting 
homeownership, economic development, and renewable energy development 
by restoring tribal authority over tribal lands. The Department 
strongly supports S. 703 and wants to continue our conversations with 
the Committee on further refinements to the bill text. In closing, I 
look forward to working with this Committee in continued support of 
Indian tribes.
    Thank you for the opportunity to present testimony on S. 703. I 
will be happy to answer any questions you may have.

    The Chairman. Thank you very, very much for your testimony.
    Mr. Skibine, will you please proceed with your testimony?

       STATEMENT OF GEORGE T. SKIBINE, DEPUTY ASSISTANT 
        SECRETARY FOR MANAGEMENT, INDIAN AFFAIRS, U.S. 
                   DEPARTMENT OF THE INTERIOR

    Mr. Skibine. Thank you very much, Mr. Chairman, Senator 
Tester. My name is George Skibine, I am the Deputy Assistant 
Secretary for Management, Indian Affairs at Interior. I am here 
today to provide the Administration's testimony on S. 546, the 
Little Shell Tribe of Chippewa Indians Restoration Act of 2011.
    Essentially, the Department is not opposed to enactment of 
S. 546. We recognize that Congress has the authority to 
recognize American Indian groups as Indian tribes with a 
government-to-government relationship with the United States.
    S. 546, the Little Shell Tribe, if enacted, would 
acknowledge the Little Shell Tribe of Chippewa Indians of 
Montana. This group is Petitioner Number 31 in the Federal 
acknowledgment process and has submitted its letter of intent a 
long time ago, back in 1978. I just want to point out that in 
1978, I was in the second year of my career at Interior. I was 
a much younger man, just almost as good looking as Mr. 
Laverdure here. Those days are gone, so I am making that point 
to say that this has been a very long process for the Little 
Shell Band, and one that is, because of its length, is a cause 
of concern for our boss, Assistant Secretary Larry Echo Hawk.
    At any rate, the decision became final in 2009. It is not 
actually final for the Department, it was final for the 
Assistant Secretary. But under our regulations, the Little 
Shell Band filed a request for reconsideration before the 
Interior Board of Indian Appeals in 2010. And from what I 
understand, all briefings before the Board have been completed, 
and a decision should be coming fairly closely.
    In its final determination, the Department denied Federal 
acknowledgment to the Little Shell Tribe because the evidence 
showed, in our view, that the group failed to meet three of the 
seven mandatory criteria. Nevertheless, having not been 
acknowledged, the tribe is seeking Congressional redress at 
this point. We agree that this Congress should only exercise 
this option sparingly, and only in instances where there is an 
overriding reason to bypass the regulatory process. But I think 
Senator Tester in his opening comment specified that this 
perhaps was one such instance.
    This concludes my comments on S. 546. We would like to work 
with the Committee as the bill moves forward regarding some 
technical issues we have with some of the findings in the bill. 
Thank you very much.
    [The prepared statement of Mr. Skibine follows:]

Prepared Statement of George T. Skibine, Deputy Assistant Secretary for 
      Management, Indian Affairs, U.S. Department of the Interior

    Good morning, Mr. Chairman and Members of the Committee. My name is 
George Skibine. I am the Deputy Assistant Secretary for Management--
Indian Affairs at the Department of the Interior (Department).
    I am here today to provide the Administration's testimony on S. 
546, the Little Shell Tribe of Chippewa Indians Restoration Act of 
2011.
    The recognition of another sovereign is one of the most solemn and 
important responsibilities delegated to the Secretary of the Interior. 
The Department believes that the Federal acknowledgment process allows 
for the uniform and rigorous review necessary to make an informed 
decision establishing this important government-to-government 
relationship. However, we also acknowledge that under the United States 
Constitution, Congress has the authority to recognize American Indian 
groups as Indian tribes with a government-to-government relationship 
with the United States. For this reason, we do not oppose enactment of 
S. 546.

Background
    In 1978, the Department promulgated regulations for the Federal 
process for groups seeking acknowledgment as Indian tribes. These 
Departmental regulations are found at Part 83 of Title 25 of the Code 
of Federal Regulations (25 CFR part 83) ``Procedures for Establishing 
that an American Indian Group exists as an Indian Tribe.''
    To be acknowledged under the Department's Part 83 regulations, 
petitioning groups must demonstrate that they meet each of seven 
mandatory criteria. The petitioner must:

        1. demonstrate that it has been identified as an American 
        Indian entity on a substantially continuous basis since 1900;

        2. show that a predominant portion of the petitioning group 
        comprises a distinct community and has existed as a community 
        from historical times until the present;

        3. demonstrate that it has maintained political influence or 
        authority over its members as an autonomous entity from 
        historical times until the present;

        4. provide a copy of the group's present governing document 
        including its membership criteria;

        5. demonstrate that its membership consists of individuals who 
        descend from an historical Indian tribe or from historical 
        Indian tribes that combined and functioned as a single 
        autonomous political entity and provide a current membership 
        list;

        6. show that the membership of the petitioning group is 
        composed principally of persons who are not members of any 
        acknowledged North American Indian tribe; and

        7. demonstrate that neither the petitioner nor its members are 
        the subject of congressional legislation that has expressly 
        terminated or forbidden the Federal relationship.

    A criterion shall be satisfied if the available evidence 
establishes a reasonable likelihood of the validity of the facts 
relating to that criterion. A petitioner must satisfy all seven of the 
mandatory criteria in order for the Department to acknowledge the 
continued tribal existence of a group as an Indian tribe under the Part 
83 regulatory process.
    The Department's acknowledgment process provides the thorough and 
deliberate evaluation which must occur before the Department 
acknowledges a group's tribal status. These decisions must be fact-
based, equitable, and thus legally defensible. While Congress may grant 
recognition to Indian tribes, the Department's position is that 
legislative action should be reserved for those cases where there is an 
overriding reason or reasons to bypass the Department's regulatory 
process.

S. 546, the Little Shell Tribe of Chippewa Indians Restoration Act
    S. 546, the Little Shell Tribe of Chippewa Indians Restoration Act 
of 2011 would acknowledge the Little Shell Tribe of Chippewa Indians of 
Montana. This group, Petitioner #31 in the Department's Federal 
acknowledgment process, submitted its letter of intent to the 
Department in 1978, and completed documenting its petition in 1995. A 
Final Determination against the federal Acknowledgment of the Little 
Shell Tribe of Chippewa Indians of Montana was issued on October 27, 
2009, and published in the Federal Register on November 3, 2009, 74 Fed 
Reg. 56861. The decision is not final and effective for the Department 
because the Little Shell Tribe filed a request for reconsideration 
before the Interior Board of Indian Appeals (IBIA) on February 1, 2010. 
All briefings before the IBIA have been completed, and the matter is 
ready for a decision.
    In its Final Determination, the Department denied Federal 
acknowledgment to the Little Shell Tribe because the evidence showed 
that the group failed to meet three of the seven mandatory criteria in 
25 CFR Part 83. Having been denied acknowledgment as an Indian tribe 
through the Department's regulatory process, the Little Shell Tribe now 
has turned to Congress for federal acknowledgement, since there is no 
other avenue to obtain tribal status. It is the position of the 
Department that Congress should use its power to recognize American 
Indian groups through legislation sparingly, and only in instances 
where there is an overriding reason to bypass the Department's 
regulatory process.
    In closing, if the Congress chooses to move forward with S. 546, we 
would like to work with the Committee on clarifying some issues related 
to the Department's findings.
    This concludes my prepared statement. I am happy to answer any 
questions the Committee may have. Thank you.

    The Chairman. Thank you very much, Mr. Skibine.
    Let me ask this question to Mr. Laverdure. Can you describe 
the steps that would be taken following enactment of this 
legislation to transfer the lands into trust for the Quileute 
Tribe? And comment on how long you think the process would 
take.
    Mr. Laverdure. Thank you, Mr. Chairman. In truth, in the 
language of the bill, it appears that the language would 
require mandatory acquisition as opposed to discretionary. And 
the transfer of those lands should, I couldn't give a specific 
time period, but it should move expeditiously because they are 
already in Federal title, and the transfer would be from the 
National Park Service over to the Bureau of Indian Affairs on 
behalf of the Quileute Nation.
    The Chairman. When you say expeditiously, can you give me a 
time frame on that?
    Mr. Laverdure. I wish I could, Mr. Chairman, other than to 
say that we will move it as fast as we can, assuming the bill 
passes.
    The Chairman. Mr. Laverdure, if the HEARTH Act is enacted 
and tribes seek the authority it grants, is the Department 
prepared to put in place the internal processes to make sure 
the leasing regulations are reviewed in a timely manner?
    Mr. Laverdure. Yes, Mr. Chairman. In fact, the Department 
is undergoing consultation on the revision of our existing 
leasing regulations, which have been agricultural regulations 
and non-agriculture. And during this consultation period, we 
have had three sessions recently in the last few weeks. We are 
going to take a revision of these 50-year old regulations so 
that they reflect modern times for economic development, 
residential leasing and the like.
    Because of the significant changes, all of that will help 
us expedite and implement the HEARTH Act, should it be passed 
by Congress and signed by the President.
    The Chairman. Thank you.
    Mr. Skibine, at a hearing before this Committee in November 
2009, you stated that the Department is committed to reforming 
the acknowledgment process and is currently exploring ways to 
improve that process. Can you please provide the Committee with 
an update on your efforts to reform the acknowledgment process?
    Mr. Skibine. Yes, Mr. Chairman, thank you for this 
question. When Assistant Secretary Echo Hawk was before this 
Committee for confirmation, he made a commitment at the 
instigation of some of the members of the Committee to take a 
very hard look at the current process for acknowledgment and to 
essentially see what could be done. So he instructed me to 
start working on this process.
    And what we did over the past two years is develop 
potential appropriate amendments to the regulation in 25 C.F.R. 
Part 83 that would essentially streamline the process. We are 
trying to get a regulation that will have a definite beginning 
and where there will be a definite ending, so we will know 
exactly how long this process will take. Obviously, it is 
taking too long right now.
    So that is what we are developing. We are looking at the 
standard for review of the seven mandatory standards. We are 
taking a look at the standards themselves to see if those 
should be changed because of the issue that we have found with 
implementation of the standard. What I propose is to shorten 
the process by eliminating review before the Interior Board of 
Indian Appeals, which is where Little Shell is now. But that 
process in the past could take two or three years, in addition 
to where they are right now.
    So we are trying to eliminate that, and instead provide 
some sort of administrative forum before the Assistant 
Secretary makes a final decision. What I have found is in 
effect that, I think some of the groups that are petitioning 
also feel that it is not a fair process, or necessarily 
impartial. We want to inject an individual in there that would 
essentially be submitting a recommended decision to the 
Assistant Secretary that would be outside of the process right 
now.
    Also what I want to do is eliminate the endless extensions 
that are granted under the current regulations. Granted, they 
are granted both to the petitioner and to the Government. But 
essentially what I have seen is that tends to lengthen the 
process considerably.
    So these are the kinds of things that we are looking to do. 
A draft has been developed by the staff. It is now under review 
by our political group. Mr. Del Laverdure is recused from the 
Little Shell matter, but in his official capacity as Principal 
Deputy he would be involved in that process of looking at the 
regulations overall. And potentially, then afterwards there 
would be some consultation with Indian tribes, then a proposed 
rule in the Federal Register and eventually a final rule.
    I think Assistant Secretary Echo Hawk is committed to have 
that process completed before the end of the first term of the 
Obama Administration.
    The Chairman. I am glad to hear you say that you also 
consulted with the tribes. Is this normally the practice of 
working on issues like this, to consult with the tribes?
    Mr. Skibine. Yes. We have a consultation policy at the 
Department of the Interior, and in Indian Affairs, where we 
definitely consult with Indian tribes on matters affecting 
them. So yes, we would do that normally.
    The Chairman. Mr. Skibine, can you tell me who the Obama 
Administration named as the lead person handling Federal 
recognition decisions at the Department?
    Mr. Skibine. The Assistant Secretary, Larry Echo Hawk, is 
the decision maker for Secretary Salazar on acknowledgment 
decisions. If he is recused from that matter, and he is recused 
from the Little Shell matter because of a family conflict, then 
essentially, at the time the decision was left to me as I was 
then the Acting Principal Deputy. Now Mr. Del Laverdure is the 
Principal Deputy, but he is also recused from Little Shell, 
because of family issues, I suppose, and as a result, that is 
why I am here before you today.
    The Chairman. Well, thank you very much for revealing that 
you do pay attention to the relationships. I really want to be 
sure we can cut back the persons that are handling this.
    Let me call on Senator Tester for his questions.
    Senator Tester. Thank you, Mr. Chairman. I want to thank 
both Del and George for being here today. Del, it is always 
good to see you, whether it is here or back in Montana. I 
appreciate your service.
    The same with you, George. I appreciate your Service very, 
very much, even though we have a disagreement. Now that I know 
you are the decision maker, now we really know where to put the 
blame.
    [Laughter.]
    Senator Tester. I would just say this. Back in 2000, in my 
opening statement I talked about the Department of the Interior 
got a positive finding for the Little Shell. They met seven out 
of seven. And I think if I heard your testimony correctly, they 
didn't meet three out of seven.
    Have those seven things changed?
    Mr. Skibine. No, they have not.
    Senator Tester. Okay, so what has changed? Did somebody 
blow it in 2000 and make a wrong decision? Have the facts 
changed around it? What has changed that ten years ago, a 
decision could be made that they met the criteria, and ten 
years later, they barely made half of them?
    Mr. Skibine. I think that what happened is that the staff 
at Interior, in examining the petition after 2000, and after 
the submission of comments, decided that in looking at the 
evidence that several departures from precedent that were made 
by Assistant Secretary Gover in his 2000 determination were in 
the opinion of the staff not warranted. And they went at length 
to explain why they didn't feel those departures were 
warranted.
    That is why in the end there was a change in the decision.
    Senator Tester. Yes, but the change wasn't made in 2000, 
was it?
    Mr. Skibine. No. The decision in 2000 was a proposed 
decision. Then it went out for comment. And in the Federal 
Register notice, in fact, the Secretary at the time did ask for 
comments on the departure from precedent. In the end, we felt 
that the departure from precedents were not warranted, and that 
is why the final decision came about.
    Senator Tester. Can you tell me what the three things they 
didn't meet, what were they if you can tell me briefly?
    Mr. Skibine. Yes. The first one is that the petitioners 
were not identified as an Indian entity since 1900 on a 
substantially continuous basis. That is criterion A. The second 
one, that the Little Shell did not provide sufficient evidence 
of a distinct community from historical time to the present. 
And third, that the petitioner did not provide sufficient 
evidence of a political influence from historical time to the 
present.
    Now, I want to point out that because the decision is 
pending before the Interior Board of Indian Appeals, so the 
decision is not final for the Department, it is sort of an 
appeal process, I feel uncomfortable----
    Senator Tester. I understand that. I won't pin you down on 
that, we can wait until later. Hopefully, it won't be 
necessary, but we can wait until later.
    So when the facts are gathered, back in 2000 when the facts 
were gathered from the Little Shell and anybody else you are 
gathering facts from, and the information is sorted through, 
who makes the decision on those facts, you or the staff?
    Mr. Skibine. The ultimate decision maker is me as the 
Acting Principal Deputy at the time.
    Senator Tester. Who is the real decision maker?
    Mr. Skibine. Well, the fact is this. The fact is that the 
staff of the Federal acknowledgment team essentially puts 
together the final decision package. They have a team of very 
qualified doctors in various fields. And essentially, the final 
decision, it is a document that is over 25 pages long with 
appendices.
    Senator Tester. Is this full-time staff, or are these folks 
that work outside on a contract basis?
    Mr. Skibine. They are full-time staff.
    What I have found is, in fact, that by the time the 
decision comes to the Assistant Secretary, it is, in this 
particular case, we spent months going back reading and reading 
it again and going back to the staff. But in effect, it is 
essentially well nigh impossible to change that finding.
    Senator Tester. It is impossible?
    Mr. Skibine. It is practically impossible. Because I am not 
an expert on history, on genealogy and stuff like this. So this 
is why, when we are proposing revisions to these regulations, I 
think we need to somehow alter the process to provide for a 
decision maker to have a somewhat more of a view from----
    Senator Tester. So is part of the process sorting through 
the information, was any political appointee involved in that 
process?
    Mr. Skibine. No, they were not.
    Senator Tester. These were all hired folks?
    Mr. Skibine. Right.
    Senator Tester. Okay. So you talk about the fact that it is 
very, very difficult to overturn or to undo what they have 
done. And I get that.
    Let me talk about the Indian Board of Appeals. Who serves 
on that?
    Mr. Skibine. There are administrative law judges that are 
appointed, they are not political appointments. They serve as 
the judges in the Office of Indian Appeals.
    Senator Tester. Who staffs them?
    Mr. Skibine. They have attorneys, career attorneys who 
staff them.
    Senator Tester. Are any of the people that staff them, or 
any of the people on the Board of Indian Appeals part of the 
group that makes the initial decision whether to recognize or 
not recognize?
    Mr. Skibine. No.
    Senator Tester. Okay. So all these folks are outside the 
agency that you contract with them?
    Mr. Skibine. Yes.
    Senator Tester. That are on the Indian Board of Appeals?
    Mr. Skibine. That is correct.
    Senator Tester. How often are they turned over? Are they 
turned over per Administration or every two years or what?
    Mr. Skibine. The board members?
    Senator Tester. Yes.
    Mr. Skibine. The Interior Board of Indian Appeals judges 
are permanent appointments.
    Senator Tester. They are permanent appointments. So they 
were there in 2000?
    Mr. Skibine. Well, I don't know that. I am not sure, maybe 
some of them were. I cannot answer that question.
    Senator Tester. Okay. You could probably find me that 
answer, couldn't you?
    Mr. Skibine. Of course.
    Senator Tester. Okay. I would like to have that.
    Can you answer me if the Interior Board of Indian Appeals 
has ever reversed a negative determination on recognition?
    Mr. Skibine. I think they have. I think what they do is 
remand the matter back to the Assistant Secretary if they have 
issues with that.
    Senator Tester. Could you tell me when they have done that?
    Mr. Skibine. I can provide that answer, but I am not 
familiar with the specific times when this has happened.
    Senator Tester. Okay. The reason I ask is because I don't 
believe they ever have. So if I am wrong on that, I would love 
to get the right information.
    Okay, first of all, I appreciate the fact that you are not 
opposed to the bill. And I also appreciate the fact that you 
came out with the decision, even though I think it was an 
incorrect decision. Ultimately, in the end, it still is ironic 
to me that a decision, first of all, there was a land base that 
was meant to be acquired back in 1908, 1914 and 1925, BIA never 
did it. And this has been going on far longer, far longer than, 
and John Sinclair, the last time he was here to testify, his 
dad started this. Maybe even before that, maybe it was his 
granddad.
    And every political entity in the State of Montana, every 
tribe thinks this is the right thing to do. We have people that 
have been disqualified because they have to be connected with 
Little Shell somehow. And all this stuff just doesn't make any 
sense if they haven't been around forever. And they have been 
around forever. But we will continue this process, and I also 
appreciate the fact you are trying to streamline this process, 
because I think it is very, very tough. So that is good.
    Has the Department ever reversed a positive proposed 
finding on Indian recognition?
    Mr. Skibine. You mean besides Little Shell?
    Senator Tester. Yes.
    Mr. Skibine. I am not aware of any, but I can also find 
that information.
    Senator Tester. That would be good.
    [The information referred to follows:]

    
    
    Senator Tester. Thank you, Mr. Chairman. Sorry I took so 
much time.
    The Chairman. Thank you. We will have a second round on 
these questions, Senator Tester.
    Senator Cantwell?
    Senator Cantwell. Thank you, Mr. Chairman.
    And Mr. Laverdure, thank you so much for your testimony. 
You are in support of this legislation S. 636, is that correct?
    Mr. Laverdure. That is correct.
    Senator Cantwell. And you believe that we have settled any 
concerns or the reservation and the northern boundary and all 
of that?
    Mr. Laverdure. All their concerns have been met.
    Senator Cantwell. Good. That is all I actually had, Mr. 
Chairman. I will quit while we are ahead. My questions are for 
the next panel. Thank you.
    The Chairman. Thank you very much, Senator Cantwell.
    Mr. Skibine, let me follow up with a question that has been 
around for a while. This Committee and the Congress have a 
successful record of restoring and recognizing Indian tribes. 
Yet we have heard over the years many times about the 
administrative process as to how lengthy, burdensome, expensive 
and non-transparent it is. Will you tell the Committee what you 
are doing to rectify this process?
    Mr. Skibine. Well, as I think I have, in one of the 
questions earlier, what I said is we are in the process of 
revising the regulations in 25 C.F.R. Part 83, and in order, in 
the revisions, we have a draft that is now under review by the 
political team. The impetus, what we are trying to do, 
essentially, is to make it a finite process where there is a 
definite beginning, there is a definite end. We are trying to 
shorten the time frames, so that it doesn't take so long. We 
are trying to eliminate some of the extensions that occur under 
current regulations. We are trying to also hopefully eliminate 
a BIA review, because that is an additional process that can 
take several years.
    And because, frankly, in my opinion, the review by the IBIA 
of an Assistant Secretary's decision, that is the only time 
that the Interior Board of Indian Appeals reviews decisions 
that are made by the Assistant Secretary for Indian Affairs. In 
all other cases, the IBIA can only review decisions of regional 
directors or underlings, but not of the Assistant Secretary. So 
it is unique and not the common practice for the Board to 
review those decisions.
    We are also looking at the burden of proof. We want to 
clarify what the burden of proof is for meeting the standards. 
And I think we are also looking at, taking a very close look at 
the standards themselves, 1 through 7 or through A to whatever, 
especially the first three. The first one requires 
identification on a substantially continuous basis since 1900. 
I think the precedent indicates that this has to be every 10 
years, it has to be identification from a non-Indian entity. In 
other words, we are taking a look at this to see if that really 
belongs in there. And then we are taking a look at what is in 
the other two standards also.
    So hopefully, by the time we are done, we will have a 
process that will be shorter, clearer and will essentially be 
easier to address for the petitioners.
    The Chairman. Federal recognition decisions are supposed to 
be made using ``reasonable likelihood standard.'' When you say 
that the Department has ``uniform and rigorous review,'' aren't 
you heightening the standard, when the regulations clearly 
state that the conclusive proof is not required?
    Mr. Skibine. No, the conclusive proof is not required. And 
I agree with that. We are in fact taking a look at that burden 
of proof to see whether in fact that should be changed. And 
that is one of the things we are taking a look at.
    But even under the existing standard, conclusive proof is 
not required. The question is, it is not technically a legal 
standard that operates in other areas of the law. So should we 
replace that with a more certain standard that is more 
understandable for everyone, like preponderance of the 
evidence, which is not the normal standard.
    The Chairman. Yes. Well, as you can tell, we are trying to 
zero in on how we can move some of these decisions along. You 
point out that others with other knowledge and skills maybe 
need to be part of the process. Do you think, and I am trying 
to get at this, but do you think the process is so broken for 
tribes in seeking recognition that it is time for Congress and 
this Committee to step into the role of recognizing tribes?
    Mr. Skibine. Well, this Committee, first of all, you do 
have the authority to recognize tribes. That is why this bill 
is before you. On the other more substantive policy issue, I 
think that would be a question for our political leadership to 
respond to.
    The Chairman. Thank you. I thank you so much for your 
answers here, and I am looking forward to working together with 
you in trying to expedite the process. And as you can tell, I 
am trying to find out the best we can as to maybe how we can 
improve it. I am sure you are, too. I certainly want to keep 
trying on this, and look forward to working with you on trying 
to bring this process about.
    Thank you very much for your statements.
    I would like to invite the second panel to the witness 
table. Today, we have John Sinclair, President of the Little 
Shell Tribe; Kim Gottschalk, from the Native American Rights 
Fund; and Bonita Cleveland, the Chairperson of the Quileute 
Nation. I want to say welcome to our witnesses. Thank you for 
being here, and we look forward to your testimony.
    Mr. Sinclair, will you please proceed with your statement?

STATEMENT OF HON. JOHN SINCLAIR, PRESIDENT, LITTLE SHELL TRIBE 
                 OF CHIPPEWA INDIANS OF MONTANA

    Mr. Sinclair. Good afternoon, I want to thank you and 
Senator Barrasso for bringing this legislation, as well as the 
rest of the Committee. I would also like to express my deep 
gratitude to Senator Tester for bringing this bill, and to 
Senator Baucus for co-sponsoring S. 546.
    On behalf of the Little Shell Tribe of Montana, I thank you 
for the opportunity to testify in support of S. 546, 
legislation to confirm a government-to-government relationship 
between the Little Shell Chippewa Indians of Montana and the 
United States. My name is John Sinclair, and I am honored to 
serve the Little Shell Tribe, as my father and my grandfather 
have done before me.
    Congress began work on recognizing our tribe in 1908, more 
than 100 years ago. In that year, and again in later years, 
Congress appropriated money to buy land for the tribe. A 
primary purpose for this land base was to allow the tribe to 
organize as a recognized tribe.
    Of particular importance after Congress passed the Indian 
Reorganization Act in 1934, Congress again appropriated money 
to purchase land for the Little Shell Tribe. Despite Congress' 
intent that Little Shell organize on that land, it never 
happened because the money was spent to purchase land for the 
already-recognized tribes. We are asking that Congress finally 
complete the process it started in 1908 by enacting S. 546.
    There are two other tribes, the Little River Band and the 
Little Traverse band of Ottawa Indians, that have been 
recognized by Federalization on the basis that the BIA began, 
but never finished, organizing them under the IRA. We deserve 
and are overdue for the same kind of recognition legislation.
    However, there are even more reasons for Congress to enact 
special legislation for Little Shell. In 1982, Congress enacted 
the Pembina Judgment Act, which allocated funds now worth $3 
million which were conditioned on our Federal recognition. Even 
the BIA has said that this unique situation could justify 
special recognition legislation for Little Shell. In the words 
of the final determination, referring to both the previous 
efforts to organize under the IRA and the distribution of the 
judgment funds, the Bureau said, ``Congress could direct that 
they be used to purchase land for the group, as contemplated in 
the 1930s, should Congress choose to recognize the Little Shell 
petitioner.''
    These circumstances mean that Congress can and should enact 
S. 546. This is our last chance. Little Shell and Congress have 
been having this conversation now for more than 100 years. For 
too long, we have been refugees in Montana, waiting for the 
United States to fulfill its promises.
    Our neighbors, both Indian and non-Indian alike, all have 
recognized that we are a tribe. All seven recognized tribes in 
Montana support us. The two tribes in neighboring Wyoming, the 
Wind River and Northern Arapaho, support us. The State of 
Montana supports us. Our local counties support us. They know 
us better than the staff at the Bureau's Office of Federal 
Acknowledgment. We urge Congress to fulfill its promises and 
join those who know us best by enacting S. 546.
    Thank you.
    [The prepared statement of Mr. Sinclair follows:]

Prepared Statement of Hon. John Sinclair, President, Little Shell Tribe 
                     of Chippewa Indians of Montana

    Chairman Akaka, Vice Chairman Barrasso, our friends Senator Tester 
and Senator Baucus, and honorable members of this Committee on Indian 
Affairs, on behalf of the Little Shell Tribe of Montana, I thank you 
for the opportunity to testify in support of legislation that would 
confirm the federal relationship between the Little Shell Tribe of 
Chippewa Indians of Montana and the United States.
    My name is John Sinclair and I have the honor of serving as 
President of the Little Shell Tribe. Before me, my father and my 
grandfather also served our Tribe working to realize our people's 
federal recognition. The Little Shell Tribe is organized under our 1977 
Constitution. Our government consists of an elected Tribal Council (two 
year term) and Executive Board (four year term) and our tribal 
enrollment encompasses about 4,500 members. As a landless tribe my 
people are largely settled on the fringes of rural towns in Montana on 
the Front Range and along the Highline, as well as in the cities of 
Great Falls and Helena.
    The Little Shell Restoration Act of 2011 (S. 546) cosponsored by 
Senator Tester and Senator Baucus would finally end our long struggle 
for federal recognition, for which so many of my people have fought 
tirelessly over the past century. The Restoration Act is consistent 
with Congress' and the Department of the Interior's historical 
commitments to acknowledge our people and establish a land base for us. 
The need for congressional action has become absolutely necessary since 
the Department abandoned its July 24, 2000 proposed positive finding 
that the Tribe had met all the seven mandatory criteria of the Part 83 
regulations and should be recognized. On October 27, 2009 the 
Department reversed this decision and found that the Tribe had not met 
the burden of proving all the regulatory criteria of recognition. I am 
here before you today, as I have been a number of times in the past, to 
urge that you exercise your plenary authority over Indian tribes and 
recognize the United States' political relationship with the Little 
Shell Tribe of Chippewa Indians. We are Indians, we are a Tribe, and 
all we desire is the same recognition that you offer our sister tribes.
Little Shell of Chippewa Indians Restoration Act of 2011, S. 546
    The proposed Little Shell Tribe of Chippewa Indians Restoration Act 
of 2011 would afford my people the federal recognition that has long 
been promised to us. S. 546 provides that we will be a duly recognized 
tribe just like our sister tribes in Montana and across the United 
States. The Act instructs the Secretary of the Interior to acquire 200 
acres in trust so that we can finally have a tribal land base. It also 
explicitly states that we are eligible to acquire additional lands 
under section 5 of the Indian Reorganization Act, an important 
provision given the 2009 Supreme Court decision in Carcieri v. Salazar. 
The Act would also right the wrong that was inflicted against us by the 
Department's flawed decision not to recognize our Tribe based on the 
imperfect process established under the Part 83 regulations.

Previous Congressional Efforts to Confirm the Federal Status of The 
        Little Shell Tribe
    Congress has been aware of the Little Shell Tribe's dilemma for 
years and several times has voiced its desire to legislate a solution 
for us. In 1934 Congress enacted the Indian Reorganization Act (IRA), 
which provided a mechanism for groups of Indians like ours to organize 
and apply for land. In December 1935, the Commissioner of Indian 
Affairs took steps to organize our people under the IRA. The 
Commissioner proposed a form to enroll our people, stating:

         It is very important that the enrollment of homeless Indians 
        in the State of Montana be instituted immediately, and it is 
        proposed to use this form in the determination of Indians who 
        are entitled to the benefits of the Indian Reorganization Act.

           BIA Letter, December 23, 1935. This effort resulted in the 
        Roe Cloud Roll, named after Dr. Henry Roe Cloud, an Interior 
        official who played a large part in the project. Once the roll 
        was complete, the Field Administrator clearly stated that the 
        purpose of the roll was to settle our people and bring them 
        under active federal supervision:

         The landless Indians whom we are proposing to enroll and 
        settle on newly purchased land belong to this same stock, and 
        their history in recent years is but a continuation of the 
        history of wandering and starvation which formerly the Rocky 
        Boy's band had endured.

         Out of the land purchase funds authorized by the Indian 
        Reorganization Act, we are now purchasing about 34,000 acres 
        for the settlement of these Indians and also to provide 
        irrigated hay land for the Indians now enrolled on Rocky Boy's 
        Reservation. The new land, if devoted wholly to that purpose, 
        would take care of only a fraction of the homeless Indians, but 
        it is our intention to continue this program through the years 
        until something like adequate subsistence is provided for those 
        who cannot provide for themselves. The first step in the 
        programs is to recognize those Indians of the group who may 
        rightfully make claim of being one-half degree, which is the 
        occasion for presenting the attached applications. The fact of 
        these people being Indian and being entitled to the benefits 
        intended by Congress has not been questioned.

           Roe Cloud Roll applications, 1937 (emphasis added). Even 
        though the appropriation of funds for the Little Shell people 
        was clear acknowledgment of our status as a tribe, one 
        desperately in need of the federal protection extended to other 
        tribes, the Department of the Interior was never able to 
        fulfill this promise. The limited resources available to 
        acquire land were expended for tribes already recognized.

    In 1940, Senator James Murray formally requested that the 
Department fulfill the federal government's promise to acquire land for 
the Little Shell Band. Assistant Commissioner Zimmerman responded that 
his office was ``keenly aware of the pressing need of the landless 
Chippewa Cree Indians of Montana. The problem thus far has been dealt 
with only in a very small way. I sincerely hope that additional funds 
will be provided for future purchases in order that the larger problem 
remaining can be dealt with in a more adequate manner.'' Unfortunately, 
despite the efforts of Congress the funds were never appropriated and 
the problem was never dealt with in anything resembling an adequate 
manner.

Final Determination Against Recognition of The Little Shell Tribe
    On October 27, 2009, over thirty years after our initial petition, 
the Office of Federal Acknowledgment issued their final determination 
against acknowledgment of my people. Only an appeal to the Interior 
Board of Indian Appeals has prevented that decision from becoming 
effective. It could be years before the IBIA rules. Despite the fact 
that the Proposed Finding was in favor of recognition, that no 
substantive negative comments were received, and that we submitted 
thousands of additional pages of evidence to support our position, the 
OFA chose to reverse their decision. Their previous decision had taken 
into account historical circumstances as required by the regulations, 
and concluded that certain departures from precedent were justified. 
The Tribe was encouraged to submit additional information, not as a 
condition of being recognized, but merely to narrow what were viewed as 
the necessary departures from precedent. Imagine our surprise then, 
when OFA totally reversed its judgment and chose to strictly construe 
the requirements of the regulations so as to conclude that we failed 
criteria (a) recognition by outsiders during the period 1900-1935); (b) 
community from historical time to the present; and (c) the exercise of 
political authority from historic times to the present. Significantly, 
the finding concluded that our additional work had shown that 89 
percent of our people trace from a historic tribe, thus meeting 
criterion (e) without any need to depart at all from precedent. In sum, 
we were told that we met the requirements, we worked in good faith to 
help the department, and then we were hit with a total reversal of 
policy. Is it any wonder that the Tribe has lost faith in the 
acknowledgment system?
    My people have spent the past thirty years fighting for our 
recognition through the lengthy and burdensome administrative 
recognition process imposed by the Department under the Part 83 
regulations. In the course of this pursuit we have been truly lucky to 
have the assistance of the Native American Rights Fund (NARF), a legal 
aid organization devoted to the protection of indigenous people's 
rights in the United States, pro bono. They agreed to work on our 
petition because, as an organization familiar with tribes and tribal 
rights, they had faith in Little Shell as an Indian tribe. NARF has 
expended over $1 million to retain historians, genealogists, and other 
expert consultants to provide the very technical and arcane information 
that the Office of Federal Acknowledgment often requires.
    The lengthy process also inflicts an immeasurable human cost, 
wherein the acknowledgment torch is passed from one generation to 
another. The task of securing professionals to assist us with our 
petition and the collection of documents from repositories across the 
United States, Canada and England was itself demanding, but it paled in 
comparison to the demands of providing for my people without the 
protection of federal recognition, without a land base. It is 
heartbreaking that now after nearly 30 years in the administrative 
process, in the politically charged atmosphere of Washington, D.C., the 
Department has reversed its proposed favorable finding and decided not 
confer federal acknowledgment. Now, we must look to Congress once again 
to enact legislation to confirm federal recognition of the Little Shell 
Band, recognition that Congress has presumed for generations was 
appropriate for Little Shell.

Congressional Action Is Absolutely Necessary
    Congress has plenary power with regard to tribes in the United 
States. It is Congress then who has the final power and authority to 
recognize or terminate a relationship with a tribe, not the Department. 
Congress has not relinquished that authority to the Department of the 
Interior. The administrative regulations were adopted by the Department 
without benefit of legislation. As a result, Congress can and should 
act for the Little Shell since the administrative process cannot and 
has not worked for us. That is what the Little Shell people ask this 
body to do now through S. 546.
    Congress has enacted similar legislation for other tribes which, 
like Little Shell, have a history of congressional efforts to 
reorganize the tribe. Congress enacted such legislation for tribes such 
as the Little Traverse Bay Band of Odawa Indians and the Little River 
Band-tribes, like us, whom the Department attempted to recognize in the 
1930s but because of the lack of appropriations, recognition was never 
completed. The Department of the Interior noted this unique history, 
even in its Final Determination against federal acknowledgment:

         Congress has plenary power over Indian affairs and, 
        considering two historical factors, could recognize this 
        petitioner as an Indian Tribe. First, the Department initiated 
        action under the Indian Reorganization Act of 1934 that 
        affected the ancestors of a significant majority of the 
        petitioner's members. And second, Congress passed the Act of 
        December 31, 1982 (96 Stat. 2022), conditionally allocating 
        certain trust funds to ``the Little Shell Tribe of Chippewa 
        Indians of Montana'' petitioner.

    Notice of Final Determination, 74 Fed. Reg. 56861 (Nov. 3, 2009). 
The Department went on to note that more than $3 million remains in 
trust under the allocation act and offered that ``Congress could direct 
that they be used to purchase land for the group, as contemplated in 
the 1930s, should Congress choose to recognize the Little Shell 
petitioner.'' Id.
    The existence of this judgment fund is another circumstance unique 
to Little Shell. As the Department noted, Congress allocated a portion 
of the settlement to the Little Shell Tribe. Some of these funds were 
distributed to our tribal members but roughly $3 million is still held 
in trust by the Secretary of the Interior pending possible federal 
recognition of our Tribe. The existence of this fund means that money 
is finally appropriated and available to purchase land for the Little 
Shell and the only thing that is needed is Congressional direction and 
permission to do so.
    It is also important to note that the proposed Congressional action 
to confirm federal recognition of the Little Shell Tribe enjoys broad 
support in Montana. My people enjoy the support of all the federally 
recognized tribes in Montana. I'm proud to state that not one negative 
substantive comment was received after the Department issued their 
initial proposed finding in favor of recognition of my Tribe. The 
support of the other tribes in Montana is indicative of the merits of 
our recognition. Who is in a better position to perceive who is a 
``real tribe'' in the State of Montana, the other tribes of Montana or 
a career bureaucrat sitting in Washington, D.C.? Our sister tribes in 
Montana have intimate knowledge or our culture and history that spans 
the many years that we have resided in the same territory as them.
    We are also grateful to have the support of the State of Montana as 
well. Governor Schweitzer and the Montana State Legislature, by Joint 
Resolution, have expressed their support for our federal recognition. 
Hill, Cascade, Glacier and Blaine County as well as the City of Great 
Falls, the local governments most directly impacted by our recognition, 
have expressed their support of legislation to recognize the Little 
Shell Tribe. In fact, the State of Montana recently provided us with 
land from which we can provide essential governmental services--
something the federal government had promised to do throughout the 
twentieth century but has yet to accomplish.
    Our neighbors, both Indian and non-Indian alike, have all 
recognized that we are a ``tribe.'' Many of them have petitioned 
Washington in support of our cause over the last century. They still 
stand with us today. Congressional recognition of our Tribe would not 
stir local animosity nor would it provoke strong sentiments against our 
cause. It would provide a sense of relief and closure for my people and 
for our friends in Montana who have tirelessly supported our cause and 
watched our plight over the past century.

Conclusion
    Distinguished Senators, it is to you that I make my people's final 
appeal. For too long we have been refugees without a homeland in our 
own aboriginal territory, unable to provide proper schools for our 
children or healthcare for our elders. Throughout this ordeal I have 
watched as tribal members have passed away without realizing our dream 
of recognition and I have seen new tribal members born without the 
protections that federal recognition entails. All I ask is that this 
body make good on the promises that have been made to the Little Shell 
Tribe over the past century and acknowledge your recognition of my 
people.
    I thank you for your time and for your consideration of S. 546. I 
am more than happy to answer any questions from the Committee.

    The Chairman. Thank you very much, Mr. Sinclair.
    Mr. Gottschalk, will you please proceed with your 
testimony?

   STATEMENT OF K. JEROME GOTTSCHALK, STAFF ATTORNEY, NATIVE 
                      AMERICAN RIGHTS FUND

    Mr. Gottschalk. Chairman Akaka and Senator Cantwell, thank 
you for the opportunity to speak today in support of S. 546. My 
name is Kim Gottschalk, I am an attorney at the Native American 
Rights Fund. We have been honored to represent the Little Shell 
Tribe in its administrative quest for recognition for more than 
20 years.
    I want to focus on just two very basic points in my talk 
today. One, that the summary of final determination against 
recognition of the Little Shell Tribe in no way means that they 
are not a tribe that should be recognized. And I think Mr. 
Skibine testified today they do not oppose it. I am somewhat 
puzzled as to why they are not supporting the bill. But that is 
point number one.
    Point number two, I do not think that this is even an 
instance of bypassing the administrative procedure in any way. 
I think this has been contemplated by them from the very 
beginning because they know that the regulations do not fit the 
situation.
    The Federal acknowledgment regulations, as they exist, 
propose a one size fits all, cookie cutter approach to Federal 
recognition that does not fit the historical reality of the 
Little Shell Tribe, who through a long part of their history 
were a tribe that hunted buffalo; they were migratory for large 
parts of the year. And when the buffalo played out, they were 
subject to immense economic, social and geographic disruption.
    Well into the 20th century, Little Shell members lived on 
the absolute fringes of society in abject poverty. They were 
referred to as trash heap Indians, breeds, half-breeds, and 
other similar non-complimentary terms. When faced with this 
historical reality and the paper-driven approach adopted by the 
regulations, you can see why there is not a good fit. This 
situation is not calculated for the Little Shell people to 
produce a paper trail or for outside observers to penetrate 
into their social situation.
    When faced with this situation, Assistant Secretary Gover 
said, okay, what do we do with this? The evidence clearly shows 
that they are an Indian tribe. We have to interpret these 
regulations with some flexibility and common sense. An example 
would be the requirement that you be recognized as an Indian 
entity by outsiders. The fact that they were recognized as 
individual Indians isn't good enough. They expect the dominant 
society to have penetrated to the underlying social and 
political reality of the tribe, to recognize an entity.
    The same is true of showing community throughout history, 
political authority throughout history. Secretary Gover made 
the determination that you take the evidence that clearly 
establishes such patterns of community and political authority 
in certain time periods, and you presume, make a reasonable 
presumption, a reasonable likelihood that those persisted 
during other time periods. That is the reason for the positive 
proposed finding.
    I would like to point out that at the time this was going 
on, the Director of Federal Acknowledgment, Mr. Lee Fleming, 
wrote a memo to his superior in connection with Little Shell. 
He opposed coming out with a favorable finding, and I would 
just like to quote two short sentences: ``Another alternative 
would be to recommend legislation to acknowledge this 
petitioner. This recommendation would be based on a finding 
that because of the unique and complicated nature of its 
history, this petitioner is outside the scope envisioned by the 
regulations, but nonetheless merits tribal status.''
    This is a natural follow-on from that conclusion. They had 
a choice to either be flexible and adopt a common sense 
approach to the regulations or adopt a mechanistic approach and 
realize that they were confessing that the regulations didn't 
fit the situation. That is the situation we are in now. I want 
to make very clear that we did a lot of work on this after the 
proposed finding. We satisfied the Office of Federal 
Acknowledgment that 89 percent of Little Shell members trace to 
the historic Band of Chippewa Indians. This is well above the 
80 percent guideline accepted by the Department for this 
criterion. So there is no doubt you are dealing with Indians 
and you are dealing with an Indian tribe.
    I feel I must address a couple of matters very briefly that 
Mr. Skibine mentioned. One of which is, he said they put out 
for comment after the proposed finding for comments on the 
departures from precedent, and then they changed their mind on 
the departures from precedent. The implication might be that 
there were some comments received that caused that change. 
There were no such comments.
    [The prepared statement of Mr. Gottschalk follows:]

  Prepared Statement of K. Jerome Gottschalk, Staff Attorney, Native 
                          American Rights Fund
























    The Chairman. Thank you very much, Mr. Gottschalk, for your 
testimony.
    Ms. Cleveland, will you please proceed with your testimony?

   STATEMENT OF HON. BONITA CLEVELAND, CHAIR, QUILEUTE TRIBE

    Ms. Cleveland. Thank you, Mr. Chairman.
    Mr. Chairman and other members of the Committee, on behalf 
of the Quileute people, thank you for allowing us to speak with 
you today about how our children and elders could be killed in 
a tsunami unless we move our village to higher ground.
    Wa-ta-lich-ta asoos ta. Thank you, thank you, thank you 
from the bottom of our hearts. With me today, Mr. Chairman, I 
have our tribal council representatives, Mrs. DeAnna Hobson, 
Mrs. Carol Hatch, and our Executive director, Mr. Bill Peach, 
our legal advisor, Harold Bailey, and Jackie Jacobs.
    Although the Japanese tsunami is a very recent reminder of 
the destruction that happens after an earthquake in the ocean, 
our people have been living for decades among decades with the 
fear of a tsunami and our flooding. Our tribal council has 
prepared today to share a video with you and your Committee. If 
we could do that.
    [Video shown.]
    Ms. Cleveland. So as you have just seen from the video, our 
community knows that our school children, our elders will not 
get out in time. Our children are really worried, and I want to 
share with you a piece of artwork from one of our students that 
shows their fear.
    Because our village is located on only one square mile, Mr. 
Chairman, and we are between the Pacific Ocean and the Olympic 
National Park, we have nowhere else to go. There is only one 
road in and one road out of La Push. This road is usually under 
three to four feet of water when flooded. For decades my uncles 
have negotiated with the Olympic National Park to try and bring 
resolution to the dispute over the boundary of our reservation. 
Finally, last year, we were able to reach an agreement with the 
Park to settle this dispute. We would like to express our 
deepest appreciation to the Park Superintendent, Karen Gustin, 
for her hard work and her understanding of the dangers our 
tribe faces.
    Senator Cantwell's legislation would allow the Quileute 
Tribe a permanent way out of the danger zone. For the many 
visitors to the Olympic National Park, including the Twilight 
fans, the bill will ensure permanent access to our beautiful 
beaches through the trailhead owned by the tribe. Senator 
Cantwell's bill will also return our people a cultural and 
sacred site that we know as Thunder Field. Our people have 
utilized Thunder Field for many, many cultural activities, 
gathering our berries and placing our canoes to fish.
    An organization that understands our way of life is the 
National Congress of American Indians. I would like to express 
my appreciation for the NCAI to be here today with us. Mr. 
Chairman, I would like to submit two NCAI resolutions passed in 
2008 and 2011.
    We have enjoyed a very close working relationship with the 
City of Forks, and we have consulted with the town of Forks on 
this bill. Mr. Chairman, I would also like to submit for the 
record a letter from Forks supporting this bill also.
    The time has come once again to make a difference for our 
people who have always had such close cultural ties with the 
land base since the beginning of time. Without this bill, Mr. 
Chairman, the tsunami could be very dangerous to our people. 
Mr. Chairman, I have been so honored to represent my people 
today before you. I hope the words and the video show our 
urgent and desperate need. Wa-ta-lich-ta asoos ta. Thank you.
    [The prepared statement of Ms. Cleveland follows:]

   Prepared Statement of Hon. Bonita Cleveland, Chair, Quileute Tribe














































    The Chairman. Thank you very much for your testimony, Ms. 
Cleveland.
    I know that it has been a long and difficult struggle for 
the Little Shell Tribe to try to obtain Federal acknowledgment. 
Mr. Sinclair, can you discuss the toll that this process has 
taken on the Little Shell Tribe?
    Mr. Sinclair. The toll is that we have not been able to 
supply the services that would help us to overcome the racist 
attitudes that have held us back for so long. One of the 
reasons that we don't fit into this cubby hole that the OFA 
process tried to put us in is because we have not been able to 
use our resources we have to educate our children so that we 
can do something like that, educate our children, keep our 
people healthy. It is just something that without the support 
of groups like NARF and Patton Boggs, we wouldn't be able to be 
here today. It is sad that we have to depend on charity from 
others, but that is just kind of the lot that we have been led 
into.
    The Chairman. Mr. Gottschalk, your testimony highlights 
several flaws and inconsistencies within the Federal 
acknowledgment process. What recommendations do you have to 
improve this process? And do you think the process can be 
improved, or does Congress need to act?
    Mr. Gottschalk. I believe Congress probably will need to 
act. There are many things that need to be improved. You 
yourself raised the issue of transparency with Mr. Skibine. I 
would like to point out that after our last submissions were 
made, the Bureau sent a researcher out for more than three 
weeks to do additional on the ground research. There was no 
provision in the regulations that allowed us to have that 
information and comment on it prior to final decision.
    To add insult to injury, when we asked for the information, 
we were required to pay $5,000 for copying costs. We have 
appealed that decision, but it hasn't been decided. So we had 
to put up that money to get the documents that related to our 
very petition for recognition, plus no opportunity to comment 
on them. That to me is not transparency.
    One of the people that they interviewed was an expert on 
Metis people, and Little Shell in particular. We used him in 
our IBIA appeal to write a document on our behalf. And his 
testimony was totally positive. We saw no reflection of it in 
the outcome, in the final determination. That does not instill 
confidence in the process. I think there has to be recognition 
of the fact that the requirements are extraordinarily onerous.
    I think criteria A, which says that outside observers must 
consistently recognize the group as an Indian entity, cannot 
possibly be a requirement. It could be possible evidence of the 
existence of community or political authority. It can't 
possibly be an independent requirement, because that would mean 
if a tribe met all the substantive requirements to be a tribe, 
they were in fact a tribe, but outside observers didn't notice 
that, then they are not a tribe.
    Can that really be the state of our law today? And yet that 
is one of the seven mandatory criteria in the Federal 
acknowledgment regulations. I think it needs to be simplified. 
It needs to have more transparency and it needs to involve 
tribes more. There has to be an opportunity perhaps for give 
and take, perhaps for direct examination, cross examination of 
the experts in OFA. Those are my thoughts for right now.
    The Chairman. Thank you for your answers.
    Ms. Cleveland, I want to say thank you so much for showing 
us the video, to show us where the tribe's reservation is 
located. It was a very powerful showing of how precarious your 
situation is.
    Ms. Cleveland. Yes.
    The Chairman. Can you tell us what type of warning the 
tribe would get in the event of a tsunami and how the 
evacuation plan would be carried out, with only one road, as 
you mentioned, in and out of the reservation?
    Ms. Cleveland. Yes, Mr. Chairman. We have an evacuation 
tsunami warning that goes off for our village that can be 
heard, sometimes can be heard and sometimes cannot be heard. So 
we have had several evacuation warnings and it has taken our 
tribal members approximately six to seven minutes to get out of 
the lower village. And that is loading the children in the 
buses. These are practice warnings, may I remind you. And we 
won't get out in time from the lower village.
    The Chairman. And as you mentioned, there is just one road 
in and out?
    Ms. Cleveland. Yes. We have one road into our village and 
one road out. If we were hit by a tsunami and that road was 
destroyed, we would have no way out. We would be trapped.
    The Chairman. Thank you very much for your responses.
    Senator Cantwell?
    Senator Cantwell. Thank you, Mr. Chairman, and thank you 
for asking these questions. I think you do see by the video the 
precarious situation that the Quileute are in. Thank you, 
Chairperson Cleveland, for your testimony and bringing the 
spirit of the Quileute people to this hearing room today.
    I wanted to ask, you have done a good job of showing the 
impact of the Pacific, and we probably didn't emphasize enough 
for people about this most recent warning system was in Japan. 
But obviously something that would happen on the Cascadia 
Subduction Zone, right off our coast would be an immediate 
impact. That is why you are emphasizing the time to evacuate 
would be very minimal.
    But can we also talk about the Quileute River, and its 
impact? Because I know that it is also part of your boundary 
area. And with the heavy rains and the fact that you are right 
next to a temperate rain forest, you have a lot of issues with 
flooding from the river. Could you comment on that, channels 
for the river and how that impacts the reservation and how 
moving to a bluff would alleviate that issue?
    Ms. Cleveland. Yes. We are impacted by the river, our lower 
village, we are on one square mile. And our lower village is 
surrounded on one side by the river, and then the other side is 
surrounded by the Pacific Ocean. Behind us, we are surrounded 
by the Olympic National Park. So during the winter months, our 
river is overflowing into people's homes and we are having to 
move the people out of their homes, they are flooded. Their 
homes are flooded, every winter, winter after winter after 
winter this is occurring with our tribal people. And it really 
impacts our people and it creates a hardship for them because 
they have nowhere to go. They have to move in with relatives, 
to higher ground somewhere else until we can get their houses 
cleaned up again, Mr. Chairman.
    Senator Cantwell. So this land trade with the Department of 
the Interior will allow you to relocate to that higher ground. 
But it also preserves or actually, I would say probably even 
enhances the continued access of a larger community to the 
magical places of La Push and Rialto and everything else for 
the region, is that correct?
    Ms. Cleveland. That is correct, yes it is.
    Senator Cantwell. So could you comment a little bit about 
the importance of that and continuing to have access to those 
places that you get to enjoy every day?
    Ms. Cleveland. I guess number one priority would be giving 
us access to higher ground and it would allow people safety and 
protection and being able to live at ease. And it would allow 
people to enjoy the beautiful beaches that we are surround by 
and able to continue our fishing on the rivers, as we have done 
for centuries.
    Senator Cantwell. Thank you. Again, thank you, and could 
you just emphasize, you mentioned the Twilight tribe. Could you 
expound on that for a minute? Some people may have one 
impression, so maybe you could comment.
    Ms. Cleveland. Our tribe is known for the movie, Twilight. 
We have a lot of tourism that comes to our community because it 
is a famous movie that is out there, Twilight. They come and 
tour our village to see the actors that were in the Twilight 
movie. So we have many, many visitors that come to our village 
to stay. This would protect all the tourists also.
    Senator Cantwell. Thank you. Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Cantwell.
    I want to say thank you to this panel for coming here and 
testifying on these bills. As you know, we are trying as a 
Committee to try to move the decisions on these as we can. 
Thank you for helping us with the information you have given 
us, and also to work on a process of speeding up some of the 
decision making that we face now.
    So thank you very much for your testimony.
    I would like to invite the third panel to the witness 
table. For the third panel, we have Robert Tippeconnie, from 
the National Congress of American Indians, and Cheryl Causley, 
Chairperson of the National American Indian Housing Council.
    Thank you very much for being here at this hearing. We look 
forward to your testimony.
    Mr. Tippeconnie, please proceed with your statement.

  STATEMENT OF ROBERT TIPPECONNIE, SOUTHERN PLAINS AREA VICE 
                PRESIDENT, NATIONAL CONGRESS OF 
                        AMERICAN INDIANS

    Mr. Tippeconnie. Good afternoon, Chairman Akaka. My name is 
Robert Tippeconnie, from the Comanche Nation. I am also the 
Southern Plains Area Vice President of the National Congress of 
American Indians.
    The National Congress of American Indians strongly supports 
S. 703, the HEARTH Act, because it promotes tribal self-
determination and the management of tribal lands, and would 
allow tribes to lease their own lands without the delay and the 
bureaucracy that happens within the Bureau of Indian Affairs.
    The legislation is also optional. So each tribe may elect 
to go under this Act or not. Many tribes desire to manage their 
own lands and promote economic development and are in the best 
position to do that, to decide for themselves whether the Act 
suits their needs.
    We attached the National Congress of American Indians 
resolution, PSP 09-0116, in support of the legislation. The 
provisions of the legislation are straightforward. A tribe 
would be able to lease its own land without approval of the 
Secretary of the Interior if the lease is executed under tribal 
government regulations that are approved by the Secretary of 
the Interior.
    Tribal leasing regulations must be consistent with the 
Secretary's leasing regulations and must provide for an 
environmental review process. NCAI supports the legislation and 
offers one suggestion for clarification. The waiver of Federal 
liability could include situations unrelated to the lease. For 
example, a Federal surveying error could result in a trespass 
of a third party. We therefore believe the intention here is to 
exempt the U.S. from liability for the terms of the lease, 
because the Secretary of Interior would have no role in 
reviewing those terms.
    We would urge, therefore, the Committee to consider 
narrowing the Federal waiver of liability appropriately. 
National Congress of American Indians supports this legislation 
and in the future, we would encourage the Congress to continue 
to develop more legislation that will support tribal self-
determination and in the management of tribal lands.
    On S. 636, the bill to provide the Quileute Tribe with 
tsunami and flood protection, this hearing also includes the 
consideration of this bill. We support the legislation and we 
attach a recent resolution from the National Congress of 
American Indians. The Quileute Tribe and their members live in 
a very exposed area, as we have heard, on the northwest coast, 
and have a great need for an immediate solution following the 
tsunami that caused catastrophic damage in Japan.
    The geographical situation of the Quileute creates a 
similar risk for disastrous events. And we urge the Congress to 
act now, while the need for action is fresh in our minds.
    NCAI views passage of S. 636 as another step in fulfilling 
the Federal trust responsibility and inclusion of Native people 
in national emergency preparedness that all citizens should 
have in this U.S. Country. Thank you for your favorable support 
for this timely legislation.
    In conclusion, the primary purpose of both bills is to 
empower Indian tribes to control their own lands. The National 
Congress of American Indians supports this purpose very, very 
strongly. We thank you for your diligent efforts on behalf of 
Indian Country and on these and many other issues.
    [The prepared statement of Mr. Tippeconnie follows:]

  Prepared Statement of Robert Tippeconnie, Southern Plains Area Vice 
            President, National Congress of American Indians

    On behalf of the National Congress of American Indians, thank you 
for the opportunity to provide our views on this important legislation. 
NCAI supports the legislation, and we appreciate today's hearing 
because it will draw more attention to the bill. NCAI particularly 
appreciates the Committee's attention to the longstanding problems of 
land management and economic development on Indian lands.
    The bill has been titled as an Indian housing bill, but it is 
broader legislation. It is essentially a set of amendments that would 
expand the Navajo Leasing Act of 2000 to all federally recognized 
tribes. NCAI strongly supports the bill because it promotes tribal 
self-determination in the management of tribal lands, and would allow 
tribes to lease their own lands without the delay and bureaucracy of 
approval within the Bureau of Indian Affairs. The legislation is also 
optional; each tribe would decide for itself whether or not to take 
advantage of the Act. Many tribes desire to manage their own lands and 
promote economic development, and are in the best position to decide 
for themselves whether this Act suits their needs. We attach NCAI 
Resolution PSP-09-016 in support of the legislation.
    The provisions of the Navajo Leasing Act, 25 U.S.C. 415(e), and 
this legislation are straightforward:

        1) Leases on tribal land do not require approval if they are 
        executed under tribal government regulations approved by the 
        Secretary of Interior;

        2) Tribal leasing regulations must be consistent with the 
        Secretary's leasing regulations, and must provide for an 
        environmental review process;

        3) The terms of tribal leases can be expanded considerably--up 
        to 25 years with 2 renewals for business or agricultural 
        leases, and up to 75 years for public, religious, educational, 
        recreational or residential leases;

        4) Direct payment to the tribe is permitted, but the tribe must 
        provide documentation of lease payments to the Secretary;

        5) The United States is not liable for losses sustained by any 
        party to a lease executed pursuant to tribal regulations;

        6) Interested parties may petition the Secretary to remedy any 
        violations of the tribal leasing regulations.

    NCAI supports the legislation and offers one suggestion for 
clarification. Under the trust responsibility section of the 
legislation, it states that the ``The United States shall not be liable 
for losses sustained by any party to a lease executed pursuant to 
tribal regulations under paragraph (1).'' We do not believe that such a 
broad waiver of federal liability was intended, because it could 
include situations unrelated to the lease. For example, a surveying 
error by the Bureau of Land Management could result in a trespass by a 
third party. We believe the intention here is to exempt the U.S. from 
liability for the terms of the lease, because the Secretary would have 
no role in reviewing those terms. We would urge the Committee to 
consider narrowing the federal waiver of liability appropriately.
    As a final note, NCAI supports this legislation because it is an 
extension of existing law that can be made rapidly available to 
encourage tribal self-determination in surface leasing and because it 
is voluntary to each tribe. In the future we would encourage Congress 
and the Administration to continue to develop more comprehensive 
legislation that will support tribal self-determination in the 
management of tribal lands.

S. 636, A Bill to Provide the Quileute Tribe with Tsunami and Flood 
        Protection
    This hearing also includes consideration of S. 636, legislation to 
assist the Quileute Tribe. NCAI also supports this legislation, and we 
attach our recent resolution. The citizens of the Quileute Tribe have 
lived on the northwest coast for thousands of years. Due to current 
boundary limitations the tribal population resides within a coastal 
flood plain which includes a community school, elder center, and tribal 
administrative buildings. Passage of S. 636 would enable the Tribe to 
move up to a safer location.
    Quileute citizens have expressed the need for an immediate 
resolution following the tsunami that caused catastrophic damage to 
Japan. The geographical situation of Quileute people creates similar 
risks for disastrous events, and we urge Congress to act now while the 
need for action is fresh in our minds.
    NCAI views passage of S. 636 as another step in fulfilling the 
federal trust responsibility and inclusion of native peoples in the 
national emergency preparedness that all citizens should have in this 
great country. Thank you for your favorable support for this timely 
legislation.

Conclusion
    The primary purpose of both bills is to empower tribes to control 
their own lands and NCAI supports this purpose very strongly. We thank 
you for your diligent efforts on behalf of Indian country on these and 
many other issues.

    ATTACHMENTS

    
    
    
    
    
    

    The Chairman. Thank you very much, Mr. Tippeconnie, for 
your testimony.
    Ms. Causley, will you please proceed with your testimony?

 STATEMENT OF CHERYL A. CAUSLEY, CHAIRWOMAN, NATIONAL AMERICAN 
                     INDIAN HOUSING COUNCIL

    Ms. Causley. Good afternoon, Chairman Akaka.
    I want to thank you for your leadership in introducing S. 
703. My name is Cheryl Causley, and I am the Chairwoman of the 
National American Indian Housing Council.
    NAIHC is the only national non-profit organization solely 
dedicated to advancing housing, physical infrastructure and 
economic development in American Indian, Alaska Native and 
native Hawaiian communities. I am an enrolled member and 
director of housing for the Bay Mills Tribe of Chippewa 
Indians.
    Mr. Chairman, you have my prepared statement, so let me 
just highlight a few things regarding S. 703, better known as 
the HEARTH Act, that we think are most important.
    On tribal trust lands, one of the biggest barriers to home 
ownership is the delay in getting a residential lease approved. 
We believe this is simply unacceptable and if passed, the 
HEARTH Act is a step in the right direction to address this 
problem.
    As I mentioned in my written testimony, the Indian Home 
Loan Guarantee Program, also known as Section 184, which is 
administered by HUD, guarantees loans for Native American 
individuals, families, tribes and tribal housing programs that 
are made to private sector lenders. The goal of this program is 
to address lack of mortgage lending in tribal communities.
    While this program has been very successful off-
reservation, I need to point out that due to lease delays, only 
18 percent of these loans have been provided on tribal trust 
land. In addition, when we have tribal members qualify for a 
conventional mortgage, delays in the leasing process often 
result in mortgages being closed with a much higher interest 
rate, sometimes adding thousands on the terms of the overall 
mortgages for our people.
    Because real property on Indian lands cannot be sold, there 
is no real estate market to speak of, and land leasing is often 
the only and the best way to generate capital for capital-
starved tribal economies. The bill, if enacted, gives tribes 
the freedom to choose whether to tribalize the surface leasing 
program or continue to go through the secretarial approval 
process. As it did last year, we expect the Congressional 
Budget Office to find this bill will be a zero cost proposal 
and in fact, may save money by transferring activities from the 
Federal to tribal governments.
    In my recent visits with many Congressional offices, I have 
received the same message: Congressional leaders believe in our 
mission and would love to help us, but with limited Federal 
resources, they seek solutions with little or no cost to the 
Federal Government. Members of this Committee, the HEARTH Act 
is exactly that, a solution to overcoming a barrier to home 
ownership in tribal communities with little or no cost to the 
Federal Government.
    Finally, NAIHC's official position, supported by 
resolutions from the Affiliated Tribes of the Northwest Indians 
and the United Southern and Eastern Tribes, is to support an 
efficient environmental review process. We feel that an overly 
burdensome process is an imposition on tribal authority and 
sovereignty, and will slow down rather than expedite the tribal 
surface leasing process. In the 111th Congress, NAIHC held a 
series of meetings and negotiations with officials of the BIA, 
the Interior's Solicitor's Office, HUD, leadership from the 
Senate Committee on Indian Affairs and Congressman Heinrich, 
the sponsor of the original HEARTH bill.
    The result was language on the environmental review portion 
that has been included in S. 703. It is this language that 
NAIHC fully supports.
    The goal of the HEARTH Act is to put tribes in the decision 
making role and expedite surface leasing so development can 
occur in tribal communities. These are the most important 
elements as we see, Mr. Chairman. I am happy to answer any 
questions that you may have.
    [The prepared statement of Ms. Causley follows:]

Prepared Statement of Cheryl A. Causley, Chairwoman, National American 
                         Indian Housing Council

Introduction
    Good morning Chairman Akaka, Vice Chairman Barrasso, and 
distinguished members of the Senate Committee on Indian Affairs. My 
name is Cheryl Causley and I am the Chairwoman of the National American 
Indian Housing Council (NAIHC), the only national Indian non-profit 
organization dedicated to advancing housing, physical infrastructure, 
and economic development in tribal communities in the United States. I 
am also the Executive Director of the Bay Mills Housing Authority and 
an enrolled member of the Bay Mills Indian Community.
    I want to thank Vice Chairman Barrasso and Chairman Akaka for their 
leadership in introducing S. 703, and for the opportunity to appear 
today and provide my views regarding the ``Helping Expedite and Advance 
Responsible Tribal Homeownership Act'' (S. 703), which was introduced 
in the Senate on March 31, 2011.
Native American Housing Assistance and Self-Determination Act
    Despite recent improvements in the delivery of housing assistance, 
Indian housing is still substandard when compared with housing 
available to other Americans. An estimated 200,000 housing units are 
needed immediately in Indian Country and approximately 90,000 Native 
families are homeless or under-housed. Overcrowding on tribal lands is 
almost 15 percent, and 11 percent of Indian homes lack complete 
plumbing and kitchen facilities.
    Before I present my views on S. 703, allow me to describe the 
framework in which Indian tribes provide housing and housing related 
community development through the Native American Housing Assistance 
and Self Determination Act (NAHASDA).
    NAHASDA is grounded in the solid foundation of Indian Self-
Determination. Enacted in 1996, NAHASDA was a result of the combined 
efforts of Indian tribes, tribal housing authorities and Federal 
policymakers who came together to lay out a new vision for building 
strong tribal communities by providing quality and affordable housing 
and related physical infrastructure.
    The objective of NAHASDA is to consolidate into a single block 
grant, once-disparate Federal housing funding programs, and to assign 
tribes the responsibility of program decision-making rather than the 
Department of Housing and Urban Development.
    While the delivery of housing has improved since 1996, many 
challenges remain, including working with Indian tribal trust lands 
which are held in common and cannot be collateralized to attract 
private capital. In most tribal areas, inadequate or non-existent 
physical infrastructure and weak economic conditions in general hinder 
if not rule out a robust housing sector.
    Without a doubt, NAHASDA is the single biggest source of housing 
capital for Indian people and its success is dependent on how tribes 
can adequately address these other challenges.
Indian Trust Lands and the Indian Long-Term Leasing Act of 1955
    Most Indian tribal land is held in trust or restricted status by 
the United States for the beneficial ownership of Indian tribes or 
individual Indians. Trust lands may not be sold but may be leased for a 
variety of purposes under applicable law. The Indian Long-Term Leasing 
Act of 1955 (the 1955 Act) requires the approval of the Secretary of 
the Interior (Secretary) for certain types of leases of Indian trust 
and restricted Indian lands. Any lease that is not approved by the 
Secretary is invalid.
    Timely processing of lease documents is critical not only for 
housing but also for Federal loan guarantee programs. One program--the 
Indian Home Loan Guarantee Program--also known as the Section 184 
Program, addresses the lack of mortgage lending in tribal communities 
by offering mortgage financing to eligible Native American individuals, 
families, tribes and tribally-designated housing entities. The Section 
184 Program, administered by HUD, guarantees these loans that are made 
by private sector lenders.
    Because tribal trust lands may not be foreclosed upon, borrowers 
are obliged to have a valid leasehold, which is also subject to the 
approval of the Secretary. In the event of a default, the physical 
structure and leasehold interest are subject to foreclosure. The 
requirement of secretarial review and approval for these leases, in 
this instance, is time-consuming and is a contributing factor to the 
low homeownership rate in Native communities.
    Current law authorizes leases for up to 25 years with an option for 
one additional 25-year term for a total 50-year term for ``public, 
religious, educational, recreational, residential, or business purposes 
. . .'' NAHASDA authorizes lease terms for ``housing development and 
residential purposes'' for 50-year terms, but retains the requirement 
of secretarial approval to render the lease valid.
    The Secretary, acting through the Bureau of Indian Affairs (BIA), 
administers the land leasing process which can become lengthy, taking 
months--and sometimes years--hindering housing, infrastructure, and 
related economic development on trust lands. Because of these delays, 
and the desire by individual Indian tribes for more authority and 
tribal control in the leasing of their own lands, 45 Indian tribes have 
sought relief from the 1955 Act by petitioning Congress for specific, 
tribe-by-tribe Federal legislation.
    Most recently, the Navajo Nation succeeded in amending the 1955 Act 
to develop and manage its own surface leasing ordinance. The amendments 
were made in 2000, and as a result the Navajo Nation may enter into 
lease agreements and renewals of leases without the Secretary's review 
or approval.

The HEARTH Act
    In 111th Congress, the HEARTH Act was introduced in the House of 
Representatives by Representative Martin Heinrich and introduced in the 
Senate by Senator Byron Dorgan. During its review and consideration by 
the Senate Committee on Indian Affairs, the bill was modified to 
include provisions related to tribal environmental review that were 
negotiated by the Senate Committee on Indian Affairs leadership, the 
Bureau of Indian Affairs, the U.S. Department of the Interior's 
Solicitor's Office, Representative Heinrich, and the NAIHC.
    The bill as modified was passed by the Senate Committee on Indian 
Affairs and it is this version that the NAIHC supports.
    In March 2011, Vice Chairman Barrasso, together with Chairman Akaka 
and Senators Tester, Udall, Thune, and Johnson introduced S. 703, the 
HEARTH Act of 2011. The House companion bill, H.R. 205, was introduced 
by Representative Heinrich in January 2011.
    The HEARTH Act will offer capable and willing Indian tribes the 
authority to enact their own tribal leasing regulations and to 
negotiate and enter into certain leases without the approval of the 
Secretary. It will go a long way in strengthening tribal self-
determination and tribal economies at the same time.
    As both H.R. 205 and S. 703 provide, it is crucial that any such 
proposal be made available to Indian tribes on a voluntary basis, 
leaving the decision as to whether to participate with the tribes 
themselves.
    In addition, the HEARTH legislation directs the BIA to prepare and 
submit to the Congress a report detailing the history and experience of 
Indian tribes that have chosen to assume responsibility for 
administering the Indian Land Title and Records Office (LTRO) functions 
from the BIA.

Conclusion
    The NAIHC strongly supports S. 703 because it respects and fosters 
Indian tribal decision-making, expedites what can often be lengthy 
Federal administrative processes, and will improve the delivery of 
Federal housing assistance and expand economic opportunity in tribal 
communities.
    Thank you and if you have questions I would be happy to answer 
them.

    The Chairman. Thank you very much, Ms. Causley.
    Mr. Tippeconnie, the National Congress of American Indians 
has supported the HEARTH Act in the past, and has taken a 
position that it will reduce the Federal costs involving 
approving leases for tribes. Can you describe how this 
particular legislation will reduce Federal costs?
    Mr. Tippeconnie. The area in which costs can be reduced is 
the fact that it takes years. If you look at the record of 
circumstances, I can think of a tribe in the northwest who 
attempted to get a lease, it took over a year and a half. Now, 
expenses are made on the side of the nation, the Indian nation, 
as well as on the side of the Federal Government. Because they 
have to affect time, effort and staffing to review these 
things.
    And of course, I would say from the National Congress of 
American Indians' posture that it is very, very expensive to 
the Indian nations themselves. And it is a real difficult 
thing, because the result may be, in the effort to attempt to 
get a lease, one of the tribes, again, Swinomish of the 
northwest, they were hopeful to gain a million dollars a year 
in a lease. And that lease took over one and a half years to 
kind of work on.
    Well, what we find out in Indian Country, those persons 
that want to do business with a nation, they don't have that 
time. They are looking at a place where they can effect some 
return on their investment as well as that is what the Indian 
nations are attempting to do.
    The Chairman. Mr. Tippeconnie, can you describe to the 
Committee how the current bureaucratic delays in the leasing 
process have affected economic development opportunities for 
the tribes?
    Mr. Tippeconnie. Yes. As I cited earlier, I cited the 
Swinomish taking that time where they could have, hopefully, 
gained a million dollars revenue to the nation. But because it 
was taking such time delays to get approval from Interior, they 
lost out on that.
    Also there have been the wind power opportunities in the 
Plains area, like on the Rosebud in the Dakotas. They too, 
wanting to effect leases, there comes a point when the parties 
that want to venture or work with Indian nations just lose 
patience. Because again, you can't sit on these financial kinds 
of matters. They are very, very necessary to effect quickly.
    So that is a result, it is just too much time. If the 
nations had this law passed, you can see that it expedites. It 
is in the hand of the Indian nation itself and can be hopefully 
expedited in time.
    The Chairman. Ms. Causley, in your testimony you state that 
an estimated 200,000 housing units are needed in Indian 
Country. In your opinion, how will enactment of the HEARTH Act 
help to address the need for housing units in Indian Country?
    Ms. Causley. For tribal members who are qualified to go out 
and obtain a mortgage, what we do is we take them in, we 
usually do some type of credit counseling and we fit them into 
a slot. I hate to put it that way, but that is what we do in my 
particular office. We see if they are better for a rental 
program, if they can obtain a conventional mortgage, if they 
need a 184 program, or perhaps a USDA product.
    If we go the conventional mortgage route, or even the 184 
route, the time constraints on our reviewing the mortgage and 
the leasehold process really, really affects the bank's 
interest. You also have the time involved of the housing 
authority staff trying to put these products out. When you are 
talking two and three years in some instances, they are on the 
phone the majority of the time saying, ``where are we with this 
lease,'' and the progress is stopped.
    So the quicker administratively that we can put forth these 
things, the more houses we can put on the ground and the more 
interest we can get from the banks.
    The Chairman. Thank you for your responses. Would you have 
an idea of why there is such a delay on these decisions on a 
lease?
    Ms. Causley. I think there is so much housing needed 
throughout Indian Country, and they are severely understaffed, 
undermanned. They have other situations that they have been 
dealing with. It is just a slow, cumbersome product that I 
believe the majority of our tribes, if they wish, could do much 
more efficiently.
    The Chairman. Thank you.
    Senator Barrasso?
    Senator Barrasso. Thank you very much, Mr. Chairman. I just 
want to follow up on the lead that you had set with these 
questions. It is a concern when you hear the shortage of 
200,000 housing units and the impact on economic activity and 
opportunities, as well, as you both testified.
    If I could ask you, Mr. Tippeconnie, we talked about how 
this has affected economic opportunities. Do you think if we 
got this passed, it would actually be able to expand economic 
activity?
    Mr. Tippeconnie. Oh, yes, I could envision that. Because 
those that would like to venture in a relationship of economic 
opportunity to the nations, they can see the time frame may be 
considerably reduced, and that they have a party that they 
directly relate to. Yes.
    Senator Barrasso. So the overall question then is, can you 
kind of characterize what interest there is out there among 
Indian tribes in taking advantage of the HEARTH Act, if we are 
able to get this successfully passed and signed into law?
    Mr. Tippeconnie. I think there is a great anxiousness. If 
you go across the Country, every tribe is attempting, I can't 
speak and say just generally, every tribe, but I would like to 
imagine that they do, as we hear it, they are wanting a diverse 
enterprise or economic opportunity. Some don't have that, and 
some sit, as I mentioned, with wind power opportunities or 
energy options. They would like to see those expedited.
    So if it is in their hands, you can see the party with whom 
they were working, they are more of a willing partner. Because 
time is of the essence when you get into financial 
relationships.
    Senator Barrasso. Ms. Causley, I saw you shaking your head. 
Is there anything you would like to add to that?
    Ms. Causley. Investors have a very, very short time frame. 
They are also dealing with short terms of tribal governments. 
So when they come and they offer you a product, it is necessary 
that you are able to say, ``yes, I can do that and I can do it 
now.'' Otherwise, you will not maintain their interest for very 
long. And the same goes for bankers.
    Senator Barrasso. In your written testimony, I think you 
did a very nice job of explaining that the BIA's ``land leasing 
process can be lengthy, taking months and sometimes years,'' 
and you went on to say ``hindering housing infrastructure and 
related economic development on trust lands.''
    I don't know if you could maybe provide the Committee 
either now or maybe later in writing some details on the causes 
of such a time-consuming land leasing process, and thoughts 
that you have on that.
    Ms. Causley. The current leasing process is so overly 
burdensome. We all have to support the HEARTH Act, because it 
creates an efficient means for tribes who have capacity to 
basically operate and manage their surface leasing process on 
their tribal lands. It is time for the Federal Government to 
support tribal self-determination, allow tribes the opportunity 
to achieve our own visions for our communities. And they can't 
do that without complete tribal control.
    We believe the overly burdensome environmental review 
process defeats the goals of the HEARTH Act, and requires a 
tribe to fully implement a NEPA-like process for every 
residential lease, even those homes that are privately 
financed. It is an imposition on tribal authority, on 
sovereignty, and will slow down, rather than expedite, home 
ownership on tribal land and any kind of economic development.
    Senator Barrasso. I want to ask a question for both of you 
to respond to. The long-term leasing act limits the authority 
of most Indian tribes to enter into surface leases with the 
approval of the Secretary to a primary term of up to 25 years, 
and then a one-time renewal of up to 25 years. So for decades, 
Indian tribes have sought and obtained from Congress some 
exemptions from the Act's restrictions on the duration of these 
leases. The Act has been amended a number of times over the 
years to add the names of Indian tribes to a list of tribes 
authorized to enter into the surface leases, with the approval 
of the Secretary, for a term as you know up to 99 years.
    The HEARTH Act would authorize tribes to enter into 
business and agricultural leases without the approval of the 
Secretary, which is what we want, for a primary term of up to 
25 years and then two renewal terms of up to 25 years each, so 
for an additional 50 years. Do you believe that restriction of 
the two 25 year terms, is that an appropriate number for us to 
look at?
    Mr. Tippeconnie. Of course, it always depends upon the 
tribe itself. Because if you look into the circumstances, I 
think the term is a great option. It gives the nation that 
flexibility to continue with some enterprise or some financial 
relationship.
    But again, I would say, it is dependent. And of course, it 
would take due diligence on the part of the nation to be sure 
that when they enter into something that they would extend 
beyond. Of course, when you get into these relationships, 
financial, they want more than the 25 years, especially when 
you look at something that is very profitable, it is really an 
enterprise that will generate a great return to both parties. 
They want a term that is greater than the 25 years. And of 
course, if they could extend and they are successful in the 
marketplace, each of us in that relationship, then certainly 
the longer term is greater.
    Senator Barrasso. I will ask another part of the question, 
because you've made me think about this, and you can respond to 
the whole thing, just give me your best thoughts. Do you 
anticipate that there are tribes which have the authority to 
enter into the surface leases for that term of up to 99 years, 
if they would be discouraged from taking advantage of the 
HEARTH Act? I would be happy to hear from either or both of you 
on that.
    Ms. Causley. I don't think they would be discouraged. 
Currently right now, the BIA is going through some revisions of 
the residential leasing regulations. And NAIHC has been working 
with them on those year terms. So hopefully our member tribes 
and the tribes at NCAI and all of the ones that have set forth 
their resolutions can come to an agreement and we will all push 
forward with the same number.
    Senator Barrasso. Is there anything else that you would 
like to share with the Committee? We will make this part of the 
permanent record, anything we may not have asked that you would 
like to share with us?
    Mr. Tippeconnie. One thing I would like to share is the 
fact that the Secretary's regulations, you somewhat have to be 
in compliance with. So we would hope we have a relationship in 
that effort.
    But also, I want to express the fact that there is this 
environmental process. And I want to make the point that Indian 
nations are very strong about that as well. If we get into 
something that is necessary to be smart in the eyes of our 
adjoining public as well as our own Indian nation and our 
peoples, I just want to bring on the record that yes, we will 
be smart about that.
    Senator Barrasso. Ms. Causley, anything else on your mind 
that you would like to share with us?
    Ms. Causley. I would just like to go back to the 2009 
testimony of a Navajo man that actually provided testimony on 
this Act. He stated right now that we have a lot of what he 
referred to as our soccer moms and dads leaving the reservation 
Because we have no place to bring them back to, because it is 
so difficult to gather housing that they qualify for. They are 
not low income, we can't help them. If they cannot get a lease 
and build their own, they are not coming back.
    Unlike other places, we tend to teach our youth from our 
examples and our teachings are more than just books. We need to 
find a way to keep our talented young role models within our 
communities and back home. And I appreciate you helping us do 
that.
    Senator Barrasso. Mr. Chairman, I think we have certainly 
heard, through your leadership, a compelling case for support 
of the HEARTH Act, which we have multiple co-sponsors on this 
Committee.
    Thank you, Mr. Chairman. Thank you very much.
    Ms. Causley. Thank you for all your support.
    The Chairman. I want to thank my partner, friend and Vice 
Chairman for his part in this. We will look forward to working 
with him.
    I also want to thank our witnesses for participating in 
today's hearing. I know many of you have traveled a long way, 
and we thank you for that. I also want to thank the 
Administration for providing their views on these very 
important bills, and for us to continue to try to find ways of 
working together, and trying to improve the processes that are 
now in place.
    I appreciate your testimony on the struggle you have faced 
in trying to bring Federal recognition to your tribes. As you 
are probably aware, I am fighting for the native people of 
Hawaii to receive recognition and have the same rights as 
federally-recognized tribes. So I fully understand how 
important this legislation is to the people of Little Shell 
Tribe, and I look forward to working with Senator Tester on 
moving this bill.
    I also understand the concerns of the Quileute Tribe and 
their people. I want to thank you for coming here today to 
share your story with the Committee. In Hawaii, we are all too 
aware of what it is like to live under the threat of a tsunami, 
and to deal with the devastating effects. This is an important 
bill and we look forward to working with Senator Cantwell to 
move the bill through Congress.
    As we have heard today, the HEARTH bill will improve the 
ability of tribes to manage their own resources. I really want 
to thank Senator Barrasso for his leadership on this bill. I 
will continue to work with him on this bill that is so 
important to tribes across our Country.
    I want to remind any interested parties that the hearing 
record will remain open for two weeks for any additional 
comments or questions they may have. And also for the members, 
as well.
    So again, thank you for all your valuable testimony and 
responses. I look forward to continuing to move these bills 
that are important to the people of America as well as the 
Senators that are on the Committee. Thank you very much. This 
hearing is adjourned.
    [Whereupon, at 4:15 p.m., the Committee was adjourned.]

                            A P P E N D I X







                                 ______
                                 
               Prepared Statement of the Cherokee Nation





                                  
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