[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
IMPLEMENTING THE COBELL SETTLEMENT: MISSED OPPORTUNITIES AND LESSONS
LEARNED
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON INDIAN AND
ALASKA NATIVE AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
Thursday, April 3, 2014
__________
Serial No. 113-67
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
______
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87-534 PDF WASHINGTON : 2015
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Rauul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Caardenas, CA
Paul A. Gosar, AZ Jared Huffman, CA
Rauul R. Labrador, ID Raul Ruiz, CA
Steve Southerland, II, FL Carol Shea-Porter, NH
Bill Flores, TX Alan S. Lowenthal, CA
Jon Runyan, NJ Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Steve Daines, MT Katherine M. Clark, MA
Kevin Cramer, ND Vacancy
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS
DON YOUNG, AK, Chairman
COLLEEN W. HANABUSA, HI, Ranking Democratic Member
Dan Benishek, MI Tony Caardenas, CA
Paul A. Gosar, AZ Raul Ruiz, CA
Markwayne Mullin, OK Eni F. H. Faleomavaega, AS
Steve Daines, MT Rauul M. Grijalva, AZ
Kevin Cramer, ND Peter A. DeFazio, OR, ex officio
Doug LaMalfa, CA
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Thursday, April 3, 2014.......................... 1
Statement of Members:
Hanabusa, Hon. Colleen W., a Representative in Congress from
the State of Hawaii........................................ 3
Prepared statement of.................................... 5
Young, Hon. Don, a Representative in Congress from the State
of Alaska.................................................. 1
Prepared statement of.................................... 2
Statement of Witnesses:
Azure, Mark L., President, Fort Belknap Tribal Council, Fort
Belknap Indian Community................................... 39
Prepared statement of.................................... 40
Berrey, John, Chairman, Quapaw Tribe of Oklahoma............. 24
Prepared statement of.................................... 26
Burke, Gary, Chairman, Confederated Tribes of the Umatilla
Indian Reservation......................................... 33
Prepared statement of.................................... 34
Questions submitted for the record....................... 38
Finley, Michael O., Chairman, Confederated Tribes of the
Colville Reservation....................................... 19
Prepared statement of.................................... 21
Questions submitted for the record....................... 23
Roberts, Lawrence S., Principal Deputy Assistant Secretary,
Indian Affairs, U.S. Department of the Interior............ 7
Prepared statement of.................................... 9
Questions submitted for the record....................... 11
Stafne, Grant, Councilman, Tribal Executive Board, Fort Peck
Assiniboine and Sioux Tribes............................... 42
Prepared statement of.................................... 43
Questions submitted for the record....................... 47
Additional Materials Submitted for the Record:
DeFazio, Hon. Peter A., a Representative in Congress from the
State of Oregon, Prepared statement of..................... 54
Grijalva, Hon. Rauul M., a Representative in Congress from
the State of Arizona, Prepared statement of................ 54
OVERSIGHT HEARING ON IMPLEMENTING THE COBELL SETTLEMENT: MISSED
OPPORTUNITIES AND LESSONS LEARNED
----------
Thursday, April 3, 2014
U.S. House of Representatives
Subcommittee on Indian and Alaska Native Affairs
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 2:08 p.m., in
room 1324, Longworth House Office Building, Hon. Don Young
[Chairman of the Subcommittee] presiding.
Present: Representatives Young, Daines, Hastings, Hanabusa,
and Grijalva.
Mr. Young. The subcommittee will come to order. I note a
presence of a quorum. We are meeting here today to hear
testimony on implementing the Cobell Settlement. And under the
Committee Rule there will be an opening statement by the
Chairman and the Ranking Member, and anybody else can submit
their statements.
STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF ALASKA
Mr. Young. Before we start the day's hearing I want to say
a word about Jimmy Newton, Chairman of the Southern Ute Indian
Tribe. Chairman Newton passed away on Monday at the age of 37.
Jimmy began his service to the Southern Ute Indian Tribe 2003.
In 2011 he was the youngest person to be elected to lead the
tribe. Jimmy often traveled to Washington to advocate for his
tribe, as well as the Ute Mountain Utes and the Utes of Utah.
Under his leadership, the Southern Ute Tribe continued in
its role as premier Indian tribal producer of natural gas and
other resources, and sought to assist other tribes to improve
their economic lives and the lives of their people. Men of
Jimmy's character and compassion are rare, and we were lucky to
have known him, even for the brief period he was with us.
Today the subcommittee will review the Land Buy-Back
Program of the Tribal Nations. This is a $1.9 billion program
through which the Secretary of the Interior will purchase, on a
willing-seller basis, fractionated Indian lands and consolidate
them in tribal ownership. Fractionation is a phenomenon that
has plagued Indian Country for more than a century, and is the
major reason why large tracts of Indian lands are unused.
I voted for the Claims Resolution Act, but it was with
reservations. Several aspects of the deal were flawed, and
neither the administration nor the plaintiffs agreed to fix
them. While then-Ranking Member Doc Hastings filed an amendment
to improve the Settlement in accordance with resolutions
adopted by major tribal organizations, House Majority Democrat
leaders refused to allow any changes. Nevertheless, Congress
determined that with its flaws, the deal was better than more
years of fruitless litigation.
Unfortunately, the Settlement's flaws identified by tribal
leaders and the major tribal associations in 2010 are causing
real problems that we will hear about today. The purpose of
today's hearing is to examine what is going on with the Buy-
Back Program, what is going wrong with it, what is going right
with it, and what can Congress do to improve it in consultation
with tribal leaders and individual land owners.
The Land Buy-Back Program was slow to launch. It appears
the Department has recently made large purchase offers acquired
by thousands of acres of land, and built up an Indian education
scholarship fund. It must be pure coincidence that these good
things began to occur only after the Department learned about
this hearing.
Before I turn to the Ranking Member for her opening
statement, I would like to comment on a remark made in the
written statement by Mr. Roberts today. Mr. Roberts says the
Cobell Settlement ``opened a new chapter''. This phrase,
``opened a new chapter,'' has been a refrain by this
administration with respect to tribal relations, as though no
deal was possible, but for this President. In fact, the Cobell
Settlement is merely a final version of legislation originally
proposed in 2005 by House and Senate committee leaders
following months of intense mediation they supervised. The only
other major difference between the 2005 deal and the present
one is this administration offers less to the Indians and more
to the trial lawyers. And that really upsets me.
The Settlement is not the opening of a new chapter, but the
continuation of a story that has been written. There remains
work to do, and I look forward to hearing from the tribal
leaders on how to make the Buy-Back Program work to their
benefit.
And, with that, I will recognize the Ranking Member.
[The prepared statement of Mr. Young follows:]
Prepared Statement of Don Young, Chairman, Subcommittee on Indian and
Alaska Native Affairs
Before we start today's hearing, I want to say a word about Jimmy
Newton, Chairman of the Southern Ute Indian Tribe. Chairman Newton
passed away on Monday at the age of 37.
Jimmy began his service to the Southern Ute Indian Tribe in 2003
and in 2011, he became the youngest person to be elected to lead the
tribe. Jimmy often traveled to Washington to advocate for his tribe as
well as the Ute Mountain Utes and the Utes of Utah.
Under his leadership, the Southern Ute Tribe continued in its role
as the premier Indian tribal producer of natural gas and other
resources and sought to assist other tribes improve their economies and
the lives of their people. Men of Jimmy Newton's character and
compassion are rare and we are lucky to have known him, even for the
brief period he was with us.
Today the subcommittee will review the Land Buy-Back Program for
Tribal Nations. This is a $1.9 billion program through which the
Secretary of the Interior will purchase on a willing-seller basis
fractionated Indian lands and consolidate them in tribal ownership.
Fractionation is a phenomenon that has plagued Indian Country for more
than a century and it is a major reason why large tracts of Indian
lands are unused.
I voted for the Claims Resolution Act, but it was with
reservations. Several aspects of the deal were flawed and neither the
Administration nor the Plaintiffs agreed to fix them. While then-
Ranking Member Doc Hastings filed an amendment to improve the
Settlement in accordance with resolutions adopted by major tribal
organizations, House Majority Democrat Leaders refused to allow any
changes. Nonetheless, Congress determined that with its flaws, the deal
was better than more years of fruitless litigation.
Unfortunately, the Settlement's flaws identified by tribal leaders
and the major tribal associations in 2010 are causing real problems
that we will hear about today.
A purpose of today's hearing is to examine what's going right with
the Buy-Back Program, what's going wrong with it, and what can Congress
do to improve it in consultation with tribal leaders and individual
Indian landowners.
The land buyback program was slow to launch. It appears the
Department has recently made large purchase offers, acquired thousands
of acres of lands, and built up an Indian education scholarship fund.
It must be pure coincidence that these good things began to occur only
after the Department learned about this hearing.
Before I turn to the Ranking Member for her opening statement, I
must comment on a remark made in the written statement of Mr. Roberts,
today's Administration witness.
Mr. Roberts says the Cobell Settlement legislation [quote] ``opened
a new chapter . . .'' [end quote].
This phrase--``opened a new chapter''--has been a refrain of the
Obama administration with respect to tribal relations. As though no
deal was possible but for this President.
In fact, the Cobell Settlement is merely the final version of
legislation originally proposed in 2005 by House and Senate Committee
Leaders following months of intense mediation they supervised.
About the only major difference between the 2005 deal and the
present one is that this administration offered less to the Indians and
more to the trial lawyers.
The Settlement is not the opening of a new chapter, but the
continuation of a story still being written.
There remains work to do and I look forward to hearing from tribal
leaders on how to make the Buy-Back Program work to their benefit.
______
STATEMENT OF HON. COLLEEN W. HANABUSA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF HAWAII
Ms. Hanabusa. Thank you, Chairman Young. And thank you to
our witnesses. I know our tribal leaders have come a long way
to be here, and it is good to see you.
Mr. Chairman, for more than a century, the Federal
Government has been the trustee of funds for individual
Indians. The amounts in these funds are generated from leases
on lands held in trust for purposes such as grazing, timber,
agriculture, and energy development. Over the years, the United
States has struggled to execute its fiduciary duties with
proper care. Systemic and appalling breaches of fiduciary duty
resulted in over a decade of class action litigation,
culminating in the 2009 Cobell Settlement.
Under the terms of the Settlement, the United States has
agreed to pay a total of $3.4 billion to compensate trust
beneficiaries, $1.5 billion of which was to pay directly to a
class of approximately 500,000 individuals, and $1.9 billion of
which was to be used to address the problem of land
fractionation on Indian reservations around the country. The
Settlement, which passed Congress in late 2010, became final in
November of 2012, following the exhaustion of appeals through
the U.S. Supreme Court.
Since that time, the Department of the Interior has begun
to implement the Settlement. The first round of payments to
individuals was sent out in 2013, and I understand a second
round of payments should be sent out later this year. I am
hoping the Department can shed some light on the timeframe of
those for today's hearing.
The Department is now also working on consolidated
fractionated land shares with the $1.9 billion dollars
allocated for that purpose, and have begun making offers to
tribes. The Senate Committee on Indian Affairs had a hearing
specifically on implementation of the Land Buy-Back Program
late last year, at which tribes expressed some concern over the
Department's methods. I hope that the Department can inform us
on how they are responding to those concerns today.
Mr. Chairman, I applaud your leadership in holding this
hearing, and I regret that, due to another commitment, I won't
be able to stay for the entire duration. I would be remiss,
however, if I didn't address a few issues before I left.
First, I know that the Department has been working hard to
implement the Settlement. But with regard to the Land Buy-Back
Program, they only have 10 years to spend the $1.9 billion
meant to consolidate fractionated land shares. I think it is
wise for Congress to check on their progress now. And I think
we should be open to doing whatever we need to to help them
implement the Buy-Back Program in a way that will benefit
tribes. And that was what its intended purpose was.
Second, I want to express my concern with some of the
rhetoric associated with the Cobell Settlement. Specifically, I
take issue with the way Settlement funding was portrayed in the
Majority's views and estimates letter to the President's Fiscal
Year 2015 budget. Settlement funds are not appropriations, nor
are they hand-outs. They are necessary compensation to resolve
a legal dispute. Let us not forget that key point when we
discuss the dollar amounts associated with the Cobell
Settlement; it is what the government owes to make things
right.
Finally, the grave mismanagement of funds that precipitated
the Cobell Settlement can never be allowed to happen again. The
only way the United States laid claim to the entire continent
was with the acquiescence of tribal governments that traded
land for special rights and privileges in treaties and other
legal documents. The United States took on the responsibility
to act as the fiduciary to the various tribes of indigenous
peoples. It did this willingly, and it got a much greater
benefit than it has given back. I say all this because the only
way such an outrageous breach of fiduciary duty could occur, as
that precipitating the Cobell Settlement litigation, is for
there to be an institutionalized culture that does not
understand and take seriously this reality. Let the Cobell
Settlement be a reminder.
Moreover, Mr. Chairman, our Nation's history is littered
with dark periods in which it was not living up to the duty it
took on toward tribes. And each time it caused us to look back
and have to repair the outcomes of its misguided policies. Yet,
too often, I see us repeating the same mistakes. I see it in
the Supreme Court's Carcieri decision and various trust cases,
which construe that responsibility narrowly. I see it in a need
for Native Hawaiian recognition and the lack of support from
some of my colleagues for Native Hawaiian programs.
None of these concepts should be issues for debate. The
Secretary of the Interior was permitted to take land into trust
for all federally recognized tribes because Assimilation Era
policies wrongfully took away over 90 million acres of tribal
lands. The United States serves as a trustee toward tribes
because, in exchange, it was able to spread across the
continent and become the world power that it is today. Programs
aimed at benefiting Native Hawaiians were put in place because
the United States was complicit in the overthrow of the Kingdom
of Hawaii. It is time for us to stop making the same mistakes
over and over again.
[The prepared statement of Ms. Hanabusa follows:]
Prepared Statement of Colleen Hanabusa, Ranking Member, Subcommittee on
Indian and Alaska Native Affairs
Thank you, Chairman Young.
And thank you, to our witnesses--I know our tribal leaders have
come a long way to be here. It's good to see you.
Mr. Chairman, for more than a century the Federal Government has
been the trustee of funds for individual Indians. The amounts in these
funds are generated from leases on lands held in trust for purposes
such as grazing, timber, agriculture, and energy development. Over the
years, the United States has struggled to execute its fiduciary duties
with proper care. Systemic and appalling breaches of fiduciary duty
resulted in over a decade of class action litigation culminating in the
2009 Cobell Settlement.
Under the terms of the settlement, the United States has agreed to
pay a total of $3.4 billion to compensate trust beneficiaries--$1.5
billion of which is to be paid directly to a class of approximately
500,000 individuals and $1.9 billion of which is to be used to address
the problem of land fractionation on Indian reservations around the
country.
The settlement, which passed Congress in late 2010, became final in
November of 2012 following the exhaustion of appeals through the U.S.
Supreme Court. Since that time, the Department of the Interior has
begun to implement the settlement. The first round of payments to
individuals was sent out in 2013, and I understand the second round of
payments should be sent out later this year. I am hoping the Department
can shed some light on the timeframe for those today.
The Department is now also working on consolidating fractionated
land shares with the $1.9 billion allocated for that purpose and have
begun making offers to tribes. The Senate Committee on Indian Affairs
held a hearing specifically on implementation of the Land Buy-Back
Program late last year, at which tribes expressed some concerns over
the Department's methods. I hope that the Department can inform us on
how they are responding to those concerns today.
Mr. Chairman, I applaud your leadership in holding this hearing and
I regret that, due to another commitment, I won't be able to stay for
its entire duration. I would be remiss however, if I didn't address a
few issues before I leave. First, I know the Department has been
working hard to implement the settlement, but with regard to the Land
Buy-Back Program, they only have 10 years to spend the $1.9 billion
meant to consolidate fractionated land shares. I think it wise for
Congress to check on their progress now and I think we should be open
to doing whatever we need to do to help them implement the Buy-Back
Program in a way that will benefit tribes as it is intended.
Second, I want to express my concern with some of the rhetoric
associated with the Cobell Settlement. Specifically, I take issue with
the way settlement funding was portrayed in the Majority's Views and
Estimates letter on the President's Fiscal Year 2015 budget. Settlement
funds are not appropriations nor are they handouts. They are necessary
compensation to resolve a legal dispute. Let us not forget that key
point when we discuss the dollar amounts associated with the Cobell
Settlement.
Finally, the grave mismanagement of funds that precipitated the
Cobell Settlement can never be allowed to happen again. The only way
the United States laid claim to an entire continent was with the
acquiescence of tribal governments that traded land for special rights
and privileges enshrined in treaties and other legal documents. The
United States took on the responsibility to act as a fiduciary to the
various tribes of indigenous peoples--it did this willingly and it got
a much greater benefit than it has given back. I say all of this
because the only way such an outrageous breach of fiduciary duty could
occur--as that precipitating the Cobell litigation--is for there to be
an institutionalized culture that does not understand and take
seriously this reality. Let the Cobell Settlement be a reminder.
Moreover, Mr. Chairman, our Nation's history is littered with dark
periods in which it was not living up to the duty it took on toward
tribes and each time, it caused us to look back and have to repair the
outcomes of misguided policies. Yet, too often I see us repeating the
same mistakes. I see it in the Supreme Court's Carcieri Decision and
various trust cases which construe that responsibility narrowly. I see
it in the need for Native Hawaiian Recognition and the lack of support
from some of our colleagues for Native Hawaiian programs. None of these
concepts should be issues for debate. The Secretary of the Interior was
permitted to take land into trust for all federally recognized tribes
because Assimilation Era policies wrongfully took away over 90 million
acres of tribal lands. The United States serves as a trustee toward
tribes because in exchange, it was able to spread across the continent
and become a world power. Programs aimed at benefiting Native Hawaiians
were put in place because the United States was complicit in the
overthrow of the Kingdom of Hawaii.
It is time for us to stop making the same mistakes over and over
again.
I yield back.
______
Ms. Hanabusa. And I yield back, and I do want to say
something. You saw me smile when he made a comment about trial
lawyers. He does it on purpose, because I am a lawyer. It
wasn't about anything else he said, it was because he was
taking his usual ding at me.
[Laughter.]
Ms. Hanabusa. But I yield back. Thank you.
Mr. Young. I thank the madam for her comments about this
bill, and rightfully so. And also the last part of it, too.
Thank you.
At this time I would like to recognize the Chairman, Doc
Hastings, for introduction of his witness.
Mr. Hastings. Thank you very much, Mr. Chairman, and thank
you for having this hearing today. It is my pleasure to
introduce the second witness, at least on my list, Chairman
Michael Finley of the Confederated Tribes of the Colville.
Chairman Finley and I became acquainted when this issue was
going through its process. And at that time, my district did
not include part of the Colville Reservation. But I felt that
the concerns that he was talking to me about that time
warranted more of my involvement. And, as you mentioned in your
opening statement, we did have an amendment to make some
corrections.
But, since redistricting now, part of the Colville
Reservation is in my district. Although I know that the
Chairman does not live in my district, I can claim at least
part of him. But it is my pleasure to introduce to you and to
the committee, Michael Finley, who is the Chairman of the
Confederated Colvilles. Michael, good seeing you.
Mr. Young. We thank you, Mr. Chairman. And, welcome, by the
way.
And now, Mr. Daines, would you introduce the other witness
that comes from your district?
Mr. Daines. Yes, thank you, Mr. Chairman. It is truly my
honor to introduce two distinguished tribal leaders from
Montana. The first is President Mark Azure of the Fort Belknap
Tribal Council from the Fort Belknap Indian Community. As I
have traveled around Montana, I have heard a lot from Indian
Country related to this issue of the Cobell Settlement and
fractionated lands. In fact, in Montana, we have seven
federally recognized tribes, and have some of the most
fractionated country in the United States. In fact at Fort
Belknap, there are 5,352 tracks held in trust, and 3,024
fractionated tracks with purchasable interest alone.
In addition to President Azure, we are also pleased to have
Councilman Grant Stafne, on the Tribal Executive Board of the
Fort Peck Assiniboine & Sioux Tribes. Again, they are in the
Fort Peck. We have 7,463 tracks held in trust, 4,005 are in 21
fractionated tracks with purchasable interest.
So, I am grateful to have these two leaders from Montana
with us here today who are living right in the middle of what
is going on with the Cobell Settlement. And, with all due
respect to our distinguished Ranking Member, I do think the
lawyers seem to be winning right now, and the folks on the
other end aren't. So let's see if we can change that score.
Mr. Young. I do think the gentleman, and I can't agree with
you more, is right, the idea of this was to solve a problem.
And I will tell you one thing, because there is a time limit,
if we can't do anything else we ought to extend that time
limit. Because my understanding, the settlement, if it isn't
dispersed and making these lands consolidated, the money goes
back to the Treasury. And it is a settlement, and it shouldn't
do that.
So, Mr. Chairman, I hope you listened to that very
carefully.
And I want to welcome the panel and thank you for being
here.
Mr. Roberts, you are the first one that is going to
testify. And I apologize for you being at the end of the table.
There is nothing significant about that, and I want you to know
that, Mr. Roberts. You are in good shape. Go ahead.
Mr. Roberts. I am in good company here with all these
tribal leaders, Chairman.
Mr. Young. Yes.
Mr. Roberts. Thank you.
Mr. Young. Yes.
STATEMENT OF LAWRENCE S. ROBERTS, PRINCIPAL DEPUTY ASSISTANT
SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR
Mr. Roberts. Good afternoon, Chairman Young, Chairman
Hastings, Ranking Member Hanabusa, other members of the
committee. Thank you for inviting us here to testify today. My
name is Larry Roberts. I am the Principal Deputy Assistant
Secretary for Indian Affairs. I answer directly to Assistant
Secretary Kevin Washburn. And I am a member of the Oneida
Nation of Wisconsin.
In 2010, Congress did enact this historic legislation. And,
Chairman, I heard you take a quote out of the new chapter
there. And I think what we really meant by, or what I meant by
that new chapter language is that over the years that Cobell
was being litigated it really caused a lot of consternation
between tribes and the Department of the Interior, such the
fact that Assistant Secretary Washburn says all the time if
Cobell hadn't been settled, he would not have taken that job,
because the discord between Interior and tribes was palpable.
And so, by settling that litigation, it allowed us to move
forward. And what we are focused on at the Department of the
Interior here is the legislation that you all passed provides
$1.9 billion to return lands to tribes. And all of the future
income that is returned, all the future income of those lands
that are returned to tribes, that future income is going to
belong to tribes.
And so, not only that, but by purchasing these fractionated
interests, and we have heard about the large amounts there,
tribal members who want to sell, it is a voluntary program. If
they want to sell they are going to receive fair market value,
and they are going to infuse money into their tribal
communities.
So, approximately 90 percent of all the purchasable
fractional interests are located within 40 reservations. So 90
percent of the interests are in 40 reservations that we are
aiming to consolidate. The Pine Ridge Reservation alone
accounts for 8 percent of all of those interests. In Montana
and Wyoming, if you look at those reservations in both Montana
and Wyoming, we have targeted over $406 million to purchase
lands to return to tribes.
Tribal leadership and involvement is critical, absolutely
critical, to the success of the program. We, Kevin and I, and
the Department of the Interior, know that the best proponents
of this program are tribal leaders themselves. We most recently
held an open solicitation to request expressions of interest
from tribes wanting to participate in the program. Nearly 60
tribes responded. And that 60-tribe response rate, it shows the
support and interest in the goals of the program by tribal
leadership.
While the Department is willing to run a program without a
formal tribal cooperative agreement, if a tribe prefers, the
Department hopes to enter into cooperative agreements with as
many tribes as possible to implement the Buy-Back Program.
Again, we know that tribes are going to be most effective in
explaining the benefits and talking about the program to their
own communities.
With regard to cooperative agreements being key, we have
announced three cooperative agreements with tribes, and we
anticipate announcing more soon. One goal, a goal of the Buy-
Back Program, is to spend as much of the fund as possible on
acquiring land, and as little as possible on the administration
of the Buy-Back Program. So I know tribes are concerned about
the cooperative agreement process. Heard directly from them
about it, the cooperative agreement process, being burdensome
and overly complex, and we are going to look at ways to improve
that process so that everyone's time and attention can focus on
making the program as successful as possible.
We have also heard from tribes that the fund should be
invested to generate interest, and that the program should be
eligible for 638 contracting. The legislation doesn't provide
for the Department to either invest the fund or to enter into
638 contracts.
Over the last 4 months, the Buy-Back Program has returned
the equivalent of over 40,000 acres, collectively, to the
Oglala Sioux Tribe, the Makah Tribe, and the Rosebud Sioux
Tribe. We have issued over 18,000 offers to individuals. And,
in fact, we have returned over 40,000 acres specifically, just
to the Oglala Sioux Nation, alone. And we have made payments of
over $14 million over the last 4 months, over $14 million, to
Pine Ridge allottees.
So, it is support from the leadership of Chairman Greene
from Makah, it is support from tribal leadership, like
President Brewer from Oglala Sioux, that has been critical to
this progress.
So I think the level of interest expressed by tribes over
the past year demonstrates the importance of the program, and
our collective desire to make it be successful. I know all of
these tribal leaders are here today because they want the
program to be successful, and they want it to be implemented
within Indian Country.
Restoring tribal homelands is one of our highest
priorities, and the interests are almost entirely within
existing reservations.
We appreciate the committee's interests in the Buy-Back
Program, and I look forward to answering any questions you may
have.
[The prepared statement of Mr. Roberts follows:
Prepared Statement of Lawrence S. Roberts, Principal Deputy Assistant
Secretary, Indian Affairs, U.S. Department of the Interior
i. introduction
Good afternoon, Chairman Young, Ranking Member Hanabusa, and
members of the committee. Thank you for the opportunity to provide the
Department of the Interior's (Department) statement at this oversight
hearing on ``Implementing the Cobell Settlement.''
In 2010, Congress enacted historic legislation to bring to a close
the Cobell litigation. After decades of contentious litigation that
affected virtually every aspect of the Department's relationship with
tribes, the legislation opened a new chapter by providing, among other
things, $1.9 billion to restore fractionated lands to tribal trust
ownership. This $1.9 billion fund helps to reverse the impacts of the
repudiated allotment and assimilation policy. That destructive policy
resulted in the loss of approximately 90 million acres of tribal lands
in less than 50 years. Although Congress repudiated that policy nearly
80 years ago, its impact on nearly every aspect of tribal life--whether
it be law enforcement, economic development or day-to-day governance--
continues to be felt every day in tribal communities.
The magnitude of fractionation is enormous. There are over 2.9
million trust or restricted fractional interests spread across more
than 150 reservations that are owned by more than 243,000 individuals.
Approximately 90 percent of the purchasable fractional interests are
located within 40 reservations. The Pine Ridge Reservation alone
accounts for over 8 percent of the purchasable fractional interests.
The Cobell case came about in part because of a very serious
problem created by Federal laws on allotment. The settlement was
designed to address some of those longstanding problems. The Land Buy-
Back Program for Tribal Nations (Buy-Back Program) is one tool that
will help alleviate the impacts of fractionation. A goal of the Buy-
Back Program is to spend as much of the Fund as possible on acquiring
land and as little as possible on administration of the Buy-Back
Program. Through purchases from willing sellers, the Buy-Back Program
is transferring trust and restricted interests directly to tribes so
that tribes can utilize the land. For example, over the last 4 months
the Buy-Back Program has transferred the equivalent of over 30,000
acres of land to the Oglala Sioux Tribe. In the short term, much of the
money paid to obtain the interests will be spent in these tribal
communities. In the long-term, transferring millions of acres of land
to tribes will ultimately strengthen each tribal community and generate
economic and generational benefits to those communities. Tribal
acquisition of fractionated lands will ``unlock'' those lands, making
them available to support economic development to benefit tribal
members. This important work can succeed only with the collaborative
involvement of tribal leaders and their communities. As sales occur,
the Buy-Back Program will contribute part of the Fund (up to $60
million) to the Cobell Education Scholarship Fund--an initial
contribution to the scholarship fund, totaling nearly $580,000, has
already begun.
ii. implementation of the buy-back program
The Cobell Settlement became final on November 24, 2012, following
the exhaustion of appeals through the U.S. Supreme Court. Less than a
month following final approval, the Department of the Interior
established the Land Buy-Back Program for Tribal Nations (Buy-Back
Program) and published an Initial Implementation Plan. The Department
engaged in government-to-government consultation on the Plan--with
consultations in Minneapolis (January 2013); Rapid City (February
2013); Seattle (February 2013) and held numerous meetings with tribes
and inter-tribal organizations. In recognition of the complexity and
importance of the Buy-Back Program, it was established in the Office of
the Deputy Secretary. The Department also established an Oversight
Board, chaired by the Deputy Secretary. The Oversight Board includes
the Solicitor, the Assistant Secretary-Indian Affairs, the Director of
the Bureau of Indian Affairs, and the Special Trustee for American
Indians.
We are working diligently to implement the Buy-Back Program. Since
November 24, 2012, we have:
Sent offers to nearly 19,000 landowners exceeding $150
million.
Transferred land to tribal trust ownership for three
tribes, totaling over 40,000 acres through purchases from
willing sellers.
Paid over $12 million dollars to Indian landowners across
the United States.
Entered into cooperative agreements, totaling over $1.4
million, with the Oglala Sioux Tribe, Confederated Salish
and Kootenai Tribe, and Northern Cheyenne Tribe, enabling
in part the involvement of over 20 full-time tribal
employees.
Hired 59 full-time employees and expended approximately $8
million of the overall implementation/administrative
portion of the fund:
--Outreach $1.8 million;
--Land Research $1.1 million;
--Valuation $1.2 million;
--Acquisition $2.5 million; and
--Trust Commission $900 thousand.
Some of these expenditures included one-time, up-front costs,
such as the Trust Commission, mapping, and equipment.
Held an open solicitation (from November 2013-March 2014)
to encourage tribes from the most fractionated locations to
express interest in developing cooperative agreements based
on tribal priorities.
Communicated directly with at least 50 tribes (28 with
jurisdiction over the most fractionated reservations),
including meetings with several on or near their
reservations.
Obtained independent, outside review of the Program's
appraisal methodology by The Appraisal Foundation (TAF).
Launched a substantive website, www.doi.gov/
buybackprogram, to provide information about the Buy-Back
Program, especially for tribes and individual landowners.
Expanded our Trust Beneficiary Call Center to answer
questions and register ``interested sellers.''
Established policies such as flexible purchase ceilings
for fractionated reservations to ensure that as many
reservations as possible can benefit from the Buy-Back
Program.
Set a base payment amount of $75 for submitting an
accepted offer and a base payment of $7.50 per acre for
subsurface or mineral ownership interests with nominal or
no value.
Tribal leadership and involvement are crucial to the success of the
Buy-Back Program. While the Department is willing to run the program
without a formal tribal cooperative agreement if a tribe prefers, the
Department hopes to enter cooperative agreements with many tribes to
implement the Buy-Back Program through a Federal-tribal partnership,
which will promote tribal ownership of program, minimize administrative
costs, and improve overall effectiveness and efficiency.
Accordingly, we held an open solicitation to request expressions of
interest from the tribes having the most fractionated reservations. As
a result, nearly 60 tribes have submitted a cooperative agreement
application or letter of interest to the Program. The open solicitation
facilitates increased tribal input in the timing and sequencing of
Program implementation. The Department will rely on this tribal
interest along with other factors, such as degree of ownership overlap,
geographic diversity, and appraisal complexity, to guide implementation
of the Buy-Back Program. The Department will implement the Buy-Back
Program in a flexible manner and continue to update its approach to
reflect lessons-learned, best practices, and tribal involvement.
iii. lessons learned
The Buy-Back Program is an effort of significant scope and
complexity, which has great importance to Indian Country. As we
continue to implement the Buy-Back Program, we have incorporated
lessons learned, best practices, and tribal feedback to enhance the
overall effectiveness of the Program's implementation strategy. We have
heard from tribes on a number of issues, including the cooperative
agreement process, scheduling, and reporting on both the expenditure of
administrative costs and the acceptance of offers on reservations.
Many features of the Buy-Back Program design have come as a direct
result of tribal consultation, such as the need for a minimum base
payment to sellers and provision of indirect costs.
Tribes are concerned that the cooperative agreement process is
burdensome and overly complex. We have developed instructional
materials, hosted a webinar for tribal leaders, and provided one-on-one
technical support to tribes. In addition, we revised the cooperative
agreement forms, and we will continue to look at ways to improve the
process so that everyone's time and attention can focus on making the
Program as successful as possible.
The Buy-Back Program also responded to lessons learned regarding
scheduling. We heard from Indian Country that all fractionated
locations should have the opportunity to participate, not simply the
locations with 90 percent of fractionated lands. As a result, the
Program has pursued opportunities to include less fractionated
locations in early implementation efforts, which will help us develop a
comprehensive strategy for the purchase of fractional interests at as
many less fractionated locations as possible. We also recognize that
the Department cannot develop an implementation schedule without input
from tribes. The Program's open solicitation garnered several
cooperative agreement applications and letters of interest. We are
currently evaluating the applications and determining which locations
can be completed most efficiently.
Indian Country has also called for information on expenditures and
the acceptance of offers on reservations. The Department is committed
to reporting this information on a regular basis. As described above,
the Program has spent approximately $8 million dollars for
implementation. In December 2013, the Program made approximately 3,000
offers to individuals that own interests at the Pine Ridge, Rosebud,
and Makah reservations. The offers totaled approximately $50 million.
Approximately 29 percent of the initial offers set out have been
accepted, resulting in payments to landowners totaling nearly $11
million and the consolidation and restoration of over 30,000 acres to
tribes. In March 2014, the Program sent additional purchase offers to
nearly 16,000 individual landowners in the Pine Ridge Reservation for a
total amount that exceeds $100 million; approximately 10,000 more acres
have already been restored to the Oglala Sioux Tribe based on early
results of these additional offers. In the near future, the Buy-Back
Program will mail additional offers to individuals that own interests
at the Rosebud and Makah reservations.
In addition to the areas discussed above, Interior has implemented
changes in response to lessons learned at these first few locations.
For example, we have expanded our national outreach given that
landowners on the Pine Ridge Reservation resided in all 50 States as
well as Canada, Germany, England, Italy, Qatar, Taiwan and the
Philippines. We have updated our deed application to address feedback
from landowners, and improved information on our website based on
questions from the field. We are constantly seeking ways to incorporate
feedback and improve the Buy-Back Program.
Finally, we note that some tribal leaders have voiced concern that
the $1.9 billion Land Consolidation Fund (Fund) is not currently being
invested. Unfortunately, the Claims Resolution Act of 2010 does not
provide the Department with authority to invest the Fund to generate
interest.
iv. conclusion
The level of interest expressed by tribes over the past year
demonstrates the importance of the Buy-Back Program and our collective
desire for it to be successful. Transferring millions of acres directly
to tribes will provide countless opportunities for this and future
generations. Restoring tribal homelands is one of our highest
priorities and these interests are almost entirely within existing
Indian reservations. We appreciate the committee's interest in the Buy-
Back Program and look forward to answering any questions.
______
Questions Submitted for the Record to Lawrence S. Roberts, Principal
Deputy Assistant Secretary, Indian Affairs, U.S. Department of the
Interior
Questions Submitted by Chairman Don Young
Question 1. In March the Buy-Back Program made more than $100
million in offers to owners of fractional interests at the Pine Ridge
Reservation and these individuals have 45 days to accept or reject the
offers. What is the acceptance rate so far for these offers?
Answer. As of September 29, 2014, the Department has an approximate
acceptance rate of 48 percent based on the three sets of offers to
landowners with interests at the Pine Ridge Reservation. The Program's
acceptance rate on all of the offers that have been sent to landowners
with interest is 36 percent.
Question 2. In the hearing, you heard from Chairman Finley that 4
years ago the Administration opposed changing the Cobell Settlement
Agreement to allow tribes to contract the Buy-Back program under the
Indian Self-Determination Act. Is this still the Administration's
position?
Answer. The Department strongly supports the spirit of self-
determination and self-governance. Although the Cobell Settlement
Agreement (Settlement) and the Claims Resolution Act do not allow the
use of Indian Self-Determination and Education Assistance Act (ISDEAA)
agreements to operate Buy-Back Program activities, the Buy-Back Program
gains the benefit of tribal participation by entering into cooperative
agreements and more informal arrangements with tribes to undertake land
consolidation tasks.
The Department and the Administration are strong supporters of the
ISDEAA. However, any proposed changes to the Buy-Back Program must take
into account the progress we have made in the Program and the potential
delays and additional implementation costs that a new process may
cause.
In comparison to other Federal programs, the Land Buy-Back
Program's limited, 10-year timeframe and its 15 percent cap on
implementation costs (for outreach, land research, valuation, and
acquisition activities) are unique. The parameters in the Settlement
necessitate relatively intense, short-term activity at each location to
maximize the number of the 150 locations and the some 245,000
individual land owners that may participate in the Program. If the
1SDEAA were extended to the Buy Back Program, the 10-year deadline
established by the Settlement would likely need to be extended to
provide the Program, and tribes, the additional time necessary:
to consult with tribes to determine an appropriate method
for allocating implementation costs under ISDEAA
agreements;
to provide training and conduct security clearances for
tribal staff at each location that seeks to accept
responsibility for the Program's acquisition phase through
an ISDEAA agreement;
for tribes that choose to use a site-specific appraisal
approach rather than a mass appraisal approach; and
for the Buy-Back Program to transition to any amendment to
ensure that it has proper staff and intra-agency agreements
in place to implement the law. Even if every tribe chose to
utilize ISDEAA agreements, the Program would need to
maintain staff to provide final approval of appraisals and
land transfers.
Moreover, acquisition and payment processing time may vary from
tribe to tribe under ISDEAA agreements. Currently, the Department is
able to print and mail 2,000 offers per day and pay owners promptly
that sell their fractional interests (since December 2013, the Program
has paid owners an average total of $667,000 per day). The process
integrates land title and trust fund systems of record, which enables
landowners to receive their offer packets shortly after appraisal
completion. Payments for accepted offers are deposited directly into
their Individual Indian Money accounts typically within an average of 5
business days of receiving a complete, accepted offer package.
In addition, and as indicated above, additional funding could be
necessary, should the ISDEAA be extended to the Buy Back Program, for:
tribal and Interior administrative costs associated with
any extension of the current 10 year implementation
deadline;
tribes to prepare proposals and negotiate with Program
representatives, including resources to provide technical
assistance to tribes for the development of agreements;
implementation of changes to processes that have already
been established;
appraisal work, which may increase (the Buy-Back Program
uses primarily mass appraisal methods whereas most tribes
in ISDEAA programs use site-specific appraisals); and
full contract support costs, which would need to be
provided under ISDEAA agreements (the Buy-Back Program
currently provides up to 15 percent in indirect costs
through cooperative agreements to minimize implementation
expenses consistent with the Settlement).
Existing Buy-Back Program costs and functions for tribes not
interested in utilizing ISDEAA agreements would remain the same;
consequently, the Buy-Back Program would continue to need funds to
maintain capacity for the Department to implement the program.
If the ISDEAA was extended to the Buy-Back Program without
additional funding, it is likely that the $285 million administrative
cost cap would be reached well before the fund available to purchase
land is exhausted. Thus, any increase in costs associated with an
ISDEAA extension would need to be authorized and appropriated so that
such costs do not diminish the funds available to return lands to
tribes.
Question 3. The committee has received testimony that CGI Federal,
the same Federal contractor that developed the healthcare.gov Web site,
is also involved in the Buy-Back program and may even have an ownership
interest in the TAAMS system. What involvement does CGI Federal have
with the program?
Answer. CGI Technologies and Solutions, Inc. is a subsidiary of CGI
Federal. CGI Federal was the lead contractor on the Web site for the
Affordable Care Act. The Bureau of Indian Affairs (BIA) awarded CGI
Technologies and Solutions, Inc. the contract for ADP Systems
Development Services and Automated Information System Design and
Integration Services. The result of that contract is the Trust Asset
Accounting Management System (TAAMS). In 2013, BIA requested that a new
TAAMS module be developed specifically to manage Land Buy-Back land
purchases. BIA also approved a Task Order for CGI to manage the Print/
Mail/Scan/Review portion of the acquisition process.
Question 4. The committee is aware that some tribes have expressed
a desire for the Buy-Back funds to be able to be invested or otherwise
earn value to maximize the number of interests that can be purchased.
Does the Department agree with this concept? If so, can it provide the
committee with a proposal on how this could be accomplished?
Answer. The Department has no authority to invest the Trust Land
Consolidation Fund (Fund). The Cobell Settlement sets forth the precise
purpose and use of the Fund. It states, in pertinent part, as follows:
``The Trust Land Consolidation Fund shall be used solely for the
purposes of (1) Acquiring fractional interests in trust or restricted
lands; (2) Implementing the Land Consolidation Program; and (3) Paying
the costs related to the work of the Secretarial Commission on Trust
Reform, including costs of consultants to the Commission and audits
recommended by the Commission. An amount up to a total of no more than
fifteen percent (15 percent) of the Trust Land Consolidation Fund will
be used for purposes 2 and 3.'' (Cobell Settlement Agreement at
Sec. F(2).)
Under the terms of the Settlement, any unexpended funds revert to
the Department of the Treasury if not expended within 10 years. The
Department has no authority to utilize, disperse, retain, or invest any
portion of the Fund in a manner inconsistent with the mandates of the
Settlement, as ratified by the U.S. Congress through the Claims
Resolution Act of 2010.
If legislation were enacted either authorizing investment of or
providing for the payment of interest on the Fund, such authority
should be granted to either the Department or to the U.S. Treasury. All
interest income earned from investment of the Fund should inure to
benefit of the Fund.
Question 5. What amendments can be made to the Cobell Settlement
Agreement or other applicable Federal law to improve the success of the
Buy-Back Program for Indian tribes?
Answer. We are pleased with the success of the Program thus far.
Thus far, we have successfully concluded transactions worth almost $146
million, restoring the equivalent of nearly 280,000 acres of land to
tribal governments.
From the lessons we have learned thus far there is one area for
improvement. The Settlement established the $1.9 billion Trust Land
Consolidation Fund for the purchase of fractional interests. Despite
the large size of the Fund, it is unlikely to contain sufficient
capital to purchase all fractional interests across Indian country.
In terms of amendments to the Cobell Settlement Agreement or other
applicable Federal law, Congress may want to consider amendments that
would clarify a State's ability to share appraisal information with the
Buy Back Program. We have observed this to be a hurdle in some States
and clarifying language could address such situations.
Questions Submitted by Ranking Member Colleen Hanabusa
Question 1. The Claims Resolution Act of 2010 states that the
Secretary has 10 years from the date of the final settlement to spend
the $1.9 billion of the Trust Land Consolidation Fund. By my
calculation, we are already about 4 years in and the Department has
just recently sent purchase offers to three tribes. At this rate, do
you expect the 10-year window to be long enough to enable you to spend
all of the $1.9 billion?
Answer. The Department is committed to implementing the Program in
the most efficient and cost-effective manner. The Settlement was
confirmed by the Claims Resolution Act of 2010 and approved with
finality on November 24, 2012, after appeals were exhausted through the
U.S. Supreme Court. The 10-year period occurs from November 24, 2012
(the date of Final Approval of the Settlement) to November 24, 2022.
During the first year of the Program, the Department focused on
joint planning with tribes, cooperative agreements, staffing, and
designing and laying out the strategy, methods, and key systems for
this 10-year Program. Tribal involvement, transparency, flexibility,
timely decisionmaking, and ongoing communication throughout the life of
the Program are critical to its success.
In less than 1 year we have successfully concluded transactions
worth almost $138 million, restoring the equivalent of nearly 277,000
acres of land to tribal governments (these transactions relate to eight
different locations). Deputy Secretary of the Interior Michael Connor
announced a schedule through 2015 for the continued implementation of
the Program that identified locations representing more than half of
all the fractional interests and unique owners across Indian Country.
The Department is planning to announce additional locations before the
end of the calendar year.
One approach that the Department is using to expend the Fund in a
timely manner is the use of mass appraisal techniques. The breadth,
scale, limited funding, and bounded life span of the Program
necessitate the use of mass appraisal methods where appropriate. The
Department intends to implement the Program fairly and equitably,
moving quickly to reach as much of Indian Country as possible during
this 10-year period. Mass appraisal is an efficient way to quickly
determine fair market value for a significant number of fractionated
tracts. By using the mass appraisal method where applicable, the
Program can maximize the number of owners that can receive payments for
the interests they decide to sell, and therefore the interests that
will be immediately restored to the tribes.
Question 2. When can members of the Trust Administration Class
expect their payments? Why have there been delays in issuing them?
Answer. The Cobell v. Salazar lawsuit ended in a settlement
agreement approved by Congress and by the U.S. District Court for the
District of Columbia, where the case was filed.
Under the settlement agreement, the Federal Government paid
approximately $1.5 billion into a settlement fund in a private bank.
The Plaintiffs administer that account under the supervision of the
district court and have responsibility for distributing the funds. The
government does not control the distribution of the settlement funds.
Pursuant to the Cobell Settlement Agreement as approved by Congress
and signed by the President on December 8, 2010 (Settlement Agreement),
specific notice and process provisions must be met before payments can
be made to the Trust Administration Class (TAC), also identified as
Stage 2 payments. Plaintiffs are required to identify all the TAC
members because that number will affect the calculation of the
settlement payments. See Settlement Agreement, at sec. E.4.a (``No
Stage 2 [TAC] payments shall be made until all Stage 2 Class Members
have been identified in accordance with this Agreement and their
respective pro rata interests have been calculated.'').
Plaintiffs hired (and the court approved) the Claims Administrator,
Garden City Group (GCG), to make the distribution. In late 2012, the
district court approved the first round of settlement payments to the
Historical Accounting Class (HAC), also identified as Stage 1 payments.
In the Stage 1 payments, each class member was paid $1,000. On January
23, 2014, the district court granted a motion by Plaintiffs to add
almost 13,000 members to the HAC.
Plaintiffs are now preparing to make the Stage 2 settlement
payments to members of the TAC. This part of the settlement calculation
is more complicated because the dollar amount paid to class members
will vary according to how much money was deposited in his or her
Individual Indian Money (IIM) account over time.
Trust Administration Class members who had no IIM account, or who
had no money deposited to an IIM account, will receive a minimum
payment. That minimum amount is based on: (1) the total number of class
members; and (2) the amount of money left in the settlement fund after
paying the Stage 1 settlement payments (plus the expenses of
administering the settlement). Plaintiffs cannot perform these
calculations for Stage 2 until they can identify the final number of
class members and reasonably estimate the amount of money available in
the settlement account after expenses.
Pursuant to the Settlement Agreement, a Special Master was
appointed to make determinations regarding the eligibility of
individuals to participate as members of the TAC. Before the TAC can be
finalized, the Special Master must resolve the appeals that ``self-
identifying'' putative TAC members made after they were denied
inclusion into the class by GCG. The Special Master is still
considering those appeals, and we have no timeframe for when the
appeals will be resolved. Once the universe of TAC members has been
identified, the calculation of TAC settlement payments can be
completed.
Question 3. A private firm, the Garden City Group, is arranging to
send out payments to the Trust Administration Class, but ultimately,
executing this duty is a Federal responsibility. Who in the Department
is responsible for overseeing the work of the Garden City Group and how
are they addressing class member concerns that expected payment dates
keep getting pushed back?
Answer. Plaintiffs, not the Federal Government, have the
responsibility to disburse payments to the members of the Cobell
classes pursuant to the Settlement Agreement and the legislation
authorizing its implementation. Payments to individual class members
are not considered trust unless and until they are transferred to the
Department pursuant to the settlement provisions noted below. They are
aided in that task by the appointed Claims Administrator, Garden City
Group (GCG). The government's limited involvement includes supplying
the ``best and most current'' contact information for each beneficiary
class member and indicating if the class member is a minor, non-compos
mentis, an individual under legal disability, in need of assistance, or
whose whereabouts is unknown, as well as receiving and holding proceeds
for individuals with IIM accounts who are identified in DOI's data as
``whereabouts unknown.'' See, e.g., Settlement Agreement at E.1.g
(``Defendants' Limited Role. Except as specifically provided in this
Agreement, Defendants shall have no role in, nor be held responsible or
liable in any way for, the Accounting/Trust Administration Fund, the
holding or investment of the monies in the Qualifying Bank or the
distribution of such monies.'').
With the settlement funds in a private bank, the settlement
distribution is entirely a private task, with the government merely
providing data (i.e., contact information, whereabouts unknown
information, etc.) to support Plaintiffs' (and GCG's) effort. Although
the Federal Government is not in charge of the Cobell settlement
distributions, the Department of the Interior does have program
responsibility for another part of the Cobell settlement: use of the
$1.9 billion Congress appropriated to buy back highly sub-divided
allotments on a voluntary basis from individual land owners. In
contrast to the monetary payments to class members, this ``Land Buy
Back'' portion is the responsibility of the Department of the Interior.
The Department of the Interior is not charged (by the Settlement
Agreement or otherwise) with overseeing the work of the Claims
Administrator GCG. With that in mind, individuals within the Department
(specifically, officials within the Office of the Special Trustee and
Office of the Solicitor) are working collaboratively with GCG for the
delivery of the contact information and to help resolve any questions
or concerns that may arise about the data. Supervision and oversight of
the Claims Administrator, however, remains with the district court.
Question 4. Does the Department have enough personnel to ensure the
timely implementation of the Land Buy-Back Program?
Answer. The Program currently employs 56 full-time employees
(Program Office 10, Bureau of Indian Affairs 14, Office of Minerals
Evaluation 13, and Office of Appraisal Services 19). In addition,
tribes may hire approximately up to 29 tribal staff through funding
available under cooperative agreements. The Program is also utilizing
contractors, particularly for acquisition (print/mail/scan) and
appraisal services.
Tribes will also continue to have an active role in implementing
the Program, particularly with respect to outreach activities. It is
critical that the Buy-Back Program and tribal leaders work together to
ensure that landowners are made aware of the opportunity to sell their
interests for the benefit of both the landowner and tribal communities.
The Department hopes to enter into cooperative agreements with as many
interested tribes as possible to take advantage of tribes' ability to
minimize administrative costs and to improve the overall effectiveness
and efficiency of the Buy-Back Program. The Department currently has
formal or informal agreements in place with 12 tribes: Coeur d'Alene
Tribe of the Coeur d'Alene Reservation, Confederated Salish and
Kootenai Tribes of the Flathead Reservation, Confederated Tribes of the
Umatilla Indian Reservation, Fort Belknap Indian Community of the Fort
Belknap Reservation of Montana, Fort Peck Assiniboine and Sioux Tribes,
Gila River Indian Community of the Gila River Indian Reservation, Makah
Indian Tribe of the Makah Indian Reservation, Northern Cheyenne Tribe
of the Northern Cheyenne Indian Reservation, Oglala Sioux Tribe of the
Pine Ridge Reservation, Sisseton-Wahpeton Oyate of the Lake Traverse
Reservation, Standing Rock Sioux Tribe of North and South Dakota, and
the Crow Tribe.
Question 5. I have heard that the Department is focusing on only 40
tribes to conduct the Land Buy-Back Program even though there are 150
tribes with fractionated land shares. Are those claims accurate? If so,
why are you focusing on only 40 tribes?
Answer. It is not accurate that we are only focusing on the top 40
tribes. It is true that approximately 90 percent of the purchasable
fractional interests are located within 40 of the 150 locations with
purchasable fractional interests. As a result, as a practical matter,
the Department must focus a great deal of its initial efforts among
these highly fractionated locations. While the Program will be
implemented at locations that hold the highest amount of purchasable
fractional interests, the Department will also pursue implementation
activities with tribes at locations that represent the approximately
110 locations with the remaining 10 percent of the fractionated land.
Efforts are already underway at several less fractionated locations
including the Makah, Coeur d'Alene, Squaxin Island, Swinomish, Prairie
Band, Quapaw, and Lummi Reservations.
Question 6. Many tribes already implement their own fractionated
shares buyback programs with their own funds. These tribes are eligible
for the Cobell Settlement's Land Buy-Back program, but they have had to
wait in a long line to access settlement funds. Meanwhile, they have
been continuing to implement their own programs with their own funds.
Is the Department open to using the Trust Land Consolidation Fund for
reimbursing tribes for fractionated land purchases from November 2012,
the time the Cobell Settlement was officially final, to the time
Interior is able to make them an offer?
Answer. The Department is open to exploring every possible avenue
to efficient, timely, and cost effective purchases of fractionated
interests consistent with the requirements of the Settlement, the
Indian Land Consolidation Act, the Claims Resolution Act of 2010, and
all other applicable laws.
We have also made tribes not immediately slated for implementation
in the next year aware of the opportunities and tasks that they can
undergo right now to help prepare for the smooth transition when the
Program moves to their location.
Question 7. Some tribes have expressed concerns with the
Department's one-size-fits-all approach to implementing the Land Buy-
Back Program. How do you respond to that criticism and can you
understand the need for the Department to take a more tailored
approach?
Answer. The Department recognizes the uniqueness of each location
and tribal government, will continue to consult with tribes
individually, and will continue to evaluate tribal proposals
individually before initiating Buy-Back Program activities on the
respective reservations. The Program's Tribal Relations Advisors are
responsible for working closely with each tribe to understand its
concerns and unique goals. Each cooperative agreement between the
Program and individual tribes is unique in time, scope, and
responsibilities based on the expressed interests of the tribe.
Cooperative agreements present an opportunity for tribes and the
Program to move forward together by providing funding for tribes to
perform certain tasks, such as outreach to the landowners. While much
can be accomplished through these agreements, cooperative agreement
funding should be viewed as a short-term resource to achieve the much
larger and more valuable goal of land consolidation. Accordingly, the
Program must award agreements with an eye toward efficiency without
engaging in protracted cooperative agreement negotiations that detract
from the objective of providing individual landowners with offers of
fair market value for their fractionated interests in trust or
restricted land.
A Scope of Work Checklist has been developed in response to tribal
feedback requesting details about the work involved and templates to
streamline the process for entering into agreements. While this
checklist outlines baseline parameters and tasks, it does not preclude
tribes from proposing other pertinent tasks or activities given the
unique circumstances of their locations.
The Program has worked diligently to facilitate and expand tribal
involvement in land consolidation efforts, in part by hiring staff
dedicated to those goals. It also strives for a cooperative agreement
process that is as streamlined as possible, while still meeting all
Federal and Departmental regulations and requirements associated with
the awarding of any financial assistance. These requirements, such as
completing the mandatory SF-424 Application for Federal Financial
Assistance forms and complying with the applicable procurement
regulations and cost principles, apply to all financial assistance
awards, including grants, unless statutorily exempted.
Question 8. Chairman Berrey claims that the Department refused to
work with his tribe to purchase fractionated shares in a Superfund
site. Is this true? If so, why is this? Shouldn't the tribe be able to
use Settlement funds to consolidate shares on any of its lands it sees
fit?
Answer. The Department recently announced a list of locations where
it would implement the program and the Quapaw Tribe is included on that
list. The Department has in fact already sent offers to Quapaw that are
outside the Superfund site and is working to finalize those purchases.
Although fractionated shares within the Superfund site present complex
legal and practical challenges, the Department is working with the
Department of Justice on whether and how the Department can purchase
such parcels. The Department continues to keep the tribe apprised of
its efforts.
Question 9. Our tribal witnesses today universally support Indian
Self-Determination Act contracting over other cooperative agreements.
If Congress worked on a bill to permit tribes to enter into ISDEAA
contracts to administer the Buy-Back Program, would the Department
support it?
Answer. Please see page 1, answer 2 in response to the Chairman's
similar question.
Questions Submitted by Rep. Rauul Grijalva
Question 1. I understand there are five tribes that have
successfully entered into Cooperative Agreements with the Department
already, can you share with us how has the Department concluded the
Agreements with those five tribes?
Answer. The Department has entered into agreements with 10 tribes
(Coeur d'Alene Tribe of the Coeur d'Alene Reservation, Confederated
Salish and Kootenai Tribes of the Flathead Reservation, Confederated
Tribes of the Umatilla Indian Reservation, Fort Belknap Indian
Community of the Fort Belknap Reservation of Montana, Fort Peck
Assiniboine and Sioux Tribes, Northern Cheyenne Tribe of the Northern
Cheyenne Indian Reservation, Oglala Sioux Tribe of the Pine Ridge
Reservation, Sisseton-Wahpeton Oyate of the Lake Traverse Reservation,
Standing Rock Sioux Tribe of North and South Dakota, and Crow Tribe).
The Department also has a Memorandum of Agreement with Gila River
Indian Community of the Gila River Indian Reservation, and an informal
working agreement with Makah Indian Tribe of the Makah Indian
Reservation. The Department expects to finalize additional agreements
in the near future.
In order to negotiate an agreement, the Program's Tribal Relations
Advisors, in coordination with field staff, work closely with tribal
leadership to define a scope of work that will enable the tribe to
accomplish its goals for the Program. The time it can take to reach
each agreement is dependent on each tribe's procedures, which can vary
dramatically in terms of needed approvals. The tribal point of contact
and the Tribal Relations Advisors are in regular contact via email and
in-person meetings throughout the process.
Question 2. Let me turn your attention away from the land Buy-Back
Program and to the initial aim of the Cobell Settlement, can you give
me the latest update and progress on the Historical Trust
Administration established to compensate Individual Indian Money (IIM)
Account Holders?
Answer. The Cobell v. Salazar lawsuit ended in a settlement
agreement approved by Congress and by the U.S. District Court for the
District of Columbia, where the case was filed. Under the settlement
agreement, the Federal Government paid approximately $1.5 billion into
a settlement fund in a private bank. The Plaintiffs administer that
account under the supervision of the district court and have
responsibility for distributing the funds. The government does not
control the distribution of the settlement funds.
Pursuant to the Cobell Settlement Agreement as approved by Congress
and signed by the President on December 8, 2010 (Settlement Agreement),
specific notice and process provisions must be met before payments can
be made to the Trust Administration Class (TAC), also identified as
Stage 2 payments. Plaintiffs are required to identify all the TAC
members because that number will affect the calculation of the
settlement payments. See Settlement Agreement, at sec. E.4.a (``No
Stage 2 [TAC] payments shall be made until all Stage 2 Class Members
have been identified in accordance with this Agreement and their
respective pro rata interests have been calculated.'').
Plaintiffs hired (and the court approved) the Claims Administrator,
Garden City Group (GCG), to make the distribution. In late 2012, the
district court approved the first round of settlement payments to the
Historical Accounting Class (HAC), also identified as Stage 1 payments.
In the Stage 1 payments, each class member was paid $1,000. On January
23, 2014, the district court granted a motion by Plaintiffs to add
almost 13,000 members to the HAC.
Plaintiffs are now preparing to make the Stage 2 settlement
payments to members of the TAC. This part of the settlement calculation
is more complicated because the dollar amount paid to class members
will vary according to how much money was deposited in his or her
Individual Indian Money (IIM) account over time.
Trust Administration Class members who had no IIM account, or who
had no money deposited to an IIM account, will receive a minimum
payment. That minimum amount is based on: (1) the total number of class
members; and (2) the amount of money left in the settlement fund after
paying the Stage 1 settlement payments (plus the expenses of
administering the settlement). Plaintiffs cannot perform these
calculations for Stage 2 until they can identify the final number of
class members and reasonably estimate the amount of money available in
the settlement account after expenses.
Pursuant to the Settlement Agreement, a Special Master was
appointed to make determinations regarding the eligibility of
individuals to participate as members of the TAC. Before the TAC can be
finalized, the Special Master must resolve the appeals that ``self-
identifying'' putative TAC members made after they were denied
inclusion into the class by GCG. The Special Master is still
considering those appeals, and we have no timeframe for when the
appeals will be resolved. Once the universe of TAC members has been
identified, the calculation of TAC settlement payments can be
completed.
Question 3. I am also interested in the investment on the education
of Indian Youth side of the Cobell Settlement. I believe that $60
million of $1.9 billion dollars Trust Land Consolidation was
contributed to Indian Education Scholarship (aiming at improving access
to higher education for Indian youth), can you give us an update and
progress of this Scholarship Program? And how many Indian youth have
benefited from this fund already?
Answer. In accordance with the terms of the Settlement the
Department of the Interior will contribute up to $60 million to the
Scholarship Fund. Contributions to the Scholarship Fund are based upon
the formula outlined in the Settlement setting aside a certain amount
of funding based on the value of the fractionated interest sold. As the
offer sets for the individual reservations receiving offers are
completed, scholarship funds are transferred to the Indian Education
Scholarship Holding Fund (Holding Fund). At the end of each quarter,
the funds are transferred from the Holding Fund to the American Indian
College Fund. The first payment was made at the end of March 2014 and
the second at the end of June 2014. To date, the Department has
transferred more than $3.4 million to the American Indian College Fund.
Another transfer of approximately $1 million will occur in the near
future.
The American Indian College Fund, headquartered in Denver,
Colorado, administers the Scholarship Fund and provides students with
the resources to succeed in tribal colleges and technical and
vocational certifications as well as traditional undergraduate and
graduate programs. A five-member Board of Trustees is responsible for
the oversight and supervision of the College Fund's administration of
the Scholarship Fund and for developing and adopting a charter
outlining its role and responsibilities. The American Indian College
Fund is responsible for establishing the eligibility criteria for the
award of scholarships as well as for managing and administering the
Scholarship Fund. Twenty percent of the Fund's portfolio will be
directed to support graduate students through the American Indian
Graduate Center in Albuquerque, New Mexico. Benefits to Indian students
as a result of these scholarships are anticipated in the near future.
______
Mr. Young. Thank you, Mr. Roberts. A pleasure.
Mr. Finley.
STATEMENT OF MICHAEL O. FINLEY, CHAIRMAN, CONFEDERATED TRIBES
OF THE COLVILLE RESERVATION
Mr. Finley. Thank you. Good afternoon, Chairman Young. I
hope that you can extend appreciation to Chairman Hastings for
the wonderful introduction that he bestowed upon me this
afternoon.
My name is Michael Finley. I serve as Chairman of the
Confederated Tribes of the Colville Reservation in Northeast
Washington State. I also serve as first Vice President to the
National Congress of American Indians, and Chairman to the
Intertribal Monitoring Association of Indian Trust Funds. I
will be testifying today as Chairman of the Colville Tribes.
We are located, as I stated, in Northeast Washington State.
We encompass about 1.4 million acres, bigger than the State of
Delaware. The fractionation issues are large on Colville, and
we are on the list to be treated here with the Buy-Back
Program, hopefully shortly.
I want to go back to 4 years ago, Mr. Chairman, if I may,
and deviate a little bit from my testimony. Beginning 4 years
ago, I worked closely with Chairman Hastings and other members
of the party to try to rectify some of the problems that we
have seen in the Cobell Settlement as it was making its way
through Congress. And I think, Mr. Young, you were part of
those discussions at certain points.
There was a greater concern by tribal leaders about certain
things that we have seen, based on our own experiences, that we
thought meaningful and easy changes could be made to that
settlement as it was making its way through. And, much to our
surprise, I think the level of negativity, and the level of
reluctancy, not only by the plaintiffs, but by the
administration, I found it quite appalling, to be quite honest.
There were simple changes that we were asking for. And by
merely us asking questions, it seemed like we were being
ridiculed for just wanting to ask questions about the Cobell
Settlement.
I think many at the time just wanted to rush through it,
they didn't want us to ask questions. I think one of the
hearings that was had here in this very room where I testified,
I think there was pushback on that, for us to even have a
hearing. And all that the tribal leaders wanted was to be heard
at the time, because we had our own constituents who were
directly impacted by this who wanted to know how it was going
to affect them, and what it meant. And, to be quite honest, I
didn't have all the answers, as a tribal leader, as their
elected official. So when I went to ask questions and to
articulate some of the concerns that were coming directly from
my membership, it was met with some negative feedback.
And, you know, I have to share. You know, for a time after
that, I was cut off the White House mailing list, you know, for
mass emails. And I had to actually go to our lobbyist to get
them for a period of time. And at some point down the road I
was added again. That may or may not be directly correlated,
but I know, serving as Chairman to the ITMA board for a number
of years, we were asking questions.
We didn't want to kill the settlement, we were merely
asking whether or not changes could be made. They had received
funding for 10 years, straight up until that time. And when we
started asking those hard questions, all of a sudden that
funding went away. And that was funding that came from the
Federal Government. Again, it may or may not be correlated to
us asking questions, but judging the animosity that we were
feeling at the time, I venture to say that they are, or they
were. So, I just wanted to share that, as some of the
experiences that I received after asking questions on why
changes should be made to it before it had been approved
through Congress.
One of the major ones that I think we were able to get
through Doc Hastings and even on the Senate side was to merely
allow tribes to contract through 638, similar to a lot of the
things that we do today. You know, it is enacted legislation
that allows tribes to do a number of things, through contract
in 638, but that was denied. Instead, now we are stuck with
this cooperative agreement model that doesn't altogether work
to our benefit.
We want to have complete control over it. We want to allow
the money, the $1.9 billion, to earn interest. Today, right
now, the $1.9 billion is not earning interest. If it was done
through 638 contracting, the tribes who receive their
allocation, they could invest that money. But there is no
interest being earned right now. And I don't know if it
occurred to the people who drafted up the legislation then, or
the people pushing it, whether it be on the plaintiff side or
what have you, but it seems to me that is one thing that they
would have wanted to include, and I am sure they have a good
reason why.
Another concern that my tribal members continue to have
today, Mr. Chairman, is where is the second payment. They were
promised it at the end of last year. Many of them were counting
on it for Christmas, and it didn't come through. I know, as an
elected official, if I promise my members they are going to get
a payment before Christmas, that didn't come through, I
wouldn't be sitting here in front of you today. I can tell you
that. So, I think some answers need to be given to the tribes
and their individual allottees on that point there.
I know there are delays, and I am familiar with why there
are delays. Some say it is because the attorneys fees haven't
been finalized yet. But some say that is not exactly the truth.
But I think if this committee had any interest, they might want
to look into that to find out the reasons why.
So the interest itself, if we can get some remedy to that,
Mr. Chairman, I think that would go a long way to allow tribes
to extend that dollar a lot further than what it is going to go
today, because the $25.6 that is going to be allocated to
Colville to deal with the fractionation issue is just a drop in
the bucket to the complete problem that we have there.
And we, as a tribe, historically have been very aggressive
with our own buy-back purchase program, and we have done it
quite successfully. We are second to only one tribe in the
Pacific Northwest in total trust lands. And that is second to
the Warm Springs in Oregon.
The other part that I alluded to a little bit ago is we
want to have complete control over the Buy-Back Program. We
want to be a part of the outreach, the land research, the
evaluation, the acquisition parts of it. And especially the
acquisition, because we are dealing with our tribal members. We
know our tribal members better than anybody.
Mr. Young. Michael, you are about out of time.
Mr. Finley. OK. I will wrap it up there.
With that, I just want to thank you. And I appreciate the
opportunity to be here today. This is something I am very
passionate about, and I have a lot more I want to share, but a
lot of it is in my written testimony. So I appreciate the
opportunity, Mr. Chairman, thank you.
[The prepared statement of Mr. Finley follows:]
Prepared Statement of The Honorable Michael O. Finley, Chairman,
Confederated Tribes of the Colville Reservation
Good afternoon Chairman Young, Ranking Member Hanabusa, and members
of the subcommittee. My name is Michael Finley and I am the Chairman of
the Confederated Tribes of the Colville Reservation (``Colville
Tribes'' or the ``CCT''). I also serve as the First Vice President of
the National Congress of American Indians and the President of the
Intertribal Monitoring Association on Indian Trust. I appreciate the
opportunity to testify today in my capacity as Chairman of the Colville
Tribes on the implementation of the Cobell settlement and the
Department of the Interior's Land Buy-Back program.
My testimony will focus on how the Cobell settlement came to be
approved and how many of the issues that tribes have raised about the
Buy-Back program could have been resolved had the changes that tribal
leaders requested been incorporated into the settlement 4 years ago. I
also have three specific recommendations for the Department and the
subcommittee to consider to improve the Buy-Back program.
First, I would like to provide some background on my people and our
land. Although now considered a single Indian tribe, the Confederated
Tribes of the Colville Reservation is, as the name states, a
confederation of 12 aboriginal tribes and bands from all across the
plateau region of the Northwest and extending into Canada. The present-
day Colville Reservation encompasses approximately 1.4 million acres
and is located in north-central Washington State. The Colville Tribes
has nearly 9,500 enrolled members, making it one of the largest Indian
tribes in the Pacific Northwest. About half of the CCT's members live
on or near the Colville Reservation, which has more than 800,000 acres
of forest land.
indian tribes and organizations wanted the cobell settlement changed
When the Cobell settlement was still being considered by Congress 4
years ago, Indian tribes and tribal organizations requested certain
changes to the settlement. These included changes to the land
consolidation portion of the settlement and the Buy-Back program. The
Indian Land Consolidation Act allows tribes a role in administering the
Buy-Back program but it explicitly prohibits Indian tribes from
contracting or compacting the program under the authorities in the
Indian Self-Determination and Education Assistance Act (``ISDEAA'').
In an April 27, 2010, letter to tribal leaders, Senate Committee on
Indian Affairs Ranking Member John Barrasso sought input on five
changes to the Cobell settlement. The changes included capping pre-
settlement date attorneys' fees, expenses, and costs at $50 million;
limiting any ``incentive awards'' under the settlement to named
plaintiffs to actual, unreimbursed out-of-pocket expenses incurred by
that plaintiff; having the court-appoint a Special Master to select the
bank for holding the settlement funds; and setting aside $50 million
from the $1.412 billion settlement monies as a reserve fund to address
specific instances where the Special Master determined the formula
payment is insufficient or unfair. The final change Senator Barrasso
proposed in his letter would have required the Department to consult
with Indian tribes in planning, designing, and setting the priorities
for the land consolidation portion of the settlement and to allow
Indian tribes to implement the Buy-Back program under the ISDEAA.
The Administration and the Cobell class representatives vigorously
objected to the changes. It seemed that they both wanted to create the
perception that asking questions about the settlement--let alone
suggesting changes--meant you were in favor of ``killing'' the
settlement. To the contrary, the tribal leaders and organizations that
supported changing the settlement did so out of a desire to ensure
fairness and adequate protections for their constituents, Indian
beneficiaries generally, and tribal governments.
The Affiliated Tribes of Northwest Indians (``ATNI''), the Great
Plains Tribal Chairman's Association, and the National Congress of
Americans Indians all passed resolutions or otherwise expressed support
for the proposition that changes to the Cobell settlement must be made.
All three of these entities referenced contracting or compacting the
Buy-Back program under the ISDEAA in the changes they endorsed. Based
on this tribal support, then-Ranking Member Doc Hastings proposed an
amendment that would have incorporated the changes adopted in the ATNI
resolution and Senator Barrasso's April 27 letter. The House majority
at the time did not allow that amendment to be considered on the House
Floor.
Congress ultimately approved the settlement as part of the Claims
Resolution Act of 2010 and the foregoing is now a historical footnote.
As enacted into law, $1.9 billion was appropriated for the Buy-Back
program. It is ironic, however, that many of the issues and concerns
that tribes have expressed about the Buy-Back program over the past
year could have been addressed had the parties to the settlement
incorporated the changes that tribes requested.
For example, nearly every tribe is concerned about the prospect of
unspent funds appropriated for the Buy-Back program reverting back to
the U.S. Treasury after 10 years. Many tribes are similarly concerned
about the level of involvement they will be allowed to have in
implementing the program. These would not be issues today had the
Cobell settlement been amended 4 years ago to allow tribes to contract
or compact the program under the ISDEAA.
the colville tribes' implementation of the buy-back program
In the Buy-Back program's updated implementation plan, the CCT is
listed as number 15 out of the 40 tribes identified for initial
deployment of the program. The plan states that the CCT will have
approximately $25.6 million available to purchase fractionated
interests. For decades, the CCT has carried out its own land
consolidation program using tribal funds and fully expects to spend all
of this money. In 2013 alone, the CCT purchased $6.5 million of
fractionated interests from tribal members using proceeds from its $193
million trust mismanagement settlement with the United States. Demand
on the part of tribal members to sell their land to the CCT has always
been high and we expect this to continue to be the case going forward.
The CCT is currently verifying the accuracy of the trust land
ownership records on the Colville Reservation. On most reservations,
these records are not accurate. The CCT wants to ensure that any offers
to purchase Colville tribal members' fractionated interests will
accurately reflect the members' landholdings. The CCT is also
attempting to obtain certain information so that it can ascertain which
tracts of land it will prioritize for purchase. The CCT has expressed
its intent to the Department to enter into a cooperative agreement to
administer as much of the Buy-Back program as possible.
recommendations
Based on the work we have done so far, we offer the following
recommendations to improve the Buy-Back program:
(1) Allow Tribes to Invest their Allocated Buy-Back Funds
For the 10-year duration of the program, the $1.9 billion
appropriated for the Buy-Back program will sit in a non-interest
bearing account and gain no value over time. For whatever reason, it
did not occur to the architects of the settlement that the Department
should be able to invest the $1.9 billion and retain the earnings for
the program. The ISDEAA allows funds for contracted or compacted
programs to be transferred directly to tribes, at which point the
tribes can invest the funds themselves. Again, had the ISDEAA change
been incorporated, this would not be an issue.
It only makes sense to maximize the amount of funds available to
purchase fractionated interests by allowing this large appropriation to
earn value over time to increase the number of interests that can be
purchased. The 10-year clock has already begun ticking for the $1.9
billion principal to be spent. Every fiscal year that goes by without
this money being invested represents money and opportunity lost.
It would require congressional action for the Department to be able
to invest the Buy-Back appropriation and retain the earnings. Tribes,
however, can invest their allocated purchase ceiling funds if the funds
could be transferred directly to them and not held by the Department.
The details of such an arrangement could be included in an escrow
agreement or as part of a cooperative agreement. The CCT intends to
propose this as part of its cooperative agreement as a means of
maximizing the funds available to consolidate its land base.
(2) Make Land Data More Readily Available at No-Cost to Tribes
The BIA's system for recording title to Indian trust lands is
called the Trust Asset and Accounting Management System, or ``TAAMS,''
as it is commonly referred. The TAAMS system was developed by CGI
Federal, the same contractor that developed the healthcare.gov website
that received widespread media attention last fall.
The CCT understands that through some arrangement, CGI Federal
retains an ownership interest in the TAAMS system. While a small number
of tribes like the CCT have access to the TAAMS system, the system is
not designed to make extrapolation of data user friendly. CGI Federal
has been separately marketing itself to Indian tribes as an entity that
can obtain data from the TAAMS system. The CCT will likely have to pay
CGI Federal more than $20,000 to obtain the information and data that
it needs to implement the Buy-Back program.
This is an absurd result and should never have been allowed to
happen in the first instance. We encourage the subcommittee to explore
how the arrangement between the Department and CGI Federal began and
what, if anything, can be done right now to ensure that tribes do not
have to pay CGI Federal or other third parties for data that should be
readily available.
(3) Allow Tribes to Perform All Land Acquisition Functions
The Buy-Back program is divided into four phases: outreach, land
research, valuation, and acquisition. It is imperative that those
tribes with the capacity be allowed to perform all phases, but
especially the acquisition phase. Tribes are in the best position to
consummate land sales and issue deeds to close out the transactions.
Tribal control over the acquisition phase will also allow tribes to
exchange tribal trust land for fractionated interests. If individuals
are reluctant to sell because they want to maintain an ownership
interest in Indian land, this type of an exchange would allow for those
individuals' interests to be consolidated while giving them an interest
in tribal land in return. The key to these activities is tribal control
over the acquisition function.
I appreciate the subcommittee's consideration of this testimony. We
look forward to working with the subcommittee and the Department on
these and other issues. At this time I would be happy to answer any
questions the members of the subcommittee may have.
______
Questions Submitted for the Record to Michael O. Finley, Chairman,
Confederated Tribes of the Colville Reservation
Question Submitted by Chairman Don Young
Question 1. In your statement you mentioned that there were
consequences for those who advocated for changes to the Cobell
Settlement Agreement. When the Settlement Agreement was still pending 4
years ago, what were tribal leaders saying about efforts to change it?
Answer. Many tribal leaders were privately supportive of efforts to
change the settlement but for various reasons were not in a position to
make their views publicly known. At the time, the Administration was
coordinating a number of meetings on other initiatives of interest to
Indian country. Some tribal leaders expressed concern that publicly
advocating for changes to the Cobell settlement might lead to them not
being invited to participate in these unrelated initiatives.
Question Submitted by Ranking Member Colleen Hanabusa
Question 1. You say that you would like to administer the Buy-Back
Program through self-determination contracts. What is the difference
between self-determination contracts and cooperative agreements through
which you may now administer the Buy-Back Program and why would you
prefer one over the other?
Answer. Self-determination contracts explicitly allow funds for
contracted programs to be transferred to tribes at the tribes' request.
This essentially means that tribes have custody and control of the
funds and could incorporate the funds into the tribes' own investment
plans or otherwise earn value over time with the money.
As ratified by Congress, the Cobell settlement did not contain any
authority for the Department of the Interior to invest the
appropriation for the Buy-Back program or to retain the proceeds of
such an investment. Currently, this $1.9 billion appropriation is in a
non-interest bearing account and will be for the life of the program.
We prefer the self-determination contract model because it would allow
tribes to maximize the number of interests by investing their allocated
Buy-Back program funds.
Question Submitted by Rep. Rauul Grijalva
Question 1. In your statement you propose a few recommendations for
the Buy-Back program and one of them is to allow tribes to perform all
land acquisition functions. I am interested to know how could we be
assured that this one-sided process would be done in [a] transparent
manner? And I am also curious to know too, how do you define ``tribes
with the capacity'' to be allowed to perform land acquisition since
every tribe is so different?
Answer. The Colville Tribes is interested in having control of the
acquisition function because we want to be able to generate, or re-
generate, as the case may be, offer packets to landowners when we
conduct outreach meetings to prospective sellers. Often, when our
tribal members receive official government correspondence in the mail
they set it aside until someone more knowledgeable can explain what the
letter is and how it may affect them. We anticipate significant
interest in our outreach presentations and want to be able to give
landowners the appropriate paperwork onsite if they lost or misplaced
their original offer packet.
Ensuring transparency in the acquisition process would, for
practical purposes, be self-executing since our control of the function
would result in the dissemination of more information in a more
convenient manner.
Carrying out the acquisition function involves having access to the
TAAMS system and knowledge of BIA realty operations. One measure of
tribal capacity to carry out this function could be whether the tribe
has contracted either BIA realty functions or Land Title Records
Offices. Both of these functions require the tribe in question to have
significant capacity.
______
Mr. Young. I hope you take the time to talk to Doc Hastings
and myself. Because I was unaware, and shows how ignorant I can
be, which is quite evident, I didn't know that fund was in a
non-interest bearing account, and that was done by the
administration. I don't understand that. This is a settlement.
You ought to be making money off of it. So we may take care of
that.
Mr. John Berrey.
STATEMENT OF JOHN BERREY, CHAIRMAN, QUAPAW TRIBE OF OKLAHOMA
Mr. Berrey. Thank you very much for inviting me here today,
Mr. Chairman. I would like to thank Congressman Daines and
Congressman Grijalva for participating, and also Markwayne
Mullin, who is my congressman. I think he will be here shortly.
I echo a lot of the same concerns as my friend, Mike
Finley. The Quapaw Tribe of Oklahoma, which I am the chairman,
has been involved in tribal land purchases for nearly 10 years.
I am in my 14th year as chairman of the tribe. We are a 638
tribe, which we compact or contract all the functions of the
Department of the Interior, except for the IIM account
management.
Several of my tribal members opted out of the Cobell
litigation, because they didn't believe it was the proper case
for their claims of years and years of heavy mining done on our
land that has left some of the land in bad condition.
But the reason I am here today is I really, we believe in
the spirit of this settlement and this Buy-Back Program. We
believe in the tribe's ability to make economies out of land
use when they become the single owner and single decisionmaker
that allows us to make money. And that is the business that I
am in. I am into making our land useful and our opportunities,
so I can provide services to my tribal members. That is what I
do every day. And we buy land every day.
But our frustration is we don't seem to be able to get
through the door of being part of this Buy-Back Program. We
were the first tribe to provide a cooperative agreement to the
Department of the Interior, and we still today don't have any
kind of agreement or way forward to be part of this program. I
have a number of tribal members that are ready, willing, and
able to sell their land. They want to sell it. I have given
them offers. I have the appraisals, I have the surveys. I have
all the work done. We are not even asking for the
administrative costs. We are just asking for the money to pay
for the land within the spirit of the settlement.
We have a very sophisticated realty department. We know all
of our members. We know where all the land is. And I am in
constant communication with all my tribal members. And they ask
me every day when are they going to get to sell their land,
because they need the money. It is like the members at
Colville. You know, not all my tribal members have a lot of
cash, and they see this as an opportunity to better their
families, and maybe even buy some food or electricity.
So, it just dumbfounds us that we are prepared, we provided
the names, I mean we provided everything to the Department, but
yet, to this day, we are not part of the program. We think it
is a great program, it is going to allow for economies for the
tribe, which will benefit my tribal members. It is going to
reduce the burden of the management of the Department of the
Interior on all these fractionated interests, which, hopefully,
will allow the Department of the Interior to have more
resources to do the things that they are there to do, and they
can work with us further and have the opportunity with less
fractional problems. And we just see this as a win-win for
everyone.
Our fear is we are 4 years into this thing. We are knocking
on the door every day, saying, ``We want to be part of this.''
We have done all the legwork, we have done the outreach. We
have the willing sellers, but they are not interested in
working with the Quapaw Tribe, and we don't know why.
We have, in our part of Oklahoma, we have the most land
base, the most fractionated tracks, and we are on the list,
even though we may be low down on the list, we are still on
that list. And we are very frustrated. And we think we can help
the Department with some success. If they would just come to
the table and meet with me, we could start selling property and
purchasing property today, and we could move them closer to an
era of less fractional problems of the Quapaw.
So, with that, I would just leave myself. We are trying to
become the largest bison herd in Northeast Oklahoma. We are
about to spend nearly a million dollars on registered Black
Angus cattle, so we could be the largest beef producer in
Northeast Oklahoma. But we need more land. And the way that we
want to partially get there is through this Buy-Back Program,
and we would really like to be part of it, so we could build
economies, and I could provide better benefits for my tribe.
So, if you have any questions for me at any time, I will be
happy to answer them, and I appreciate the opportunity, sir.
[The prepared statement of Mr. Berrey follows:]
Prepared Statement of The Honorable John Berrey, Chairman, Quapaw Tribe
of Oklahoma (O-Gah-Pah)
introduction
Good afternoon Chairman Young, Ranking Member Hanabusa, my own
Congressman Markwayne Mullin, and honorable members of the subcommittee
on Indian and Alaska Native Affairs.
My name is John Berrey and I am the Chairman of the Quapaw Tribe of
Oklahoma (O-Gah-Pah, hereafter Tribe), located in far northeast
Oklahoma.
I very much appreciate the invitation to appear before you today to
discuss the Land Buy-Back Program for Tribal Nations (the Buy-Back
Program), the $1.9 billion initiative to help re-consolidate
fractionated Indian lands across the country.
As you know, this initiative was included in the Cobell v. Salazar
settlement in ratified by Congress in 2010.
I want to thank you for holding this hearing: it is timely and
aptly named because I believe there are real opportunities being missed
and, as we all know, this program is probably our last, best shot to
re-consolidate Indian lands and make them economically viable again.
major objectives of the buy-back program
The major objectives of the Buy-Back Program are to:
1. Allow interested tribal members to receive payments for
voluntarily selling their land at fair market value;
2. Reduce the number of fractionated interests in trust or
restricted lands;
3. Structure acquisitions to maximize the number of tracts in which
tribes gain a controlling ownership interest to unlock land
for beneficial use or conservation, as determined by the
applicable tribe; and
4. Deploy tribal resources such as realty and land management staff
and officials to minimize the burdens to the Department of
the Interior (the Department).
re-consolidating its land base a top priority of the quapaw tribe
An issue of major importance to the tribe and its members is the
consolidation in the tribe of the many fractionated interests of our
Indian lands. Over the past decade, the tribe has developed and
implemented one of the most sophisticated and successful Indian land
consolidation programs in the country.
Since the Buy-Back Program was enacted, the tribe has been working
with department officials in its pursuit of a formal relationship from
which to use Buy-Back Program funds to reduce fractionation and restore
the tribe's land base. We are somewhat frustrated, because, despite the
success we have in the area of Indian land consolidation, to date we
have not been allowed to participate in the program.
In early 2013, the tribe submitted to the Department a proposed
Cooperative Agreement outlining how the tribe's participation in the
Buy-Back Program would benefit our tribal members and also demonstrate
that significant land consolidation can occur if carried out properly.
Various officials at the Department were appreciative for the tribe's
submissions, and even commented that they had aided the Department in
preparing additional templates for the program.
After several meetings and conversations with Department staff
regarding the evolving contours and requirements of this historic land
consolidation program, in March 2013, the tribe submitted a revised
Cooperative Agreement reflecting our understanding of what factors and
elements the Department would view favorably, leading hopefully to our
involvement in the Buy-Back Program.
The Department's response was not favorable. A Buy-Back Program
official acknowledged the tribe's strong desire to participate in the
Program, but went on to note that
``if the tribe is still interested in pursuing a cooperative
agreement, I encourage the tribe to submit a cooperative
agreement application focusing on non-Superfund fractionated
tracts and in light of the cooperative agreement guidelines
published since March 2013.''
The Department's position is not only disappointing; it shows a
fundamental misunderstanding of the Tar Creek site and the fact that
large tracts of fractionated land within that site are not contaminated
and are, in fact, being used for agricultural and other purposes. It
has also caused us to question the overall openness and fairness of the
program, as it is currently being structured.
past efforts and tribal acquisition of individual parcels
The only rationale the tribe has been provided for being excluded
from the Buy Back Program is that the Department does not want it to
buy fractionated land within the Tar Creek Superfund site (the
Superfund site).
We do not know the basis for this position and, in fact, have tried
without success to get the Department to fully articulate its position.
But it does not appear to be the true reason.
As explained below, the fact is the Department routinely approves
gift conveyances from restricted owner to restricted owner within the
Superfund site, and the Department also regularly approves probate
conveyances to the tribe from the estates of tribal members relative to
restricted and trust parcels within the Superfund site.
For many years, the tribe has sought to use the Indian Land
Consolidation Act to acquire title to fractional interests in Indian
land both within and outside the boundaries of the Superfund site. The
tribe has been successful in acquiring various parcels outside this
site, but there currently are dozens of applications by tribal members
who have already expressed their keen interest in selling their parcels
at the site to the tribe.
In its proposed Cooperative Agreement, the tribe has offered to
deploy its realty and other land-related offices and staff, made an
extremely cost-effective proposal to use Buy-Back Program funds to
consolidate fractional interests, and has offered to acquire these
interests without asking for administrative funding authorized by
Congress in 2010.
There is no provision in law, or for that matter in the
Department's updated implementation program, that would prevent these
transactions from being consummated.
The tribe obtains conveyances of fractional interests in Indian
land within the site through the probating of the estates of tribal
members. As you know, the probate process is slow and does not keep
pace with land fractionation. Further, and despite suggestions from the
Department that the tribe look to non-Superfund site parcels in order
to participate in the Buy-Back Program, the reality is that tribal
members regularly obtain fractional interests in trust and restricted
land within the Superfund site. This belies the Department's position
that these in-site parcels cannot be consolidated in the tribe.
Last, the tribe has met repeatedly with Bureau of Indian Affairs
officials and expressed the tribe's willingness to explore the
possibility of mutually acceptable language or other approaches to
ensure the Federal Government incurs no new liability by virtue of
these conveyances for purposes of land consolidation. These efforts
have also failed.
I am not here to indict anyone, and I really have no information
other than what I have mentioned about why the Department seems
disinterested in working with the Quapaw Tribe through a cooperative
agreement. I do want to point out that realty matters can be very
difficult for an Indian tribe to administer if the tribe has not had
extensive experience in the area.
Tribes such as the Quapaw Tribe, with highly successful land
consolidation programs, can serve as models to other tribes. The
Department should not let inclusion in the Buy-Back Program be guided
by illegitimate reasons. The program should be open, and tribes,
particularly those with a demonstrated record of accomplishments in the
land consolidation area, should be allowed to participate.
In summary, in our experience, the Department seems to have a
private agenda concerning what tribes will be permitted to participate
in the Buy-Back Program. In our case, the Department is, for whatever
reason, showing a lack of interest in working with a tribe that has
been extremely successful in this area, and that could serve as a model
for efficiently consolidating fractional interests in Indian land.
recommendations to ensure the buy-back program succeeds
As of January 2014, the Department has agreed to Cooperative
Agreements with five (5) Indian tribes: the Confederated Salish and
Kootenai Tribes, the Northern Cheyenne Tribe, the Oglala Sioux Tribe,
the Makah Indian Reservation, and the Rosebud Sioux Reservation.
I am happy for these tribes and am hopeful the Buy-Back Program is
a success for them. At the same time, there are hundreds of tribes
suffering from a fractionated land base and more must be done
immediately to ensure this once-in-a-lifetime program works for the
benefit of Indian people.
As you know, time is of the essence because authority for the Trust
Land Consolidation Fund expires on December 8, 2020--10 years after the
date of final settlement of the Claims Resolution Act.
The National Congress of American Indians (NCAI) has approved a
resolution urging changes be made to the land consolidation program
and, most recently, has issued a letter to Interior Secretary Jewell
urging the Buy-Back Program be opened up to additional tribes in an
expeditious manner.
I have included copies of NCAI's resolution and NCAI President
Cladoosby's letter to Secretary Jewell to this prepared statement.
As the Department moves forward in implementing the Buy-Back
Program, the Congress should re-consider two key issues in order to
achieve the maximum value for the $1.9 billion it has authorized:
1. The use of contracts and compacts under the Indian Self-
Determination and Education Assistance Act to carry out the Program.
These contracts are widely used in Indian Country, tribes have a
thorough familiarity with them, and Buy-Back funding can be funneled to
tribal communities through them.
As the subcommittee knows, the use of ISDEAA contracts and compacts
was hotly debated by the Department and the Congress, with the
department insisting they not be included in the final version of the
Cobell settlement.
During post-enactment consultation sessions, tribes again raised
the idea of using ISDEAA contracts and this suggestion was similarly
rejected.
2. Congress should authorize the Department to earn interest on the
$1.9 billion fund. Currently, the Department is prohibited from seeking
interest on this money and, in the process, is losing a valuable
opportunity to augment the funding level contained in the original
settlement.
3. Congress should encourage the Department to re-evaluate its
criteria for offering cooperative agreements to tribes, and should
ensure that decisions are not being made arbitrarily.
The program should be open, especially to tribes such as ours that
have made viable, cost-effective proposals, and that have a proven
track record of actually accomplishing the goals of Indian land
consolidation. In this regard, I encourage Congress to continue its
oversight of the Department's administration of this important program.
conclusion
Given the opportunity, my tribe will work with the department to
acquire and consolidate fractional interests owned by tribal members.
In the process, we can demonstrate to like-minded tribes that the
goals of the Buy-Back Program can be accomplished if the department and
tribes work collaboratively and effectively.
Thank you for your consideration of my testimony. I am happy to
answer any questions you might have.
Attachments
NCAI Resolution #PDX-11-041 (2011)
NCAI Letter to Secretary Jewell (December 18, 2013)
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Mr. Young. Thank you. Thank you very much. Questions will
come when everybody testifies.
Mr. Burke.
STATEMENT OF GARY BURKE, CHAIRMAN, CONFEDERATED TRIBES OF THE
UMATILLA INDIAN RESERVATION
Mr. Burke. Good afternoon, Chairman Young, Ranking Member
Hanabusa, and members of the subcommittee. My name is Gary
Burke. I am the Chairman of the Confederated Tribes of the
Umatilla Indian Reservation. Joining me today is Bill Tovey,
whose department has taken lead on the participation of the
Land Buy-Back Program. I appreciate the opportunity to provide
testimony on implementation of the Land Buy-Back Program under
the Cobell Settlement, which we view as a historic opportunity
to restore CTUIR ownership of reservation lands, as intended in
our treaty of 1855.
The Land Buy-Back Program has determined that the Umatilla
Reservation is the 28th most fractionated reservation in the
country. Our reservation is on the list because of the Umatilla
Allotment Act, passed in 1885, which resulted in the sale of a
third of our reservation to non-Indian settlers, the allotment
of the remainder of the reservation to tribal members, the loss
of 50 percent of the allotted lands to non-Indian ownership,
due to probate sale, tax foreclosures. Fifty percent of the
allotment still is in trust or owned by Indians who are not
enrolled in our tribe.
By the 1970s my tribe, a minority of land owners on the
reservation that our treaty has established for our exclusive
use. For the past three decades, the CTUIR has prioritized and
dedicated considerable resources to the restoration of our
reservation land base. We have allocated a portion of our
tribal revenues to re-acquire reservation lands, enacted an
inheritance code to prevent the loss of trust lands upon the
death of an Indian land owner, establish a land trust, tribal
land program to manage the re-acquisitions of the reservation
lands, compacted the realty and appraisal functions of the BIA.
The experience of our tribal land program can be measured
by the success. We have acquired 42,000 acres in the 740 land
transactions at a cost of some $23 million. Most importantly,
our tribal staff know our reservation lands and land owners,
which will be essential to the success of the Land Buy-Back
Program on our reservation. As described in more detail in our
written testimony, we urge Land Buy-Back Program to address
these problem areas.
Land buy-back funds should be made available to reimburse
tribes for the purchase of fractionated trust allotment under
tribal probate or inheritance codes. The Land Buy-Back Program
needs to provide adequate contract support, cost, and tribal
grants for the implementation of the program. The Land Buy-Back
Program needs to provide information to affected tribes on what
has worked and what has not in the implementation of the
program on the other reservations.
The Department of the Interior needs to commit to
personnel, specifically appraisers, reviewers, to ensure the
timely implementation of the Land Buy-Back Program. We believe
that tribal involvement is critical in the success of the Land
Buy-Back Program. We have developed a statement of work which
would involve our tribe in all phases of the program. We
believe that our staff, given the right experience and
knowledge, can effectively implement the Land Buy-Back Program
on our reservation.
CTUIR is prepared and more than willing to spend additional
land buy-back funds if we were to become available within the
10-year period. The Land Buy-Back Program is a small, but
important step by the United States to honor our treaty, and to
reverse the failed allotment policy of the 18th-19th century.
Consistent with the current Federal land policy, Indian
policy, the successful implementation of the Land Buy-Back
Program can improve travel, self-determination, self-
sufficiency, by reducing fractionated ownership of reservation
lands, and thereby increasing the ability of tribes to make
beneficial use of the lands.
Once again, I appreciate the opportunity to provide our
perspectives on the Land Buy-Back Program. We look forward to
working with you to ensure the success of the Land Buy-Back
Program on our reservation.
With that said, I want to thank everyone for listening to
the testimony. And, most of all, Elouise Cobell, on her intent
of what she set out to do. Thank you.
[The prepared statement of Mr. Burke follows:]
Prepared Statement of Gary Burke, Chairman, Confederated Tribes of the
Umatilla Indian Reservation
Good Afternoon Chairman Young, Ranking Member Hanabusa, and members
of the subcommittee, my name is Gary Burke and I am Chairman of the
Board of Trustees, the governing body of the Confederated Tribes of the
Umatilla Indian Reservation (CTUIR). I appreciate the opportunity to
provide testimony on the implementation of the Land Buy-Back Program
under the Cobell settlement. My tribe views the Land Buy-Back Program
as an historic opportunity to restore CTUIR ownership of Reservation
lands as intended in our Treaty of 1855.
Pursuant to Article I of our Treaty, the CTUIR ceded 6.4 million
acres of its aboriginal lands in exchange for the Umatilla Indian
Reservation, which was set aside for the ``exclusive use'' for the
Cayuse, Umatilla and Walla Walla tribes. However, due to failed Federal
policies of the past, we lost over two-thirds of our Reservation land
base. The CTUIR has long prioritized the restoration of the Reservation
land base set aside in our Treaty, and the Land Buy-Back Program will
play a critical role in accomplishing that important goal.
The loss of our Reservation land base occurred shortly after our
Treaty was ratified in 1859. In 1882, Congress severed 640 acres from
the western end of the Reservation to facilitate the growth of the city
of Pendleton. In 1885, 2 years before the General Allotment Act became
law, Congress passed the Umatilla Allotment Act which allotted and
diminished the Reservation established under our Treaty. The 1885 law
diminished the Reservation by opening up some 90,000 acres of
Reservation land for sale to settlers. The allotment of our Reservation
under the 1885 law resulted in the loss of approximately one-half of
tribal lands within the diminished Reservation to non-Indian ownership
due to probate, sale and tax foreclosure. When we celebrated the 100th
anniversary of our Treaty in 1955, the Reservation established by our
Treaty had been largely lost to non-Indian ownership. Of the original
Treaty Reservation of 250,000 acres, we had lost one-third of our
Reservation due to diminishment and another third to non-Indian
acquisition of allotments issued to tribal members.
The allotment of our Reservation has also resulted in fractionated
ownership of the individual allotments issued to tribal members.
According to the Updated Implementation Plan for the Land Buy-Back
Program, the Umatilla Indian Reservation is the 28th most fractionated
Reservation, with 1,015 fractionated allotments totaling 66,945 acres
which contain 18,828 purchasable fractional interests. Fractionated
ownership of these lands makes use and management of these lands
difficult, and in many cases impossible, because of the large number of
landowners and the difficulty in contacting and securing the consent of
those landowners for a particular use. We have also learned that a
large percentage of the owners of these fractionated interests are
Indians that are not enrolled in our tribe. For example, when we
renegotiated a pipeline right-of-way (ROW) that traversed some 13 miles
through our Reservation in the late 1990s, approximately two-thirds of
the owners of the allotments burdened by the ROW were Indians enrolled
in tribes other than the CTUIR.
For the past three decades, the CTUIR has dedicated considerable
resources to the restoration of our Reservation land base. We have
enacted laws, dedicated tribal revenues and developed tribal programs
to reacquire Reservation lands within our Treaty Reservation boundary
and to prevent the loss of tribal trust lands upon the death of Indian
landowners.
The Land Buy-Back Program provides a means to restore tribal
ownership of fractionated interests in trust allotments. Our tribe has
prioritized 400 fractionated allotments, out of a total of
approximately 1,300 allotments on the Reservation, for acquisition
under the Land Buy-Back Program. These prioritized allotments are
heavily fractionated, have a large percentage of ownership by Indians
enrolled in tribes outside of our own, or otherwise have important
cultural, natural resource or economic and community development
significance.
The CTUIR is well prepared to participate in the implementation of
the Land Buy-Back Program on our Reservation. The experience and
expertise of our Tribal Land Program, which had led the tribal effort
to restore our Reservation land base over the past 30 years, is
critical to the success of each phase of the Land Buy-Back Program. The
success of our Tribal Land Program can be quantified: we have acquired
42,000 acres in 740 land transactions at a cost of some $23 million.
The CTUIR has also compacted the realty and appraisal functions from
the BIA. Our Tribal GIS staff have extensively mapped our Reservation,
including Reservation allotments. Most importantly, our tribal staff
know and have dealt with our Reservation lands and their landowners,
which will be essential to the success of the Land Buy-Back Program on
our Reservation.
The CTUIR is anxious to have the Land Buy-Back Program implemented
on our Reservation. We have been working diligently for more than a
year to develop a plan for tribal participation in the outreach, land
research, land valuation and acquisition phases of the Land Buy-Back
Program. For the past 6 months, we have been negotiating for a
Cooperative Agreement with the Land Buy-Back Program that defines and
funds the work we would perform to implement the Program. While we are
frustrated at how slow the process has been, we believe we are getting
close to finalizing our Cooperative Agreement.
Based on our experience, we urge the Land Buy-Back Program to
address these problem areas:
1. We believe that Land Buy-Back funds should be made available to
reimburse tribes for the purchase of fractionated trust allotments
under tribal probate or inheritance codes. Under our CTUIR Inheritance
Code, we have the right to prevent the transfer of trust lands by will
or intestacy to a non-member of the CTUIR upon the payment of fair
market value. We have requested that the Land Buy-Back Program
reimburse our acquisitions under this Code dating back to the Federal
court approval of the Cobell settlement in November 2012. To date, the
Land Buy-Back Program has not agreed to this request. The CTUIR
believes our request should be granted because these probate
acquisitions achieve the objectives of the Land Buy-Back Program by
acquiring fractionated interest in trust lands and transferring
ownership to the tribe at fair market value as determined by the
Department of Interior.
2. The Land Buy-Back Program needs to ensure that it provides
adequate contract support costs as a component of the grants to tribes
for the implementation of the Program. As the subcommittee is aware,
this has been an issue that the U.S. Supreme Court has addressed in the
Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181 (2012), holding that
the United States had a contractual obligation to pay full contract
support costs under the Indian Self-Determination and Educational
Assistance Act, 25 U.S.C. Sec. 450 et seq. To date, the Land Buy-Back
Program has taken the position that it can only pay contract support
costs in the amount of 15 percent of the tribal grant under a
Cooperative Agreement. We have also been informed that we will not
receive any contract support funding for grant funds that are used to
pay subcontractors or to acquire equipment. While we are mindful of,
and support, the Cobell settlement 15 percent cap on administrative
costs under the Land Buy-Back Program, the Land Buy-Back Program
position on paying tribal administrative costs to implement the Land
Buy-Back Program is too restrictive. We have proposed, and to date, the
Land Buy-Back Program has not accepted, that the tribe receive
administrative costs in the amount of 15 percent of its total grant. We
believe our proposal would provide tribes sufficient contract support
costs funding to carry out Land Buy-Back Program functions and be
consistent with the 15 percent administrative expenses cap contained in
the Cobell settlement.
3. The Land Buy-Back Program needs to provide more information to
affected tribes on the roll-out of the Program in Indian Country. It
would be helpful to us to learn about what has worked, what has
underperformed and what has failed in the implementation of the Land
Buy-Back Program on other reservations. It's equally important that we
receive information about the rate of acceptance of offers to purchase
made to Indian landowners under the Land Buy-Back Program. The CTUIR,
and other participating tribes have a shared interest with the Land
Buy-Back Program in the success of the Program. The CTUIR wants to
learn from, and benefit by, the successes (and the failures) of other
tribes participating in the Land Buy-Back Program.
4. The Department of Interior needs to commit the necessary
personnel to ensure the timely implementation of the Land Buy-Back
Program. We have particular concerns regarding the time associated with
the review and approval of our appraisals of the fractionated trust
allotments that we have prioritized for purchase under the Land Buy-
Back Program. These reviews will be conducted by the Office of
Appraisal Services (OAS). The CTUIR has proposed to conduct appraisals
and have offer letters sent out on the 400 allotments we have
prioritized for purchase in three waves: the first and second wave will
involve 150 allotments and the third wave will be of 100 allotments.
The timing for our outreach efforts, the appraisal of the allotments
and the schedule for mailing out offers are dependent upon a timely
review and approval of the appraisals by OAS.
Since Congressional approval of the Cobell settlement in the Claims
Resolution Act in 2010, the CTUIR has focused on the Land Buy-Back
Program to consolidate tribal ownership of heavily fractionated
allotments and to restore CTUIR ownership to those allotments. Our
staff have worked diligently with Interior Department and Land Buy-Back
Program officials to prepare for our participation in the
implementation of the Land Buy-Back Program on our Reservation. Once we
finalize our Cooperative Agreement and the associated Scope of Work, we
are prepared to begin outreach to Indian landowners, to appraise the
prioritized allotments and to assist in the acquisition of these
fractionated interests. With increased tribal ownership of these
allotments, and the associated decrease in fractionated ownership, we
will be better able to use our Reservation land base to meet the needs
of our tribal members. The United States will also benefit under the
Land Buy-Back Program due to the reduction in costs associated with the
probate of these fractionated interests and the management of IIM
accounts that hold the income generated on these trust allotments.
Most importantly, the Land Buy-Back Program is a small but
important step by the United States to honor our Treaty and to reverse
the failed allotment policy of the 19th century. Consistent with
current Federal Indian policy, the successful implementation of the
Land Buy-Back Program can improve tribal self-determination and self-
sufficiency by reducing fractionated ownership of Reservation lands and
thereby increasing the ability of tribes to make beneficial use of
those lands.
This completes my testimony. Once again, on behalf of the CTUIR, I
appreciate the opportunity to provide our perspectives on the Land Buy-
Back Program. We look forward to working with the subcommittee and the
Land Buy-Back Program to ensure its success on our Reservation.
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Questions Submitted for the Record by Ranking Member Colleen Hanabusa
to Chairman Gary Burke, Confederated Tribes of the Umatilla Indian
Reservation (CTUIR)
Question 1. What are the day-to-day effects of having such a
fractionated reservation?
Answer. As mentioned in my testimony, the 1885 Umatilla Allotment
Act not only diminished our Reservation, it allotted what remained of
the Reservation to individual tribal members, leaving very little land
in tribal trust status. Over three-quarters of the trust lands on our
Reservation are allotted trust lands, and the large majority of those
allotments are heavily fractionated. Again, as pointed out in my
testimony, our Reservation has 1,015 fractionated allotments (out of a
total of 1,300 allotments on the Reservation) totaling 66,945 acres
which contain 18,828 fractional interests (i.e., approximately 18
fractional interests per allotment).
The fractionalized ownership of trust allotments on our Reservation
affects the day-to-day management and use of these allotted lands for
the tribe, the Indian landowners and private businesses doing business
in Indian Country. The challenges and costs caused by this
fractionalized ownership are too numerous to count, but set forth below
is a representative sample:
(a) Land Use. Our Reservation has 1,015 allotments that are
fractionated with over 23 percent having greater than 20 landowners.
These allotments include productive farm, timber and grazing lands
that, in many cases, cannot be used because of the sheer number of
landowners and the cost, difficulty and time associated with securing
landowner consent.
(b) Probate. The CTUIR has adopted an Inheritance Code under the
Indian Land Consolidation Act that permits (in most cases) the tribe to
prevent the transfer of allotted trust lands to non-Indians and non-
CTUIR members upon the payment of fair market value to the heirs. Upon
the death of an Indian landowner, the probate process has become very
expensive and time consuming due to the large number of fractionated
interests in trust allotments. This expense is not only borne by the
CTUIR but also by the Department of Interior's Bureau of Indian Affairs
(BIA) and the Office of Hearings and Appeals (OHA).
Complicating this matter further is the recent decision by OHA
to close its office within the Pacific Northwest BIA Regional Office in
Portland and to have CTUIR probates handled by an Administrative Law
Judge (ALJ) in the Sacramento office. The decision to close the
Portland OHA office was done without any tribal consultation. There is
a clear need for an OHA office in Portland because of the Inheritance
Codes that either Congress has enacted or the Department of Interior
has approved for the Columbia River Treaty Tribes, which includes the
CTUIR. Each of these tribal codes are similar and the tribes and tribal
members would benefit by having an ALJ located in Portland who became
familiar with our codes so that they could be implemented with some
consistency.
(c) Farm Leasing. The CTUIR has compacted the BIA realty functions
and we manage the leases of allotted farmlands. Annually, there are
renewals of close to 100 plus farm leases and over 120 USDA/FSA
contracts. Over 4,000 lease and contract payments are distributed to
the fractionated land owners. The workload has increased for the tribal
realty staff, as well as the BIA who approves the leases and the Office
of Special Trustee who oversees the Individual Indian Money Accounts.
(d) Salmon and Floodplain Restoration. The CTUIR has been actively
engaged in restoring salmon runs in the Umatilla River and its
tributaries to protect the exercise of our Treaty reserved fishing
rights. Key to this effort has been restoring floodplains and riparian
habitat that salmon and other aquatic species require, which has
required the consent of allotment landowners for access and to perform
this important work. Again, securing this consent has been made
considerably more expensive and time consuming due to the large number
of landowners and the difficulty of locating many of those landowners.
(e) Management of Timber and Grazing Lands. The CTUIR efforts to
manage and protect timber and grazing lands on our Reservation are also
hampered by the fractionalized ownership of trust allotments. We have
had timber thinning operations delayed, or stopped altogether, due to
the inability to make contact with and get the consent of the
landowners involved. Similar challenges are confronted by our efforts
to manage and protect grazing lands.
(f) Housing. The development of mutual help homes on trust
allotments has been a particular source of friction due to
fractionalized ownership. These mutual help homes were constructed by
our Housing Authority pursuant to a lease between the landowners and
the Housing Authority. However, once the lease expires, the mutual help
homeowner needs authorization from the allotment landowners for
continued occupancy of the home. Securing this landowner consent has
been difficult, and in many cases the consent has not been received,
because the landowner(s) who signed the lease when the mutual home was
built has since died and the number of landowners has increased
dramatically when the lease expires. We continue to deal with mutual
help homeowners who have paid for their homes that are on allotments
where the homeowner has been unable to secure the consent of the
numerous landowners.
(g) Utility Rights-of-Way. The cost, delays and work associated
with fractionalized ownership of allotments is not only borne by the
CTUIR and its members, it is also borne by companies that do business
in Indian Country--such as utilities. On our Reservation, we have
rights-of-way for electrical, water, sewer, natural gas and cable
utilities that have fixed terms. These utilities incur considerable
costs and dedicate considerable personnel and time to locating
landowners and securing their consent for right-of-way renewals.
Question 2. Your testimony notes that one of the issues you face is
trying to consolidate fractionated shares--many of which are owned by
non-tribal members. Are there special considerations the Department
must factor in to ensure you are being serviced effectively through the
Land Buy-Back Program?
Answer. As mentioned in my testimony, the CTUIR has prioritized 400
fractionated allotments and 259 mineral only interests for purchase
under the Land Buy-Back Program. One of the important criteria we used
in selecting these 400 fractionated allotments was the percentage of
non-CTUIR member owners of fractionated interests in the allotment.
Therefore, it will be critical that Land Buy-Back funds be used to
purchase fractionated interests in these 400 prioritized allotments to
restore CTUIR ownership to Reservation lands reserved for our
``exclusive use'' in our Treaty of 1855.
Finally, I appreciate Chairman Young's comments at the close of the
hearing. We have also been concerned that the Land Buy-Back Program has
been managed by Department of Interior officials without any direct
involvement of tribal representatives. We also agree with the
Chairman's statement that the sooner our tribal lands are consolidated
the better it will be for tribes. I thank Ranking Member Hanabusa for
your further interest in my testimony and the work of the subcommittee
to improve the implementation of the Land Buy-Back Program.
______
Mr. Young. Sir, thank you for your precise statement. For
the next two guys, 5 minutes right on the button, so thank you.
Mark, you are up.
STATEMENT OF MARK L. AZURE, PRESIDENT, FORT BELKNAP TRIBAL
COUNCIL, FORT BELKNAP INDIAN COMMUNITY
Mr. Azure. Good afternoon, Mr. Chairman, committee members,
and guests. Congressman Daines, I want to thank you for
allowing me to be here to testify on behalf of the 7,000
enrolled members at Fort Belknap from the two tribes, the
Assiniboine and the Gros Ventre.
I was going to read the testimony, but I won't, because you
are keeping me at 5 minutes, but I want to echo what Chairman
Burke, Chairman Berrey and Chairman Finley are talking about,
and that at Fort Belknap, you know, we feel that we haven't
been part of this process. And we have made several attempts to
do that, to send in scope of work, cooperative agreements. And
waiting, and waiting, and waiting, and not hearing back from
the folks that are on the other end, you pick up the phone and
it is a dead dial tone there. So we want to be part of that.
And I want to echo that the outreach should come from
tribes, not somebody out here in DC. I know my people, they
know me. I think they are going to trust me more than they will
trust anybody else involved in this, whether it is the BIA or
the Department of the Interior, those staff members.
We have the same concern, that the overall settlement money
is not in an account gaining interest, and that we can't seem
to get our hands on even some administrative money to help us
implement this thing and get it rolling. And that the outreach
that is there now, it is a 1-800 number at a regional office
somewhere. When our tribal members call it, they might not
receive anything or hear a voice message, and so they are not
going to try back, and they are going to come frustrated to me,
and I am going to have to try to explain to them that there is
nothing I can do for you right now, other than come out here to
DC, when the opportunity arises, and give testimony, and hope
that changes how this plan is set in place.
I guess, other than that, Mr. Chairman, I will yield the
remaining time, and just hope that this committee hears
everybody on this panel loud and clear, that the way this thing
is going now, it is not working. Thank you.
[The prepared statement of Mr. Azure follows:]
Prepared Statement of Mark L. Azure, President, Fort Belknap Tribal
Council, Fort Belknap Indian Community
Good Afternoon Mr. Chairman, committee members and guests, and
thank you for providing the Assiniboine and Gros Ventre Tribes of Fort
Belknap an opportunity to express our concerns about the implementation
of the Land Buy-back Program enabled by the Cobell Settlement. My name
is Mark Azure and I am the President of the Fort Belknap Indian
Community Council, the governing body of the Assiniboine and Gros
Ventre Tribes of the Fort Belknap Indian Reservation in Montana. I am a
U.S. Army Veteran and a member of the Assiniboine Tribe of Fort
Belknap. The Fort Belknap Indian Community consists of over 7,000
enrolled members of the two tribes, for whom I am pleased to offer
these comments.
The Fort Belknap Indian Reservation was allotted through a separate
act of Congress in 1921. Since that time, many original allottees died
without wills, creating a significant fractionated interest problem. In
the 1920s there were 1,189 individual allotments issued covering over
650,000 acres on Fort Belknap. As early as the 1950s the Tribal Council
utilized various sources of funding to purchase land from heirs of the
original allotments. Our fathers and grandfathers on the Tribal Council
saw the detrimental effect that fractionated interests was having on
the ability to use lands.
In recent years the source of income to purchase lands has dried
up. According to the Department of Interior, in 2012, the Fort Belknap
Reservation had 3,007 fractionated tracts encompassing 570,883 acres
with 55,329 separate interests that potentially could be purchased if
sellers were willing.
At Fort Belknap, we have contracted a Tribal Land Department from
the BIA to help administer tribal lands under a P.L. 93-638 contract
for over 35 years. To satisfy our tribal goals, the tribal government
contributes $180,000 annually under its aid to tribal government
contract. This action shows our deep commitment to tribal land
acquisition. We also have experience with buying allotted lands from
enrolled members. In fact, we have within the last few years spent
$778,000 on land acquisitions in an attempt to purchase back land for
our tribes, and since the inception of our Land Purchase program in the
1970s, over 150,000 acres of allotted lands have been purchased and
added to tribal inventories. Many other acres have been exchanged and
consolidated. While these numbers may seem large, unfortunately, our
lack of resources has held back our overall plan to purchase
fractionated interests from willing sellers and solve the large
remaining fractionated interest problem that has plagued economic
development.
Our staff has attended national meetings of the Large Land-based
Tribes for decades, emphasizing the need for tribes to address
fractionated interests. We have patiently waited ``our turn'' while
other tribes were successful in receiving funds to purchase
fractionated interests.
In 2012, we were excited to see the potential for our Tribal Land
Purchase plans to receive funding through the Cobell Settlement. We
looked at the December 18, 2012, Land Buyback Plan of the Department of
Interior, and were ready to get moving. We attended numerous
``listening'' conferences, and were frustrated that our many
suggestions, made by tribal leaders and staff with decades of
experience and focus on enabling tribal-run programs, seemed to receive
little consideration.
When no specific contracts were even proposed by March, 2013, we
submitted a draft contract in April, 2013, to get the process moving.
Five months to identify and enable existing tribal programs to begin
purchasing lands seemed to be long enough. We were then and continue to
be very concerned that Congress set a 10 year limit on the availability
of these funds, beginning in November, 2012.
Unfortunately, we received no feedback on our written proposal and
agreement of April, 2013. Instead, DOI staff proposed a standardized
``boilerplate'' agreement to all tribes in June, 2013. While somewhat
discouraged about no response to our written proposal, we submitted a
new agreement based on the ``boilerplate'' agreement in late June,
2013. We incorporated most of the assurances and procedural steps the
DOI had sought in their draft, but upgraded the agreement to address
needs at Fort Belknap.
Again, we received no feedback on our June, 2013 proposal. Instead,
DOI, almost a year after funds became available for purchasing lands,
in the fall, 2013, published a process whereby tribes could contract
with DOI, but advised that they wanted detailed proposals, and then
they alone would respond and prepare their ``boilerplate'' agreement,
with no changes to be expected from their prepared draft.
We have reluctantly assented to this process and submitted a letter
of interest and a resolution to the DOI. It is now 18 months into the
120 month timeframe whereby these funds will be available. We know
people are interested in selling interests. We have applications for
land sales for millions through our existing processes. Regrettably, we
are no closer to purchasing these lands than when we started.
Two of the goals in the 2012 DOI Buy-back Plan were to ``maximize
tribal participation in the program'' and to ``establish and maintain
clear communication throughout its operation''.\1\ These were
appropriate goals. We embraced these goals, and spent significant
tribal resources in attending meetings and drafting agreements to
implement these goals. We operated under good faith that DOI meant to
implement these goals. It is now nearly 18 months after those goals
were drafted, and we are discouraged that neither of these goals are
progressing.
---------------------------------------------------------------------------
\1\ Updated Implementation, Land Buy-back Program for Tribal
Nations, Summary, Page 2 of 32 (December, 2012).
---------------------------------------------------------------------------
As far as we know, the Billings Regional Office of the BIA does not
have a clear plan to implement the Land Buy-back Program for Regional
Tribes. Our attempts to initiate a specific process here at Fort
Belknap have had no response. We know that historically, a single
transaction to be recorded in the Billings Regional Title plant has
taken 6 months. We cannot comprehend how that office could contemplate
processing the 50,000+ transactions anticipated in the Buy-back plan
from Fort Belknap alone over the next several years. We have not seen
an upgrade in volume capacity in that very important office.
These funds could mean an unprecedented influx of monies to our
local economy. At Fort Belknap, the DOI projected $54 million of the
total available would be needed to fund land purchases. These funds
will impact our local economy in multiple ways. If we could administer
the purchase program, local jobs will be created. The services needed
to support these administrative efforts will support local businesses.
Purchase funds will go to individuals who often are unemployed
otherwise. Their families and extended families will all benefit, as
will local businesses. Tribal government will benefit from the lease
and use of lands purchased.
But none of this is happening now, as the process the DOI is
implementing is uncommunicative and ignores tribal input. We have been
saying the same things for over a year. The transcripts of the
listening conferences will affirm our position that we are ready and
willing and want to administer these funds now.
The Cobell Settlement was a landmark in U.S. Government and tribal
relationships. It sought to remedy a long-standing problem of failed
government administration of resources. Its focus was to redress
problems created for individuals by failed government process.
Our leadership has often commented that it is ironic that funds
paid to redress problems created by failed government administration
should be proposed to be tightly administered by the same bureaucracy
that created the problem.
While not perfect, by any means, our people have elected leaders
who have administered tribal land buy-back programs for decades. We
sincerely would like the opportunity to obtain the funds designated by
Congress, apply them to our existing programs, upgrade those programs
where necessary, and get busy with the land purchases Congress assigned
these funds for in the settlement process.
We know that the DOI has spent a lot of these monies in the last 18
months on hearings, staff and forms. We are quite concerned that
millions of dollars which should have been spent on local efforts and
purchasing lands are now gone, without the purchase of a single square
foot of land at Fort Belknap! We respectfully ask this body to provide
oversight and mandate corrections to get these monies to tribes to
facilitate Congress' intent to purchase fractionated interests.
Thank you again for the opportunity to provide our perspective.
______
Mr. Young. Thank you. We do have your testimony submitted,
and definitely we will read it. I do appreciate that comment,
because we have a vote on, but I want to finish this hearing.
And so, Mr. Grant, you are up.
Mr. Stafne. Thank you, Mr. Chairman.
Mr. Young. That mic on?
Mr. Stafne. Yes, it is.
Mr. Young. Pull it into you.
Mr. Stafne. I will take President Azure's time, so, no.
[Laughter.]
Mr. Young. You see this thing here, buddy?
Mr. Stafne. OK, OK.
STATEMENT OF GRANT STAFNE, COUNCILMAN, TRIBAL EXECUTIVE BOARD,
FORT PECK ASSINIBOINE AND SIOUX TRIBES
Mr. Stafne. Good afternoon. On behalf of the Assiniboine
and Sioux Tribes of the Fort Peck Reservation, as well as the
Montana-Wyoming Tribal Leaders Council, I thank you for your
interest in this important subject. My name is Grant Stafne. I
am a member of the Fort Peck Tribal Executive Board. I would
like to thank Chairman Young, Congressman Daines, and the
members of the subcommittee, for holding this hearing.
The settlement of the Cobell litigation presents the United
States with the opportunity to accomplish great good to redress
decades of mismanagement, and strengthen tribal government
administration of tribal lands, and advance economic security.
Tribes obviously welcome any programs that have the potential
to undo the devastation of fractionated land ownership that
began when this Congress first enacted allotment acts in 1887.
The likelihood of the success of these programs can be greatly
improved by incorporating a few recommendations that many
tribes, including Fort Peck, have made. In my written testimony
I have provided detailed descriptions of these recommendations,
which I will now summarize.
First, with regard to the Cobell Settlement payments,
Indian Country would greatly appreciate your assistance to
expedite the long-overdue payments to members of the trust
mismanagement class.
Second, with regard to the $1.9 billion DOI Land Buy-Back
Program for tribal nations, DOI must establish perimeters for
cooperative agreements which we have handed in in June, July,
August, and, just lately, I hand-delivered it to the Secretary
of the Interior for funding for outreach efforts based on the
size of the reservation, the number of land owners, and the
amount of acreage and individual ownership. The Fort Peck
Reservation is 2.1 million acres. Of that reservation, 954,000
is still held in trust; 4,165 original allottees were allotted
land on our reservation, 320 acres with timber allotments. So,
as you are aware, some tracks of land on our reservation have
300, 400 owners.
Third, the Department should immediately disclose land buy-
back program expenditures for administrative costs. At a
minimum, the Department should provide quarterly reports to
Congress and Indian tribes of its administrative expenditures
and land purchases.
Fourth, tribal negotiations to obtain a cooperative
agreement should occur at the regional level of the BIA,
utilizing personnel familiar with our reservations, our level
of fractionated ownership, and our tribal governments.
Fifth, the Department should amend its arbitrary decision
to limit the appraisal shelf life to 9 months. Appraisals
should have a 12-month shelf life, and a possible 1-year
extension to control unnecessary costs, and to preserve the
ability to make subsequent purchase offers.
Sixth, Indian tribes, not appraisers, should determine
which reservation lands are purchasable.
Seventh, Interior should disclose any valuation efforts and
the cost of those efforts for mineral estates.
Eight, the Buy-Back Program should not require tribes to
finance all efforts to apply for and negotiate cooperative
agreements, contrary to the established practices of startup
and pre-award allocations in other Federal contract pursuits.
Ninth, Interior should reconsider policies that foreclose
purchases at probates and exclusion of fee lands to accomplish
truly meaningful land restoration.
And, tenth, in order to comply with congressionally
mandated Indian self-determination policy, the Department
should now engage in meaningful consultation with tribes on an
implementation schedule for the Buy-Back Program, a budget for
the program, purchase ceiling amounts, the mineral valuation
and appraisal for each reservation. By implementing these
simple recommendations, the Interior Department can live up to
its responsibilities set forth by Congress under the Cobell
Settlement.
[Speaking native language.]
[The prepared statement of Mr. Stafne follows:]
Prepared Statement of Grant Stafne, Councilman, Tribal Executive Board,
Assiniboine and Sioux Tribes of the Fort Peck Reservation
Good afternoon. On behalf of the Assiniboine and Sioux Tribes of
the Fort Peck Reservation, I thank you for your interest in this
important subject. My name is Grant Stafne. It is an honor for me to
serve on our tribes' governing body, the Fort Peck Tribal Executive
Board, as my parents, June and A.T. Stafne, and my uncle Caleb Shields
did before me.
I would like to thank Chairman Young, Congressman Daines, and the
members of the subcommittee for holding this hearing. The settlement of
the Cobell litigation presents the United States with the opportunity
to accomplish great good: provide redress for Indian land owners who
were victims of the Interior Department's failure to provide an
accounting of IIM accounts and for some mismanagement of Indian trust
resources, reduce fractionated Indian land ownership, and attempt to
redress the negative results of the General Allotment Act through
restoration of tribal land bases that will promote Indian self-
determination, strengthen and advance the economic security of tribal
communities, and fulfill the United States' trust responsibility to
Indians. The foundation for the trust responsibility has its origins in
our original land cessions to the United States and the Federal
Government's ensuing obligation to extend its protection to Indian
tribes and our reserved lands.
Tribes obviously welcome any program that has the potential to undo
the devastation of fractionated land ownership that began when this
Congress first enacted Allotment Acts in 1887. Sadly, in its 35-year
existence, the allotment of tribal lands to individual Indians resulted
in the loss of 90 million acres of tribally owned lands. Over the
years, the daunting task of managing the remaining lands held by
individual Indians in small fractionated interests established the
basis for the Cobell litigation brought on behalf of individual
Indians. Including a program to purchase fractionated land interests
for restoration to tribal ownership in the Cobell settlement benefits
tribes and is long overdue.
cobell settlement payments
While payments to individual Indians that were members of the
accounting class occurred well over a year ago, payments to tribal
members in the Trust Mismanagement class of the settlement have not yet
received payments. Payment dates have been delayed throughout the last
year and many individuals are losing faith that payments are
forthcoming. Indian Country would greatly appreciate your assistance to
expedite the long overdue payments to members of the trust
mismanagement class.
doi land buy-back program for tribal nations
Unfortunately, the Cobell Settlement was developed without tribal
consultation or input despite the significant impact the settlement
would have on tribal lands. The Land Buy Back Program funding,
including funds for actual land purchases and administrative costs,
were determined without tribal input and without consideration of the
challenges of trust land purchases on a large scale basis. Further, the
Indian Land Consolidation Act was incorporated wholesale to govern land
purchases without a review of some of the complexities and burdensome
provisions of ILCA, in light of the timeframe to expend all purchase
funds. Indeed, the Cobell settlement ignored fundamental Federal Indian
policy introduced by President Nixon that ``the Indian future'' should
be ``determined by Indian acts and Indian decisions.''
DOI initially developed and released a Land Buy Back Program for
Tribal Nations implementation plan that detailed the settlement
components and process for implementation without tribal consultation.
In the early consultation sessions, tribes were greatly concerned
about: (1) the award of funds back to the Department of Interior to
purchase fractionated lands; (2) the establishment of an education fund
as an incentive for individuals to sell trust interests; (3)
prohibiting tribes from entering into P.L. 93-638 contracts for land
buy back implementation; and finally (4) that tribes were relegated to
providing a priority list of tracts for DOI purchase only. However,
these components of the Buy Back Program were negotiated by the parties
and specifically included in the settlement and the 2010 Claims
Resolution Act. Thus, despite tribal outcry on these issues, the
standard response has been that neither the parties to the settlement
or Congress is willing to reopen the settlement or the approving
legislation. Despite the hesitancy to modify the Settlement or
legislation, we would propose consideration of minor modifications to
the settlement agreement and technical amendments to the legislation
that would authorize P.L. 93-638 contracts for both land purchases and
implementation efforts (allowing tribal access and control over both
land purchase and administrative funds), and revise the management of
the education fund. Tribes have repeatedly expressed their preference
for allocation of the funds directly to tribes rather than to a non-
profit corporation over which tribes have no control or access to
funding. Clearly, education funds in the hand of tribes would best meet
the education goals of tribal people. Federal funds, albeit settlement
funds, awarded to non-profit entities for the benefit of tribal people
flies in the face of the government to government relationship and
marginalizes the desires of tribes to assist their membership meet
educational goals. Justification to amend the P.L. 93-638 restriction
is highlighted by the testimony below.
The Interior Department held several consultations that focused on
tribal involvement in the Land Buy Back Program. The initial
Implementation Plan established ceiling amounts of funds for land
purchases for each the 40 plus Indian Reservations with the most
fractionated lands and Buy Back staff `opened the door' for tribal
involvement to assist with any or all of the implementation tasks of
Outreach, Land Research, Valuation and Acquisition. Tribes believed
they could implement any of the four tasks and would receive a portion
of the total amount of available administrative funds for the efforts.
Tribes actually understood they could seek 15 percent of the ceiling
amount for administrative efforts. However, the Buy Back Program,
without tribal consultation, moved forward with policy decisions that
now limit tribal involvement to primarily to the outreach task. While
we have been attempting to determine appropriate tribal involvement,
DOI has proceeded with internal processes to conduct land research,
modify the National Title system to generate offers and establish an
acquisition process. The result is that tribes will actually only be
involved in the Outreach tasks as DOI has moved forward with
establishing processes for the other identified tasks which clearly
further limits tribal involvement in the implementation process.
The constant revisions and lack of clear guidance in the program
leaves the Fort Peck Tribes and Tribes in Montana and Wyoming
frustrated and disappointed that this rare opportunity for tribal land
restoration may fall short of expending all land purchase funds within
the mandated 10-year period. To avoid such a pitfall, tribal support
and tribal participation is critical. Tribes can best advocate for the
program and discuss in detail the drawbacks of fractionated land and
the benefits of tribal land consolidation.
cooperative agreements
The Land Buy Back Program made a policy decision to utilize
`cooperative agreements' for tribal participation in the program
although `cooperative agreements' are rarely utilized in Indian Affairs
and have little regulatory guidance. DOI has developed an application
process to obtain a cooperative agreement that consists of a Scope of
Work Template (allows tribes to specify tasks choose to undertake), a
detailed Statement of Work narrative, and SF424 Forms to receive
Federal assistance. However, no guidance or parameters have been
established for tribes to conduct outreach efforts. Without parameters
and formulas for funding, interested tribes, including Fort Peck, have
engaged in a guessing game with DOI to negotiate cooperative
agreements.
Since I last testified on this subject in December before the
Senate Indian Affairs Committee, we have been coordinating with a
Tribal Relations Liaison, with the DOI Land Buy Back Program, located
here in Washington, DC to submit a statement of work that meets the
program requirements, without specific guidance on those requirements.
The specific cost and equipment estimates required exceed the level of
specificity for other contracts with the BIA. While we have had
continuous discussions with Buy-Back Program staff, I am sorry to
report that we still have no agreement on basic concepts such as the
amount of funding, number of staff persons, and equipment needs to
finalize a cooperative agreement. Our experience at Fort Peck is
consistent with that of other tribes in the Rocky Mountain Region and
across large land based reservations. As of this date, a very small
number of tribes have achieved cooperative agreements to participate in
implementation efforts despite interest and application from many
tribes.
The cooperative agreement negotiation process has been insulting to
Fort Peck since I personally have worked in virtually every aspect of
Indian land acquisition, primarily in local and regional real estate
positions with the Bureau of Indian Affairs including the Deputy
Superintendent of Trust Services at the Fort Peck Agency. Following
Federal service, I went to work for my tribes as the Director of the
Fort Peck Land Buy-Back program.
In a little over a year, our tribes re-acquired over 10,000 acres
of land on our Reservation using tribal funds. We have the capacity,
professionalism and familiarity with trust lands on Fort Peck
Reservation to efficiently implement land purchases. Instead, we are
wasting time and money with lengthy negotiations that have yielded no
positive results.
The Buy-Back Program appears to benefit the Federal Government
first, and Indian beneficiaries, in this case, tribes second. That very
notion is reminiscent of the Federal Indian policies of yesterday:
policies that resulted in the eradication of the American bison, the
removal of Indian children, and the taking of Indian lands; policies
that were intended to benefit the government in dealing with ``the
Indian problem.''
In addition to the above suggestions to revise the settlement and
legislation, we suggest the following revisions of the current DOI
policy determinations to improve the implementation of the Buy Back
Program.
recommendations
First, DOI must establish parameters for Cooperative Agreement
funding for outreach efforts based on the size of the reservation, the
numbers of landowners and amount of acreage in individual ownership.
Funding must be proportional to specific outreach tasks appropriate for
each particular reservation and not set at a flat $500,000 per
reservation as has been communicated to Fort Peck and other tribes.
Second, the Department should immediately disclose Land Buy Back
Program expenditures for administrative costs. DOI has provided no
budget information for the new positions created, both at the DC level
and in Acquisition centers, no information on the costs to enhance the
Trust Accounting and Asset Management System (TAAMS) to implement Land
Buy Back efforts and most importantly, the cost of valuation efforts.
No information has been provided, and clearly no consultation
attempted, regarding expenditures of the administrative funds. Further,
DOI has not disclosed financial information on the status of program
purchases with the amount expended in contrast to the established
ceiling amounts to effectively determine willingness of individuals to
sell interests. No information on the costs for the valuation processes
has been disclosed. Full transparency is necessary to determine whether
the established 15 percent administrative fee amount may need
modification for full expenditure of the land purchase funds and to
determine how unexpended purchase funds may be reallocated. At a
minimum, the Department should provide quarterly reports to Congress
and Indian tribes of its administrative expenditures, land buy back
purchases and time-table to keep Congress and the tribes apprised of
Department progress to expend the $1.4 billion allocation in a timely
manner.
Fourth, tribal negotiations to obtain a cooperative agreement
should occur at the Regional level of the Bureau of Indian Affairs
utilizing personnel familiar with our reservations, our level of
fractionated ownership and our tribal governments. Working with the new
Tribal Liaisons at the Central Office level of the DOI has been slow
and ineffective.
Fifth, the Department should amend its arbitrary decision to limit
the appraisal shelf-life to 9 months. Appraisals should have a 12 month
shelf-life and the possibility of a 1-year extension consistent with
current appraisals of trust. The limited shelf-life will likely result
in additional costs to update outdated appraisals and will foreclose
sending purchase offers out a second time if little success was
achieved in the first round of purchase offers.
Sixth, Indian tribes, not appraisers, should determine which
Reservation lands are purchasable in Land Buy Back Program. Presently,
there is no individual consultation with tribes before DOI determines
which land interests are determined purchasable and non-purchasable.
Tribes as the intended beneficiaries of the land purchases must be
informed about the criteria to determine lands non-purchasable and have
an opportunity for input on that determination. Congress should insist
the BIA discontinue exercising overbroad authority and place
decisionmaking authority in the hands of elected tribal governments who
are accountable to tribal members.
Seventh, DOI should disclose any valuation efforts, and the cost of
those efforts, for mineral estates. DOI has stated that it has the
capacity to render values for mineral estates but has provided vague
and topical information on the process and the extent of actual
valuation efforts. Instead, it appears that DOI is expending limited
administrative funds to review fractionated interests and
``mineralize'' those interests or determine that the mineral interest
has development potential and must be excluded from the list of
purchasable tracts. Excluding tracts that are ``mineralized'' will
limit Buy Back Program success on numerous reservations including Fort
Peck. DOI should allow landowners to reserve his/her mineral estates
and sell the surface estates. Currently, the DOI policy for the Buy
Back Program is to restrict separation of surface and mineral estates,
which will deprive many individuals from participation in the Program.
Eighth, the Department should obtain the consent of the tribal
government before undertaking a reservation-wide appraisal, and provide
results of appraisal activities to tribes. Further, the appraisal
process should be consistent with the tribal government's land use
plans.
Ninth, the Buy Back Program has determined that tribes must finance
all efforts to apply for and negotiate a cooperative agreement,
contrary to the established practices of startup and pre-award
allocations in other Federal contract pursuits, primarily for P.L. 93-
638 contracts. The application process has been burdensome and labor
intensive. The Interior Department is expending Buy-Back funding
setting up its own capacity to administer the Buy-Back Program.
However, tribes are precluded from reimbursement for precious tribal
resources that are expended the under Cooperative Agreement process. A
revision of the policy to allow for startup and pre-award costs would
facilitate a larger number of responsive applications.
Tenth, the DOI should reconsider policies that foreclose purchases
at probate and the exclusion of fee lands to accomplish truly
meaningful land restoration. Additionally, tribes that have on-going
land purchase activities could be reimbursed for those purchases for a
cost effective expenditure of the land purchase funds.
Eleventh, in order to comply with Congressionally mandated Indian
Self-Determination policy, the Department should now engage in
meaningful consultation with tribes on the implementation schedule for
the Buy Back Program, a budget for the Program, purchase-ceiling
amounts, the mineral valuation and mass appraisal processes, for each
Reservation.
conclusion
Unless Congress acts now to require meaningful consultation, it
appears that the Interior Department intends to use the Buy-Back
Program as nothing more than a vehicle for closure of Individual Indian
Money Accounts. Surely Congress intended more when it appropriated
nearly 2 billion dollars to the Land Consolidation Fund.
As now contemplated, the Department's Land Buy Back Program will
have limited impact on the Fort Peck Indian Reservation. Under the Fort
Peck Allotment Act, roughly two-thirds of the original 2.1 million
acres of tribal lands were allotted or opened for Homesteading. Now,
over half of our Reservation is held in fee simple status, mostly by
non-Indians and such lands are excluded from the Buy Back Program. True
land consolidation can occur on a Reservation like ours only if all
interests including fee interests are purchased, including those
interest that are no longer held in trust.
I will conclude by saying that while Congress struggles to
determine appropriate government funding levels, Indian Country is
disparately affected. Conditions in Indian Country remain among the
worst in the country. Indians continue to have the highest rates of
unemployment, poverty, infant mortality, shorten life expectancy,
diabetes, heart disease, chemical dependency, and suicide, to name a
few. The list is long and must be reversed.
These conditions are a direct result of Federal policies over the
last two centuries; polices that promoted paternalistic treatment of
Indians and a system of political patronage that was wholly
inconsistent with the highest fiduciary obligations of the United
States as our trustee. These policies, in many instances, were designed
to advance well-being of non-Indians, to the detriment of the Indian
population. One of those policies resulted in the loss of 90 million
acres of Indian held lands. The Buy-Back Program cannot give full
redress for that loss or its effects, but the Trust Land Consolidation
Fund does have the potential to fulfill that to which its name aspires
if implemented by the Interior Department in close partnership with
Indian tribes.
Tribal governments are the ultimate beneficiaries of reducing
fractionated trust parcels on reservations. To ensure that our land use
goals are realized, the Department must consult with us. The BIA should
expend the proceeds of the Buy-Back program only in a manner that
reflects the needs of the Reservation community.
Thank you for the opportunity to share our perspectives and
concerns. I would be happy to answer your questions.
______
Questions Submitted for the Record by Ranking Member Colleen Hanabusa
to Grant Stafne, Councilman, Tribal Executive Board, Assiniboine and
Sioux Tribes of the Fort Peck Reservation
Question 1. With regard to Cobell Settlement payments--please help
the committee understand what type of responses members of your tribe
have gotten from either the Department or the Garden City Group, when
they call to ask about the status of Trust Administration Class
payments.
Answer. Ranking Member Hanabusa, thank you for your interest in the
Cobell Settlement payments. Payments to the Trust Administration Class
have been seriously delayed. Initially, the Garden City Group informed
class members that payments would be made in December, 2013. However,
to date no payments have been made.
Unfortunately, neither Garden City, nor the Department of Interior,
has directly communicated with landowners to explain the delay.
Instead, Garden City has issued public statements indicating that the
delays have been caused by the Department of Interior. Interior has not
communicated reasons for the delay to class members or tribal leaders.
Information provided to individual landowners by the Department of
Interior call center has been vague and information provided varies
from call to call.
Moreover, the Department of Interior has not confirmed the final
membership of the Trust Administration Class. In fact, we understand
that Department has allowed submission of appeals from persons claiming
omission from the historical accounting class. Tribes have not been
informed regarding this appeals process, the number of appeals filed,
the criteria to resolve an individual appeal, and the financial impact
of expanding the historical accounting class. The financial impact is
crucial as it will reduce the amount available for Trust Administration
Class payments. The inclusion of a Trust Administration Class to settle
mismanagement of trust lands and assets claims generated the majority
of criticism of the settlement. Given the time that has elapsed since
the Cobell Settlement was announced, it is deeply troubling that Trust
Administration Class members have yet to be informed regarding the
timing and amounts of settlement payments.
Question 2. You criticize the Department for not conducting
meaningful consultation with tribes. In your opinion, what would
meaningful consultation look like and how would it differ from what the
Department is presently doing?
Answer. Thank you. As I indicated in my written testimony, the Buy-
Back Program was developed by the Department of Interior unilaterally,
without tribal involvement, and in disregard of the congressionally
mandated Self-Determination policy. Unfortunately, given the time
constraints placed upon the Department for administering the Program,
it is now impractical for the Department to go back and conduct
meaningful consultation on the planning and development of the Program.
However, in order to comply with congressional policy, the Department
should, at the very least, engage in meaningful consultation with
tribes and individual Indians on every affected Reservation. That
consultation must necessarily pertain to the implementation schedule,
purchase ceiling amounts, mineral valuations, and the appraisal
processes for each Reservation.
In my written testimony, we provided the committee with 11
recommendations for improving the Program. In our view the best way for
the Department to engage in meaningful consultation is engage tribes in
a dialog on each of those recommendations. I will not reiterate those
11 recommendations here. Instead, I would like to highlight a couple of
areas where direct consultation with individual tribes is critical.
First, the Department has given appraisers discretion to determine
which Reservation lands are purchasable and which are not. In many
cases these decisions have be made without consultation by the United
States as the trustee, or by the tribes as an ultimate beneficiary.
This grant of authority outside the trustee-beneficiary relationship is
an affront to tribal sovereignty, a breach of the Trust Responsibility,
and is fundamentally unfair to individual Indian landowners.
The Department should engage in one-on-one consultation with each
tribe in order to determine which tracts of land are purchasable and
which tracts are not. This consultation should include in-person
meetings with Tribal and Federal technical staff to discuss the
criteria used in determining whether tracts are purchasable. Prior to
such discussions, tribes will need information from the Department
specific to their Reservation concerning any criteria the Department
believes appropriate for omitting certain categories of tracts.
It is important to note here the difference between tracts and
interests. A tract is a parcel of land recorded and managed by the
Department as a unit. Generally, tracts were allotted to individual
Indians or retained by a tribe. Each tract is assigned a specific
number. Interest or interests refer to the various ownership interests
of a particular tract. As you know the primary purpose of the Buy Back
Program is to reduce the number of highly fractionated interests.
Tribes understand that there are legitimate reasons for objective
determinations as to whether particular interests are purchasable, such
as interests that may be held by landowners deemed non compos mentis,
interests held by a minor, encumbered by a life estate or interests in
probate status. However, determining whether entire tracts are
purchasable is a decision which requires direct tribal involvement.
Additionally, tribes should have an opportunity to cure the issue
rendering the entire tract as non-purchasable, such as the removal of
an abandoned home, etc. The individually owned tracts are currently in
trust, under Bureau of Indian Affairs management, and will remain in
trust while under tribal ownership if purchased. Thus, the existence of
abandoned buildings, barns, corrals, or other un-sued improvement pose
no additional Bureau of Indian Affairs management responsibilities than
those that already exist and should not form a basis to omit tracts
from the purchasable list.
Second, the Department should immediately engage tribes in
individual discussions about how the funds agreed upon in the
cooperative agreement process should be held. The Department has made a
unilateral decision to reimburse tribes for activities under
cooperative agreements, or when deemed appropriate advance certain
funds in the Department's discretion. The Department should discuss
with each tribe during the negotiation of cooperative agreements what
protocol can be established for tribes to draw down funding upon
execution of a cooperative agreement. We understand that the Department
may wish to ensure that the funding is protected and available to
provide intended services. However, there are many ways to provide such
assurance, while at the same time allowing tribal programs to enhance
the funds available by depositing the funds in interest bearing
accounts. As we understand it, no interest is being earning on the Land
Consolidation Fund.
I urge the committee to demand meaningful consultation by the
Department with tribes and Indian beneficiaries and require the
Department to execute the Self-Determination laws and policies
prescribed by Congress.
______
Mr. Young. I hope you said ``thank you.''
[Laughter.]
Mr. Young. Because you said, ``Oh, that is it, buddy''----
Mr. Stafne. Assiniboine and Sioux. We have two tribes on
our reservation.
Mr. Young. OK. Mr. Grijalva, would you like to ask
questions?
Mr. Grijalva. Thank you, Mr. Chairman. I am going to submit
the questions, thank the leaders that are here, and the
questions as to the difference between self-determination
contracts and cooperative contracts, and sharing the
frustration that you pointed out.
This has been too long, and needs to be expedited. And if
there are things that we can do, as a Committee, Mr. Chairman,
to expedite and still assure all the accountability that is
necessary, I think we should move in that direction. Thank you.
Mr. Young. I thank the gentleman, because we do plan on
introducing legislation. I hope we will be working with you to
solve some of these problems.
Mr. Daines.
Mr. Daines. Thank you, Mr. Chairman, and I really do
appreciate you holding this hearing, this important issue. And
as you mentioned, this is a ticking time clock right now. And
where is the incentive for the Federal Government? Because once
the clock expires, it goes back to the Treasury.
Mr. Young. Right.
Mr. Daines. And this is why we have to be here, as the
accountability here, to get something done.
As I mentioned, you know, Montana is home to seven
federally recognized Indian reservations, which are among the
highest fractionated in the country. At the same time, back
home in Montana, our unemployment rates are at or near 50
percent out in Indian Country. And fractionation makes economic
development and access to essential services very, very
challenging. And navigating this Federal Government bureaucracy
becomes even more complex, as we heard from our witnesses here
today. And the Land Buy-Back Program has provided Indian
Country with the means to improve their future. However, we
hear today that the program is not working, and the hope in
Indian Country is turning into frustration.
You know, I toured several of the reservations in Montana
in the beginning of this year. And the implementation of the
Land Buy-Back Program was the highest issue of concern for most
tribes. When every tribe is experiencing similar challenges,
and we heard it here. I mean we heard it across Indian Country
in Montana, and now we hear it expanded across Indian Country
across the United States.
I think we see that the problems here must be systemic, and
I hope today's hearing sheds some light on these issues and
allows us to explore ways to help this program work for Indian
Country. So thank you for inviting from Montana these Montana
tribal leaders, President Mark Azure of the Fort Belknap Indian
Community Council, and Councilman Grant Stafne from the
Assiniboine and Sioux Tribes.
Let me start with President Azure. Your testimony was
enlightening. I appreciate you called the audible there, like
Peyton Manning, and you just kind of spoke from your heart and
your head, as well. I was struck by the dead dial tone comment.
The tribes' difficulties in dealing with the BIA are
unacceptable. And please know I am eager to help improve these
lines of communication, and do what I can to strengthen the
tribes' voice throughout this process.
But one issue that struck me was how you mentioned the Land
Buy-Back Program as being ``tightly administered by the
bureaucracy that created the problem in the first place.'' It
is frustrating to hear that the Federal Government struggles to
fix its own mistakes.
Could you expand on how the program would improve, Mr.
President, if the Fort Belknap Tribes had more involvement in
the implementation of this program from the very beginning?
Mr. Azure. Congressman Daines, I think, just on the
surface, that we would be engaged from day one, that we would
play a huge role in it, and that at Fort Belknap we have had a
land department there, contracted from the BIA, for over 35
years. And so, we have worked those kinks out.
We understand what you have to do, and that dealing with
our tribal members and I am sure these other chairmen and
Councilman Stafne will say the same thing. We know those folks.
And anybody in the room, in this room right now, they trust us
the most. They might not trust us all the time. But out of
everybody in here, they will trust us first.
And that, you know, when you are involved in this, if we
are given participation, then we take ownership in it. That
means it is ours, and that it is up to us to make sure it
doesn't fail.
And in talking with some folks yesterday, I was told that
the settlement wasn't put in place to create economic
development. But you mentioned across Montana on reservations,
that unemployment is at 50 percent, probably higher on other
reservations. But I think, for a short term, that is exactly
what it is going to do, it is going to interject dollars into
our communities, and put some folks to work. And that is where
I get the passion that if it means that I get to put 6 people
to work or 20 people to work, then they are not depending on
those other social programs that I oversee. And at some point
during the fiscal year, I might have to lock the door because
there is no money to pay those folks that are sitting there.
So, again, Congressman, I think it goes back to if we were
allowed to participate, we would have ownership. We know the
people the best, we know the land the best. And we would ensure
that it wouldn't fail. Thank you.
Mr. Daines. Thanks, Mr. President. I have a couple
questions for Mr. Stafne, but I am out of time, Mr. Chairman.
Mr. Young. You are out of time, and we are out of time, if
you want to vote. I am going to go ahead and stay here. If you
want to stay here, you are welcome.
Mr. Daines. You know, let me get these questions going with
Mr. Stafne. How much time do we have left on the vote? Is it--
--
Mr. Young. You have 2 minutes and 41 seconds. But go ahead,
and I will let you ask two more questions.
Mr. Daines. OK, all right.
Mr. Young. Then I am going to bang the gavel, so make them
quick.
Mr. Daines. All right. Mr. Stafne, you have given us a list
of 10 recommendations. I wonder if you could prioritize your
recommendations that will be at the top three or four.
And the second question, then I am going to have to go
vote, but we will get it caught in the record, and that is you
have suggested the Buy-Back Program should be administered
under the Indian Self-Determination and Education Assistance
Act. That is P.L. 93-638. How hard would it be for us to make
that happen?
So, there are the two questions. The Chairman will record
that here, and I am going to have to go off and vote. So, Mr.
Stafne?
Mr. Stafne. Thank you, Mr. Congressman, Congressman Daines,
for the question.
Regarding your first question, 10 recommendations on my
bullet points. Our cooperative agreements, I would put that on
number one, maybe consultation and consideration of tribal
interests and appraisals. Transparency, we need transparency,
and then, moving the process down to Rocky Mountain Regional
Office.
And 638 question, we can hopefully, with your help, get a
technical amendment to the Indian land consolidation. More
specifically, 25 U.S.C. Sec. 2212, as well as a minor
adjustment to the settlement agreement for Indian land
consolidation. Thank you.
Mr. Young. Thank you. Mr. Roberts, you have heard all this.
I will give you a chance to respond, and then I will ask you a
question.
Mr. Roberts. OK. I think, in terms of what the tribal
leaders have said here at the table, I think that there are a
lot of things that I agree with them about. And some of which
is that what I am hearing is we want to implement this quickly
and get money out to Indian Country. Right? And we are for
that.
This is a $1.9 billion program. It got up and running in
December 2012. We said very shortly after it got up and running
that our goal was to get initial purchases out at a couple of
locations. We went to one reservation that was extremely
fractionated, Pine Ridge. We went to another reservation,
Makah, that sounds a little bit more like Quapaw, in terms of
not the level of fractionated interests. We are having some
lessons learned there, but we are looking to ramp up, and we
need to ramp up, because we only have 10 years.
And I have heard, Chairman, you say it, I have heard the
tribes say it, nobody wants this money to go back to Treasury
at the end of 10 years. We are focused on spending all of the
money over the next 10 years. And, quite frankly, some of the
tribal leaders have said this, is that the money itself, the
$1.9 billion, that is probably not enough money to solve the
problem.
So, you know, we are working as fast as we can. I think
that this is helpful, Chairman Berrey laying out, he is ready
to go. I have heard that from a handful of other tribes. And I
know that Fort Peck and Fort Belknap, I know they want to be
ready to go, and I agree with them. Tribes need to be the face
of this program. They are not going to sell their interests
because Kevin Washburn or I are telling them to do so. They are
going to do it because these tribal leaders are supportive of
the program. So I think we have a great opportunity here to do
that.
Mr. Young. We are going to work on legislation, and not
adversarially with you, I hope, and the Department. 638 was
opposed by the Department. It is in the law. We have to change
that. And I hope we have your support in doing so, because I
think it is the smart way to go. I think it would make
everybody happy at this table, and it would work much better,
because they are feeling left out, even though you are doing
your best.
You are relatively new on the block. I am not doing this
personal, I want you to know. But when we write this
legislation, because I think it will go very quickly, I want
your participation in it, like listen to recommendations, so we
can get this done and consolidate those fractionated areas. And
there is a feeling, with all due respect, this is coming from
Washington, DC. That settlement really shouldn't have been
about that.
And, by the way, I opposed that settlement. I opposed it
vividly, because I don't think it was enough money. If you look
at the figures I had long before it was ever settled, we are in
the $27 billion range. And we ended up with $1.9 billion.
Everybody is, ``Oh, that is a lot of money.'' You look at the
mismanagement of the Department of the Interior, and the taking
of monies away from the tribes by every method they had, $1.9
billion doesn't come close to it. So I just want you to know
that is where I am coming from.
So, I hope I have, each one of you chiefs there, I guess
you are all chiefs, I appreciate your statements, because you
have made some progress. But I think you will work better if we
have a small piece of legislation we call technical
improvements upon. If we had to pass this solution, and they
had this, there is no reason why it can't be done.
And, by the way, I am going to be a little nasty now. Who
is in charge of this? Are you, Mr. Roberts? Are you in charge
of this?
Mr. Roberts. No, Chairman. The Deputy Secretary, Mike
Connor, and the executive board of the Department of the
Interior, Secretary Salazar established the executive board.
They are in charge of it. And Deputy Secretary Mike Connor
chairs that board.
Mr. Young. OK. Who is on the board?
Mr. Roberts. It is Solicitor Tompkins, Assistant Secretary
Washburn, Director of BIA Mike Black, Director of BLM, and the
Deputy Assistant Secretary for Technology, Information, and
Business Services.
Mr. Young. But there is nobody from the tribes. Is there?
Mr. Roberts. [No response.]
Mr. Young. No. I don't want to put you on the spot now,
because you didn't pick them. But, see, that is the problem.
There isn't that communication. Are all you guys going to be
here tomorrow, or do you have flights out of here?
Mr. Stafne. I will be here tomorrow.
Mr. Young. The rest, can they, Larry, can they sit down
with that part of that board, or the two guys in charge, and
give them the suggestions they have given me, and see if we
can't do some of this executively, and get it done quicker,
without us having to go through legislation? Because this body,
the total congressional body, is sort of like a snail that
doesn't have any salt on it. It doesn't go very fast. And I
would like to see this thing, because the sooner we get these
reservations consolidated, it is going to be better for the
tribes.
Now, not to put you on the spot, Mr. Roberts, but can they
sit down and meet with these people?
Mr. Roberts. Well, I know Assistant Secretary Washburn is
out on travel, he is not in the office tomorrow. I don't know
what the other schedules are----
Mr. Young. But there are two guys in charge of this you
told me.
Mr. Roberts. Well, there are----
Mr. Young. There are two guys in charge of this program.
There is a board, but the board doesn't make all the decisions.
You have two CEOs, or what do you call it, making these
decisions, right?
Mr. Roberts. It is the Deputy Secretary with the board. So
it is----
Mr. Young. Wait a minute----
Mr. Roberts. The Deputy Secretary chairs the board.
Mr. Young. Wait, wait. All due respect, now.
Mr. Roberts. Sure.
Mr. Young. If that is the case, no wonder it is not
working, because they don't have the time. There should be one
person in charge of the Cobell solution expediting the process.
A board never works, anyway, you know? I mean I am just looking
for solutions, Larry.
Mr. Roberts. I hear you, Chairman. You know, I am happy to
meet with any of these tribal leaders tomorrow that want to
meet, and hear more directly from them. I know Chairman Berrey
was talking about how he has had a cooperative agreement
submitted. I want to talk with him about that after this
hearing. I just don't know everyone's schedules. That is not in
my briefing book.
Mr. Young. All right. But you understand, you guys? This is
the way to get this done. And if they don't want to do it,
being the Department, I am going to slow-walk you, I want to
know that. And then we can solve this problem. If you don't
want to do it, Mr. Washburn doesn't want to do it, you know,
then you are going to have a little problem. Because this
settlement was inadequate to begin with, and we are trying to
take that inadequacy and make it work.
Mr. Roberts. Yes, we are----
Mr. Young. That is what I want to do.
Mr. Roberts. We are all on the same page, Chairman.
Mr. Young. All right.
Mr. Roberts. We all want it to work.
Mr. Young. Good enough. Well, thank you all. And there is a
vote, and if I miss it, you go home and tell my constituents I
missed the vote because I was willing to sit here and to listen
to your questions and your answers and your presentations. I
thank you, because this is an issue I want to settle. And let's
get on with it.
And, Mr. Roberts, you go back and tell Mr. Washburn that
this is one of my priorities. OK? You got it. Thank you very
much. The committee is adjourned.
[Whereupon, at 3:07 p.m., the subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Prepared Statement of The Honorable Peter DeFazio, Ranking Member,
Committee on Natural Resources
Mr. Chairman, thank you for holding this hearing today. I want to
begin by welcoming a fellow Oregonian, Chairman Gary Burke of the
Umatilla Tribe. Chairman Burke, I had the pleasure a few weeks back of
meeting some young leaders from your tribe who were in town for a Close
Up trip and now I am happy to see one of their role models here in
person today. I am glad you made the long trek out here and I look
forward to hearing your testimony.
The $3.4 billion Cobell Settlement was reached in order to resolve
breach of trust litigation between a class of approximately 500,000
Individual Indian Money (IIM) account holders and the Federal
Government. $3.4 billion seems like a lot of money. But we have to
remember, it is aimed at compensating individuals for whom the United
States has a legal fiduciary relationship and toward whom it failed
miserably in that duty. After over a decade of litigation, this
settlement not only compensates class members directly, but also begins
to address the fractionated land problem on Indian reservations.
The Department of the Interior is currently tasked with
implementing the settlement and I have heard that some tribal leaders
are skeptical of their methods. I look forward to hearing testimony
from the Department and from tribal leaders. As this settlement is
implemented, I think we not only have to keep the Department's feet to
the fire, but also to be willing to legislate when appropriate to
enable them to discharge their duties for the benefit of tribes.
I yield back.
______
Prepared Statement of the Hon. Rauul M. Grijalva, a Representative in
Congress from the State of Alaska
Thank you, Chairman Young.
I want to start by welcoming our tribal leaders who have come from
far and wide to be here. Thank you for taking time out of your busy
schedules to help us understand what you are facing with regard to the
Cobell Settlements implementation.
Mr. Chairman, our Nation has a sordid history of not living up to
its trust responsibility toward American Indians. This fiduciary
obligation is, in a sense, a bargained for exchange. The United States'
expansion from 13 small colonies to a continental superpower was only
made possible by working with tribal leaders to exchange lands for
certain rights and benefits. Generally speaking, the United States has
an obligation to act as a trustee for the various tribes and individual
Indians--for many of whom it holds land in trust. When it fails in that
duty, it is legally responsible to compensate those affected.
The Cobell Settlement grew out of such a breach of the trust
obligation whereby the Department of the Interior grossly mismanaged
the assets of IIM account holders. Eloise Cobell, on behalf of a class
of approximately 500,000 similarly situated individuals, began class
action litigation in 1996. This dispute was finally resolved in 2012
when all appeals associated with the settlement were exhausted. Now,
the Department of the Interior is charged with implementing the
settlement.
Given that the same Department that caused this problem is charged
with implementing its solution, it is understandable that tribes are
concerned about the way the settlement is being implemented and they
fear the potential for mismanagement. That is why one of the most
important things lawmakers can do is to ensure the Department is
implementing the settlement in a way that puts the needs and concerns
of tribes first. To that end, I appreciate you holding this hearing,
Mr. Chairman, because I think the time is right for Congress to check
on the Department's progress. I also think Congress should be open to
acting through legislation if and when it is needed to ensure the
Department has everything it needs to get the job done.
I yield back.
[all]