[Senate Hearing 113-299]
[From the U.S. Government Publishing Office]
S. Hrg. 113-299
S. 919, THE DEPARTMENT OF INTERIOR TRIBAL SELF-GOVERNANCE ACT OF 2013
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HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JANUARY 29, 2014
__________
Printed for the use of the Committee on Indian Affairs
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Washington, DC 20402-0001
0COMMITTEE ON INDIAN AFFAIRS
MARIA CANTWELL, Washington, Chairwoman
JOHN BARRASSO, Wyoming, Vice Chairman
TIM JOHNSON, South Dakota JOHN McCAIN, Arizona
JON TESTER, Montana LISA MURKOWSKI, Alaska
TOM UDALL, New Mexico JOHN HOEVEN, North Dakota
AL FRANKEN, Minnesota MIKE CRAPO, Idaho
MARK BEGICH, Alaska DEB FISCHER, Nebraska
BRIAN SCHATZ, Hawaii
HEIDI HEITKAMP, North Dakota
Mary J. Pavel, Majority Staff Director and Chief Counsel
Rhonda Harjo, Minority Deputy Chief Counsel
C O N T E N T S
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Page
Hearing held on January 29, 2014................................. 1
Statement of Senator Barrasso.................................... 2
Statement of Senator Begich...................................... 14
Statement of Senator Cantwell.................................... 1
Statement of Senator Murkowski................................... 5
Statement of Senator Tester...................................... 3
Witnesses
Allen, Hon. W. Ron, Chairman/CEO, Jamestown S'Klallam Tribe...... 18
Prepared statement........................................... 20
Isaac, Jerry, President, Tanana Chiefs Conference................ 33
Prepared statement........................................... 35
Peercy, Mickey, Executive Director of Self-Governance, Choctaw
Nation of Oklahoma............................................. 36
Prepared statement........................................... 38
Trahan, Hon. Ronald, Chairman, Confederated Salish and Kootenai
Tribes......................................................... 22
Prepared statement........................................... 24
Washburn, Hon. Kevin, Assistant Secretary--Indian Affairs, U.S.
Department of the Interior..................................... 6
Prepared statement........................................... 7
Appendix
Response to written questions submitted by Hon. Jon Tester to
Ronald Trahan.................................................. 46
Schatz, Hon. Brian, U.S. Senator from Hawaii, prepared statement. 45
Udall, Hon. Tom, U.S. Senator from New Mexico, prepared statement 45
S. 919, THE DEPARTMENT OF INTERIOR TRIBAL SELF-GOVERNANCE ACT OF 2013
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WEDNESDAY, JANUARY 29, 2014
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
628, Dirksen Senate Office Building, Hon. Maria Cantwell,
Chairwoman of the Committee, presiding.
OPENING STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
The Chairwoman. The Senate Indian Affairs Committee will
come to order.
Today we are doing two things. One, having a business
session on two legislative matters, the re-vote on Vince G.
Logan to be Special Trustee, Office of the Special Trustee, and
S. 1448 to provide for equitable compensation to the Spokane
Tribe of Indians of the Spokane Reservation for the use of
tribal land. That is legislation that we have had before in
this Committee and passed out of this Committee and passed out
of the Senate and the House, just never passed at the same
time. So we wanted to also give that an opportunity to be
moved.
So while we are waiting for members to come, I will go
ahead and give my opening statement as it relates to both of
those issues. And then we will see where we are as far as a
quorum.
Today, as I said, the Committee is here to consider two
legislative items and then have a legislative hearing on tribal
self-governance. We have a real good set of witnesses so I look
forward to hearing their comments as well.
But the Committee previously heard from Mr. Logan and the
Committee reported his nomination to the full Senate before the
session ended. Mr. Logan's nomination has since been
resubmitted for this session of Congress and it requires our
Committee to act again. Hopefully we can act judiciously today
and enact that.
The Special Trustee is charged with overseeing the
Department of the Interior's fulfillment of its trust
responsibilities to tribes and individual Indians. The Special
Trustee also implements any necessary trust reforms at the
Department of Interior and ensures that they are consistent
with the government's trust responsibility. Mr. Logan has shown
a great deal of passion for working with tribes and individual
Indians to manage their trust assets. The Committee appreciates
his willingness to take on this difficult role.
The second item, as I mentioned, was S. 1448, the Spokane
Tribe of Indians of the Spokane Reservation Equitable
Compensation Act. A version of this bill has been considered
previously by this Committee and some more versions have passed
out of the Senate and the House. So I am hopeful that in this
Congress this issue can finally be put to rest.
I originally introduced a version of this bill along with
my colleague from Washington, Senator Murray, on September 10,
2013, and the Committee held a legislative hearing receiving
testimony from both the Spokane Tribe and the Administration
supporting this bill. The bill would compensate the Spokane
Tribe for past and future use of land by the United States for
operation of the Grand Coulee Dam. And today the tribe has only
received $4,700 since the government flooded 1,000 acres of
Spokane tribal lands to construct and operate this dam. This
bill will finally provide the tribe with the equitable
compensation for their use of land.
I will be offering an amendment in the nature of a
substitute today that addresses how the annual payments to the
tribes will have no effect on current ratepayers. But before we
get to that, I might ask my colleague, the Vice Chairman of the
Committee, if he has any opening statements or comments that he
would like to make.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Just briefly. Thank you. Today we are
going to be considering your bill, the Spokane Equitable
Compensation Act, I know this is very important to you and to
the Spokane Tribe. So I appreciate you and your staff
continuing to work diligently to address the issues of the
bill, especially the cost. Thank you for that.
We are also going to consider the nomination of Mr. Logan
as Special Trustee. This position is important to the Federal
Government in carrying out its trust responsibility and Mr.
Logan's strong financial background, I believe, is going to
serve him well. If confirmed as Special Trustee, his experience
will be needed to help improve the Indian Trust Administration.
So again, I thank you for your leadership on both these
important matters.
The Chairwoman. Great. Thank you for that. I don't know if
any of my colleagues have anything else they want to comment
on, questions for staff?
Senator Barrasso. If I could, Madam Chair, just before I
relinquish my time, this business meeting and this hearing may
be the final one with you as Chair of this Committee, I
understand. So before I yield, I just want to state that it
really has been a privilege for me to serve with you on this
Committee and in this capacity. So I am hoping you remain with
us at least on the Committee. I am honored that I could serve
with the first woman to chair this Committee. You have set an
incredible standard for the Committee by providing clear,
competent and collegial leadership.
I also want to compliment your entire staff for working
closely with mine on matters before the Committee. So thank you
for the cooperation. It has come wonderfully. If your time
happens to be cut short as chair for good reason, I wish you
the very best in your new endeavors, whatever they may be, and
extend a heartfelt thanks to you for your diligent work in
improving the lives of Indian people. Thank you, Madam Chair.
The Chairwoman. Thank you. I want to thank the Vice Chair
for his leadership. I may be, what, the third member you have
worked with as ranking member? So I guess that says that we are
leaving a great deal up to you for continuity with the
Committee. And thank you for your comments.
I do believe this may well be my last hearing to chair as
Chair of this Committee. And I have to say it is with great
regret that I leave this position. Because it has only been a
short tenure here. And I have a great deal of passion for
Indian Country and the issues that affect them.
So I am definitely not leaving the Committee and I am not
leaving that passion. I am just turning the reins over to a
very qualified member of our Committee, Senator Tester, who I
am very excited, after being in Montana this summer, he and I,
visiting a lot of Indian Country, I am very excited to have him
take on this new role and responsibility. I am just going to
double my efforts in working with all of you on these important
issues, because there is still a lot to do.
I certainly want to thank my staff, because they have
worked hard on a variety of issues this year and have put forth
a variety of ideas. We appreciate that. Indian Country has
continually changed and improved in providing for new economic
opportunities for themselves and the communities around them.
That is what we are excited about and we want to keep working
to preserve those economic opportunities moving forward. So I
know there is a lot to do on that.
Senator Tester?
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. I just want to echo the ranking member's
appreciation for your leadership and your vision for this
Committee. I too hope that you stay on this Committee and
remain a valuable contributor to the conversation. Because I
think you have been great in the position of Chairman and the
poor soul that has to follow you has to live up to those
expectations.
So we thank you for your leadership and your vision.
The Chairwoman. Thank you. I appreciate that very much.
As I said, my heart is definitely heavy here, because I
have a great deal of passion for these issues and representing
29 different organizations from our region, these are very,
very important issues. We just have to keep pushing ahead.
I think we are one member short of the quorum that we need
to move out these two nominations and hopefully someone is on
their way to do that, on either side of the aisle. If I could,
I think I am just going to go ahead and read my opening
statement while they are here on the legislative hearing to
follow, which is, many of my colleagues know that the
importance of tribal self-governance has been a big issue for
this Committee. We are going to be hearing about the Tribal
Self-Governance Act of 2013.
S. 919, I think everybody understands the importance of the
Self-Determination Act of 1975, because the Act provided a
shift in the way the Federal Government provides services in
Indian Country, providing tribes with the authority to take
over those services and tailor them to meet their communities.
The self-governance provisions that have been added over the
past 25 years have provided tribes with greater flexibility and
control of how Federal funds are used in their communities and
tribal control of these programs provided greater job
opportunities and better services for tribal members.
We have not always had great success in improving
conditions in Indian Country over the years, but I think it is
safe to say that the policies of self-determination and self-
governance have been the most successful policies in U.S.
history in dealing with tribal governments. I am sure we are
going to hear more about that today.
Self-governance began with only seven tribes in 1991, now
over half of all federally-recognized tribes have self-
governance agreements with the Department of the Interior for
Indian Health Services. These 300 tribes are utilizing over
$400 million in Federal funding to provide services to their
communities. While the programs have been successful, there are
always improvements that can be made.
So S. 919 is the culmination of discussions between tribal
leaders and the Department of the Interior and other
stakeholders that would streamline the self-governance process.
Currently tribes must use different negotiation processes for
the Department of the Interior and Indian Health Services. S.
919 would make that a similar process.
This bill has many other common sense provisions relating
to the negotiation process, such as negotiating in good faith,
timelines on decision-making, providing specific reasons that
the Secretary of the Interior can decline the self-governance
compact or funding agreement. The Department of the Interior
testified in support of similar legislation in the House in the
last Congress, so I am eager to hear their thoughts on this
bill and how it continued to evolve and hear concerns by both
the tribes and the Administration.
I also want to thank our tribal witnesses for testifying
today. They represent tribes and tribal consortiums that have
been participating in self-governance for 20 years. So
certainly they have been the pioneers in this particular area.
I know that they can continue to suggest how we improve the
self-governance program as well.
I particularly want to thank Chairman Ron Allen of the
Jamestown S'Klallam Tribe, a real leader in the self-governance
movement. And I appreciate his traveling all this way to be
here for these discussions as well.
We will look forward to hearing from all of these members,
including the Honorable Ron Trahan from the Confederated Salish
and Kootenai Tribes in Montana and Jerry Isaac, President of
the Tanana Chiefs Conference, a consortium of Alaska Native
villages. And finally, we will hear form Mickey Peercy, the
Executive Director of self-governance for the Chocktaw Nation
of Oklahoma.
So again, I just want to say in advance of that part of our
hearing today that we will get to you in just a second.
[Whereupon, the Committee proceeded to other business:]
The Chairwoman. So now we are going to back to the hearing.
And I don't know if any of my other colleagues want to make an
opening statement. I mentioned the individuals that we are
going to be hearing from. In the first panel, we are going to
hear from Kevin Washburn. So if Kevin can come up to the table
for his part, and then I mentioned the names of those who will
be on the second panel. Do any of my other colleagues want to
make a statement? Yes, Senator Murkowski.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Madam Chairman. I will be
brief here. I want to thank you for scheduling the hearing
along with the Vice Chairman here.
Indian self-determination has been in my mind the most
successful Federal Indian policy, given the difficult history
that our Nation's indigenous people have had with the policies
here in the United States. When our tribes can manage their own
programs, I think they are better equipped to address the
disparities that exist within our Native populations.
I am pleased to be a co-sponsor of the bill. In Alaska, we
continue to experience the failed management of our lands from
thousands of miles away by Federal agencies here in D.C. Many
of our Native communities live right next to and within the
boundaries of our public lands, our national parks and our
wildlife refuges.
I have stated as the ranking member on the Energy and
Natural Resources Committee that I would like to see self-
governance agreements supported and expanded by the
Administration. In Alaska, the Department of Interior has the
authority to use self-governance agreements to contract out
many operations, functions with tribes at nearly all of the
public land units in the State. And yet we only have two of
these in existence.
So I have called on the National Park Service and U.S. Fish
and Wildlife, to recommit themselves to advocating and
advancing these agreements which not only help Alaska Natives
connect with their land but be part of subsistence management.
I understand that this bill preserves the authority of the
Secretary of the Interior to authorize the inclusion of non-BIA
programs and contracts and funding the agreements, local
management really means that our tribes can continue to
practice their customary and traditional hunting and fishing.
I would also like to make a special note and welcome
President Jerry Isaac of the Tanana Chiefs Conference. He has
termed out as president of TCC in March. Jerry, I would just
like to publicly thank you for your dedication, for your
commitment, for your leadership for the Tanana Chiefs region. I
have always valued your guidance and wisdom and know that you
will continue in that.
So we are pleased to have him here before the Committee
today. Thank you, Madam Chair.
The Chairwoman. Vice Chairman Barrasso?
Senator Barrasso. Thank you, Madam Chairwoman. I just want
to thank you for holding this hearing. The 1975 Act enacted by
Congress, the Indian Self-Determination and Education
Assistance Act, designed to advance a more effective dynamic
for Federal tribal relations. Since then, there have been
improvements in both the Federal tribal relationship and the
delivery of service. I think it is important that today we
consider S. 919, which I have co-sponsored with you.
This bill is intended to build upon those improvements,
enhance the delivery of services. It is the product of many
years of work by the tribes, by the Administration, by
Congress. I look forward to hearing how this bill addresses the
interests of stakeholders and improves services.
Thank you, Madam Chairwoman.
The Chairwoman. Thank you.
I want to add an addendum to my previous comments. It
certainly has been an honor working with you as the Vice
Chairman of this Committee. And it has been a smooth working
process. I appreciate your staff and the collaboration between
our offices. So I can definitely say that Indian Country has
had a good partner in working through your office. So we
certainly appreciate working with you in the future on this
Committee.
So thank you. We decided that we both had a love for
``yes.'' And I don't mean just voting aye, but a love for an
organization that someday will make it into the rock and roll
hall of fame called yes.
But anyway, we will now turn to the Honorable Kevin
Washburn to hear his testimony from the Department of Interior.
Thank you for being here today as the Assistant Secretary for
Indian Affairs. If you could just give us your thoughts on
where we need to go on self-governance.
STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT
SECRETARY--INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Mr. Washburn. Thank you, Madam Chair, Vice Chairman and
members of the Committee. It is an honor to be here, as usual,
thank you.
Let me echo the thanks, Madam Chair, for your service. It
is really appropriate that you actually chaired this hearing,
because the original Self-Determination bill in 1975 was
sponsored by Scoop Jackson. And Mark Trahant has written a
terrific little book about the passage of that. So it is nice
to have someone from the State of Washington, a Senator from
the State of Washington presiding over this.
The Chairwoman. If I could just interject, we certainly
lament the passing of Forrest Gerard, who is featured in that
book as one of the pioneers of Indian policy here in
Washington, D.C., and was a great hero. That book talks about
all that he did to move Indian policy in a new direction. He
just recently passed, so I wanted everybody to know how
appreciative we were of his service to our Country.
Mr. Washburn. Thank you, Chairwoman. That underscores the
importance of all the staff around the room, because that is
often who helps get all of this done. So thank you. And his
passing was tough. He was the first person to have held my job,
actually, during the Carter Administration, when this position
was elevated to an assistant secretary position.
He died over the holidays, and I was able to go out to the
funeral. It was a sad day, but he was well celebrated and he
accomplished a lot, not the least of which was turning this
whole ship of state toward self-determination, which has been,
as several of you said, the most successful policy toward
American Indian tribes this Nation has ever had. It was started
in 1975 with the Indian Self-Determination Education Assistance
Act, which was updated in 1998, when the self-governance
demonstration project was created to allow compacts with tribes
that were broader than just contracts. That was made permanent
in 1994.
As you said, Madam Chair, in your opening statement, we
have a lot of tribes that are now engaged in the self-
governance effort. And frankly, we are doing a lot better job
meeting the trust responsibility when it is Indian tribes that
are providing those services directly to their people, rather
than through Federal officials.
And I think that is largely because of accountability.
Tribal leaders are just much more accountable to their
populations and they know better the needs of their population
than general schedule Federal employees ever could, even though
everybody at the BIA and the BIE and IHS and other agencies who
often have tribes' best interests at heart, they can't ever
know the tribes' best interests as well as their own elected
officials do.
So I believe that that accountability has made this a very
good regime. I believe it is now time to improve the regime
even more and I think that is what S. 919 does. So I ask you
all for your support of S. 919.
I don't need to go a whole lot deeper than that. I have
written testimony and I have read the very good testimony by
each of the other witnesses, some of whom have been at the
forefront of self-determination and self-governance for a very,
very long time. I am grateful for their work.
Aside from accountability, I think the other thing that
self-governance brings to tribes is flexibility. Tribes need
flexibility in how to provide services, and the self-governance
compacts provide that. And S. 919 will enhance that flexibility
even more.
I have a couple of members of my staff here who work really
hard on these issues, Hank Ortiz and Sharee Freeman. They are
the ones who work where the rubber meets the road on these
issues. And we are supportive of S. 919. We are working on some
little tweaks to the language to address concerns by the IHS
and Bureau of Reclamation. But we are supportive of the
legislation overall and certainly the intention of the
legislation.
[The prepared statement of Mr. Washburn follows:]
Prepared Statement of Hon. Kevin Washburn, Assistant Secretary--Indian
Affairs, U.S. Department of the Interior
Good afternoon, Chairwoman Cantwell, Vice Chair Barrasso, and
members of the Committee. My name is Kevin Washburn. I am the Assistant
Secretary for Indian Affairs at the Department of the Interior
(Department). Thank you for the opportunity to provide testimony on
behalf of the Department on S. 919, the Department of the Interior
Tribal Self-Governance Act of 2013.
S. 919 seeks to amend both Title I and Title IV of the Indian Self-
Determination and Education Assistance Act (ISDEAA) (25 U.S.C. 450
et seq.). In more than 200 years of federal Indian policy, the policies
of self-determination and self-governance that have developed during
the past four decades have produced, by far, the most successful
relationship between the United States and its tribes. These policies
have also increased tribal governmental capacities and improved
services to Indian people.
The Administration strongly supports the principles of self-
determination and self-governance, and consistent with this support we
believe the ISDEAA should be strengthened to make it work better for
the Federal Government and for Indian tribal governments. Accordingly,
the Administration supports S. 919.
President Obama recognizes that federally recognized Indian tribes
are sovereign, self-governing political entities that have a
government-to-government relationship with the United States, as
expressly recognized in the United States Constitution. Secretary
Jewell, too, is a strong supporter of the principle of tribal self-
determination, the principles of the ISDEAA, and is committed to
working to further tribal self-governance.
In 1975, the Congress enacted the ISDEAA, Pub. L. No. 93-638. Title
I allows a tribe to contract individual programs away from the
Department and operate the programs as, in essence, tribal programs.
Title I also gives a tribe the latitude to redesign and rebudget
Federal programs that it assumes.
In 1988, Congress enacted Title III of the ISDEAA as a
demonstration project, which allowed an Indian tribe to contract
several programs from the Department, and allowed Indian tribes to
reallocate funds and redesign those programs to best benefit their
communities. In 1994, Congress made the demonstration project permanent
in Title IV of the ISDEAA, Pub. L. No. 103-413.
Title IV provides resources to Indian tribes, enabling them to
plan, conduct, consolidate, and administer programs, services,
functions, and activities for tribal citizens according to priorities
established by their tribal governments. Under Title I and Title IV,
Indian tribes have greater control and flexibility in the use of these
funds, reduced reporting requirements, and the authority to redesign or
consolidate programs, services, functions, and activities. Title I and
Title IV generally allow Indian tribes to reallocate funds during the
year and carry over unexpended funds into the next fiscal year without
Secretarial approval. As a result, these funds can be used with more
flexibility to address each Indian tribe's unique condition.
Funding agreements under the ISDEAA have helped to strengthen
government-to-government relationships with Indian tribes. Self-
determination and self-governance tribes have been good managers of the
programs they have undertaken. Many times, tribal governments add their
own resources to the programs and are able to fashion programs to meet
their needs and the particular needs of their members. Tribal
governments are often better suited than the Federal Government to
address the changing needs of their members. Indian tribal governments
have often observed that, when they are working under self-
determination contracts and self-governance funding agreements, they
are not viewed by the Federal Government as just another Federal
contractor, but rather that their work reflects a true government-to-
government relationship characterized by mutually agreed-to
responsibilities and tribal empowerment.
For nearly a decade, Indian tribes have asked Congress to update
Title I and Title IV to address various issues, to include more non-BIA
programs, and to streamline the process of negotiating annual funding
agreements. S. 919 goes a long way toward accomplishing these goals.
Non-BIA programs, however, often have different characteristics that
suggest a more tailored approach to the specific programs. For example,
the Bureau of Reclamation uses a methodology in its budget formulation
that is different from BIA's methodology because of the nature of
Reclamation's appropriations for large projects. Section 202 of S. 919
is intended to address those differences, and the Department looks
forward to working with the Committee to ensure section 202 meets that
objective.
The Department recognizes the need for the self-determination and
self-governance programs to evolve to improve and increase the
frequency of funding agreements. The Administration is proud to report
that, after a series of negotiations with tribal stakeholders that
began over three years ago, we reached agreement on a number of issues
and the language is embodied in S. 919. Our agreement on this critical
legislative priority for Indian County reflects the Administration's
commitment to restore the integrity of the government-to-government
relationship with Tribal Nations. The Native American communities in
this country confront many challenges, and this Administration is
committed to working with Tribal Nations to create opportunities for
all of our communities to thrive and flourish.
This concludes my prepared statement. I will be happy to answer any
questions the Committee may have.
The Chairwoman. Thank you for that testimony. I do have a
question for you about various tribes and why it has worked in
some areas and why others have been more reluctant. But I have
to ask you about this contract support question, because we had
a little bit of success in the fiscal year 2014 budget. I want
to thank my colleague, Senator Murkowski, because she has been
a loud voice in making sure that our budget reflected not
having a cap.
So my question is, does the Department have a plan on how
it is going to pay contract support costs moving forward since
there is no longer a cap in place?
Mr. Washburn. Yes, Madam Chair, we are working on a plan.
One of the things we need to do, so the process for us now is
to develop an operating plan that we submit to OMB and then
back to the Appropriations Committee to explain how we are
going to operate for the rest of the year on the Omnibus Bill.
We are wrestling with that, and we are consulting with tribes
about that. We have a call on Monday, both IHS and the Indian
Affairs at Interior have a call with tribal leaders on Monday,
set up by the White House, to consult about that.
The Administration had rolled out a plan to cap that those
contract support costs, which was done without any consultation
with tribes and was soundly rejected by tribes and by Congress.
The Chairwoman. And the courts.
Mr. Washburn. Well, sure, and the courts, too in some
respects.
So we are trying to figure out how to go forward. Honestly,
the Appropriations bill punted the issue back to us. They
basically said, we are not going to adopt caps, and we are
remanding the issue back to you to figure out how to meet
contract support costs.
I personally know how important contract support costs are
to the ability of tribes to do these jobs that we ask them to
do. And I think that we would like to get to a place where we
can provide full contract support cost funding. We think we are
headed in that direction. But we need to consult with tribes
about how that will work, and we are anxious to start that and
then to submit our operating plan and get approval.
The Chairwoman. The reason I am bringing this up now, I
certainly want to emphasize the success that we have had,
thanks again to everybody on this Committee and I think a
previous hearing trying to escalate the issue with those in the
Administration to understand the court decision and where we
have been. Certainly taking off the cap allows for a solution
to be had. I don't think it is just kicking the problem back,
saying let's consult. It's basically us saying, let's make sure
that there is fair compensation.
The reason I am bringing this up is because I have detected
some tribes in their discussions and thoughts about self-
governance thinking, well, I like the formula that I have now.
People are concerned, if they move toward self-governance, are
they going to get the aid and support, or are you going to have
another contract support issue come up where you're not getting
the full compensation to do the job and responsibilities you
are asked for.
Do you see that with tribes? Do you think that is why there
is some disparity with tribes on self-governance issues?
Mr. Washburn. Yes, Madam Chair. There are a lot of
different views from the tribes out there about how we handle
these issues. And we need to hear all of them before we decide.
The Appropriations Committee, their language that they are
remanding the issue back to us to deal with, and that is the
language they put in the report. So we are trying to figure
that out. We know the tribes need contract support cost
payments and we work with the Indian Health Service because
they face the same issue. We have different challenges
regarding these issues than the IHS has, but we are trying to
work with them at the request of tribes and their counsel to
make sure we coordinate with IHS as we address these issues. So
we will be doing consultation with tribes to figure out how to
go forward, not just for this year, fiscal year 2014, but also
as we prepare the FY 2015 budget, which is currently in
process.
The Chairwoman. Do you think there are tribes that don't
move forward on self-governance because they are concerned
about what that means as far as compensation?
Mr. Washburn. Yes, Madam Chair. We actually think that once
it is clear that every tribe gets contract support costs, no
questions, that we are going to draw more tribes to self-
governance because they can count on that money. And so we have
to plan for that, too. So we are planning for that in our
budget process, planning for the notion that maybe there will
be more tribes that are engaged in self-governance, because
they can now count on getting contract support costs that they
need to execute these contracts and operate these contracts.
The Chairwoman. Thank you.
Vice Chairman Barrasso?
Senator Barrasso. Thank you, good to see you again. I
appreciate your being here.
The Department of the Interior administers a wide spectrum
of programs and projects that serve Indian communities. Section
202 of the bill contains limitations on modifying or affecting
projects not included in the Indian Self-Determination and
Education Assistance Act, including water settlements.
So your testimony suggested that more work was needed on
this specific provision. I wonder what recommendations you
might have for us in terms of refining that provision.
Mr. Washburn. Thank you, Vice Chair. We are working with
your staff, Senate Committee staff, to try and figure out what
that language would be. The problem with the language is that
different lawyers read it to mean different things. We feel
like we need to get to clarity.
I think everybody agrees with the long-term intention,
where we are going with this. But if the lawyers can't all
agree on what it means, then we need to make it more clear. So
we are working on that.
So I don't have specific language for you, but our lawyers
and your lawyers are talking about trying to clarify that
language.
Senator Barrasso. I appreciate that. Just one last
question. During the 111th Congress, in examining a prior but
similar bill to this, the Congressional Budget Office thought
that implementation would cost about a million dollars a year
over five years. They indicated the department would use that
extra million dollars for you to hire additional staff, to make
equipment upgrades.
Do you see the Administration believing that this
additional funding is necessary?
Mr. Washburn. Vice Chair, I am not sure if it is necessary
or not. But I will tell you, that is a fairly modest investment
in what has been the most successful Federal Indian policy
towards tribes ever in our history. So if that is the cost, I
think it is something that we would be willing to bear.
We have a really wonderful Office of Self-Governance in the
Indian Affairs area of Interior, run by Sharee Freeman, who is
here with me today. She runs a very good staff, and we have
actually just authorized her to hire two more staff because we
need to be serving tribes better, we need to be getting money
out quicker to tribes and that sort of thing under these
compacts.
So that office frankly needs to grow a little bit more,
probably, to help tribes get their appropriations, their money
quicker, so that they can do the job better. And so we are
doing a little bit of hiring in that area already.
I don't know exactly what the costs will be, but if there
is a modest increase in investment, it is well worth it, I
believe.
Senator Barrasso. Thank you. Thank you, Madam Chairwoman.
The Chairwoman. Thank you. Senator Tester?
Senator Tester. Thank you, Madam Chair.
Assistant Secretary Washburn, and I want to welcome the
members on the next panel, one of which is Chairman Ron Trahan
from the Confederated Salish and Kootenai Tribes of Montana.
Thank you for making the long haul here, and we look forward to
what you have to say.
Secretary Washburn, we have heard statements from tribal
leaders that the BIA is more difficult to navigate when
compared to IHS, when it comes to entering into contracts.
Could you tell us how S. 919 may better enable the BIA to
respond to the needs of tribal governments?
Mr. Washburn. I am not going to respond as to whether it is
a fair criticism or not, except to note that the Indian Health
Service has one function, one very important function, which is
health care. And we have to do everything else, from water and
irrigation to law enforcement to welfare assistance to housing
to roads. It runs the gamut, education to realty.
So we bring different challenges to these issues. I do
believe that S. 919 will make us function, the tribes prefer
the way IHS functions to the way we function.
Senator Tester. Correct.
Mr. Washburn. And this will make us function more like IHS
does. And I think that is one of the things that really
benefits the tribes, because there is some uniformity there. It
is going to be more difficult than it is for IHS, because we
have so many more different functions and different kinds of
activities that we do.
But I think that it will, if it works better for tribes,
ultimately it works better for us, because Federal Indian
policy works better and the services get to the people better.
So it is going to be a little bit more of a challenge to us,
but we can live with that.
Senator Tester. Okay. Looking at it from a tribal
leadership standpoint, what kind of flexibility will S. 919
provide tribal leadership as tribes try to assert more home
rule?
Mr. Washburn. One of the things it does is it puts much
more of the onus on the Federal Government to act in a timely
manner. It puts the onus on us to negotiate in good faith,
which, there shouldn't have to be a law to say that when we
negotiate we have to do it in good faith, but it will require
that. So it doesn't matter who the Administration is, there
will always be good faith negotiating or presumably a legal
remedy if there is not.
So that is sort of the big thing that it helps with. It
will require us to act in a much more timely way, which
ultimately will get money to tribes quicker.
Senator Tester. Beside supporting S. 919, what can you tell
us that the Obama Administration is doing to help support more
self-governance in Indian Country?
Mr. Washburn. Well, the FTEs that I talked about, we are
increasing the size of that office. And frankly, part of the
reason we are doing that is because Sharee Freeman, the
director of that office, when I asked her how can we increase
the number of tribes engaged in self-governance, she said, I
need to get on the road. She said she needs to get on the road
to talk to tribes and to get out to do some evangelizing, do
some recruiting, basically. But her staff is so thin that she
can't be away from the office to do that.
So she has vowed to me that if I can get her more staff in
the office, she will get out on the road to talk to more tribes
to tell them the advantages of self-governance and ultimately
we think that that will improve.
She has also been working really hard to improve training
on self-governance issues. We have even sort of been looking
at, in addition to S. 919, what is the next stage for self-
governance? What does self-governance 2.0 look like? And Ms.
Freeman has engaged the State Department to see, when we are
providing aid to foreign countries, how does that work. We have
been trying to be very creative in trying to figure out what
the next development of self-governance should be.
Senator Tester. Do you have the budgetary ability? In other
words, do you have the dollars to bring some additional staff
on?
Mr. Washburn. We are finding ways to accomplish that.
Mostly stealing from Peter to pay Paul. But this is one of the
most important things we do. So we need to find the staff to be
able to fix it.
Senator Tester. Sounds good. Thank you. I appreciate your
work.
Mr. Washburn. Thank you.
The Chairwoman. Senator Murkowski?
Senator Murkowski. Thank you, Madam Chairman.
Welcome, Dr. Washburn. I think you have the problem solved
here in terms of how this Administration can do more when it
comes to encouraging tribal self-governance. It goes back to
the question that the Chairwoman asked in terms of full support
for contract support costs. You mentioned that if tribes know
that they can count on this, if they know that they are going
to be reimbursed fully, if the uncertainty that they have seen
is eliminated, I am not so convinced that you need to go on the
road with a staff to try to sell it. I think it will sell
itself.
But when you have uncertainty because you don't know
whether you are going to get that reimbursement, if you think
that that reimbursement is going to be 70 cents on the dollar,
you are going to have tribes that are saying, I am going to sit
back on this for a while.
So I would suggest that as you engage in the consultation,
which I think is absolutely appropriate, that it be a very,
very clear message to our tribes that the commitment that has
been made is a commitment for full contract support costs, as
the courts have directed, as the acts require. So I would
certainly think that is how you answer the question of Senator
Tester there in terms of what can be done.
I mentioned in my comments that there is a fair amount of
disappointment in Alaska with the management of fish and
wildlife and of public lands in the State. I have called for an
expansion of these tribal self-governance agreements within our
Federal agencies, specifically the national parks and national
wildlife refuges. How do you feel about this? Do you think
there is a role for these Federal agencies in working, whether
it is with TCC or other tribes in terms of management of the
lands in their areas?
Mr. Washburn. Yes, Madam Senator. I actually think that no
one knows the lands better than the Alaska Natives do. So they
can be trusted to help manage those lands themselves. We don't
currently have trust lands in Alaska, so it is mostly other
Federal lands. I think that we have to look to Alaska Natives
to help us manage those lands, and they can do a good job. They
are very competent, they know those lands well.
And especially at a time now where with climate change,
those lands are changing, as the ice is changing dramatically.
So I think that is right, I think there are a lot of
institutions and organizations in Alaska that can do this job
well.
Almost all of the Indian Health Service activity in Alaska,
and maybe all of it, is contracted to tribes and tribal
consortia. And they do a great job. So I think the other parts
of the Federal Government should trust that they can work well
with Alaska Natives.
Senator Murkowski. What I think it is an important example
to look to is what we have done on the health side. I think we
have done a remarkable job. And it is these partnerships that
have worked very effectively to the benefit of Alaska's native
peoples when it comes to the health care. I think we can do
more again when it comes to management of our public lands, and
I would hope that our office would be working with us as we
work to expand that.
Another issue that I have raised, and have asked for
consideration by this Administration is ensuring that there is
a place for Alaska Native residents on the Federal subsistence
board, basically putting more subsistence users on that Federal
subsistence board. What are your thoughts on that?
Mr. Washburn. I know that they looked at this board
carefully in 2010, I believe, and suggested some changes to it.
That was back when Secretary Salazar was in charge. And we do
have, we have had Alaska Native leadership chairing the board.
I think that is very important.
The board is mostly composed of land management agencies
and then the BIA. We are not a land management agency currently
in Alaska. Then we have the citizen members of the board, one
of whom is Alaska Native and chairs the board. So I wouldn't
presume to say what the final composition of the board should
be, but I think that the board's work is very, very important
and Alaska Natives need to have a strong voice, because that is
really who the board serves.
Senator Murkowski. I would ask you to take a look at that
as an issue as well as the rural determination process. There
is of course a great deal of concern that this process for
determining whether or not a village is rural or not is a fair
and adequate process. I have asked for review of that, too. So
several things I think we can be working on to try to ensure
that when it comes to Alaska Natives and tribal self-
governance, self-determination that we are really fulfilling
that intent to the maximum extent.
Just one last thing. As you know, I was extremely,
extremely disappointed in Secretary of the Interior's decision
as it related to King Cove. I felt that the report that was
made public by you after your visit was inadequate and did not
adequately address the trust responsibility that I believe the
DOI has to Alaska Native residents there in King Cove. So I
would ask that we set up a meeting in my office or I will come
to your office so we can discuss this further. If we can do it
before the President's Day recess, I would appreciate any
consideration you would give. I am sorry to put you on the spot
and I don't expect you to answer me as to when we can do it,
but I would like to have that sit-down with you.
Mr. Washburn. I would be happy to make that a priority,
Senator Murkowski. The trust responsibility, I understand your
position, let me just say that I did get to weigh in, and
weighed in very strongly after hearing from the community of
King Cove. I think the trust responsibility is something that
we share, the Congress and the Executive Branch share. So I
would push back a little bit, because if the Congress had made
more clear what the trust responsibility means in that context,
it might have produced a different result. But we certainly
have a trust responsibility too, and I am happy to talk more
about that.
Senator Murkowski. I look forward to that visit. Thank you,
Madam Chair.
The Chairwoman. Senator Begich?
STATEMENT OF HON. MARK BEGICH,
U.S. SENATOR FROM ALASKA
Senator Begich. Thank you very much, Madam Chair. I wasn't
here at the beginning, but I first want to say, from my limited
time on here so far, thank you for the role you have played as
Chair of the Committee. I greatly appreciate the guidance you
have given me as a new member on the Committee. So thank you
for everything you have been able to do here.
Let me also say, I am not sure what my time will be, but to
Jerry, I may be here, I may not be, but I want to say thank you
for coming all the way from Alaska. It is always good to have
Alaskans here, where it is colder here than there, which is
hard to explain to people. When I got a photo today of green
grass in Anchorage, you have to wonder what is going on. So I
appreciate your being here.
I think we all agree that S. 919 is an important piece of
legislation. But I want to cut to a couple of pieces, and
again, always good to see you and be able to ask you a few
questions and kind of follow up on what some other members have
talked about. Obviously contract support costs are always on
our mind. I think BIA is moving forward, I think the court has
ruled and you are moving forward on settlement issues.
But the challenge is this, I guess, when you look at the
court's ruling, at least in the case that when they ruled they
said between fiscal year 1994 and 2001, appropriations covered
only between 77 and 92 percent of the tribe's aggregated
contract support costs. So it begs the question, and it will
lead to my larger question, and that is, if we know what you
paid and we know what you haven't paid, because it is a
mathematical issue here, but it seems based on the timetables
that it will take to settle some of these issues, it could take
a couple of years.
The question I have for you is the shortfall reports that
are given to Congress annually, which in theory, and you can
correct me if I am wrong here, the shortfall reports say here
is what we are falling short in paying. In theory those are
factual, based on data, so we know if you paid X and the
shortfall report says this, then that is what is owed. So why
is it going to take so long to settle these when we know what
is owed? Because I can only assume those reports are correct.
Because those were submitted to Congress.
So help me understand this dilemma, because what I keep
hearing from folks as well, they want to re-examine what the
costs really were. But then I would argue if that is the case,
the shortfall reports were useless. But they are shortfall
reports. And the court then says, here is what has been paid,
so it seems like a simple math problem, then pay what is owed.
Help me understand that.
Mr. Washburn. Thank you, Senator Begich. And I won't do
that.
Senator Begich. But I need you to do that.
[Laughter.]
Senator Washburn. It is fairly complicated. Let me just say
this. When we report an aggregate shortfall report, it doesn't
say how much each tribe is owed. So that is a big aggregate.
Senator Begich. Let me pause you there. But you then agree
the total amount in those reports is what is short, what is
owed? You just said that, right?
Mr. Washburn. Well, I don't know if that is, this is a
matter in litigation so I am on thin ice here. I will get in
trouble whatever I say, basically.
Senator Begich. There is thick ice in D.C., there is thin
ice in Alaska right now.
[Laughter.]
Mr. Washburn. Let me say this. At the BIA we are working
through a process with plaintiffs' counsel to statistically
sample. There is a big question about whether the tribes have
to prove up their actual expenditures or not. And there is a
big debate about that. The tribes say, well, we didn't
necessarily have actual expenditures, because we didn't get the
money to spend. And that is a fair point. But under ordinary
Federal contracting law, if you can't show that you incurred a
cost, then you can't get reimbursement for that cost, I gather.
And I am probably oversimplifying things, but these are the
ways I understand this.
I will tell you that I think S. 919 will help solve this
problem going forward, because it will make really clear which
Federal contracting laws apply to tribes and which don't.
Senator Begich. I appreciate that, but I guess my point is,
and I know you are trying to figure out and describe this in
the public arena when we are in litigation issues. But can I
ask you this, then, can you submit to me or to the Committee,
whatever would be the appropriate channel, but I would like to
get a more definitive timetable of how you are going to settle
these. Because my worry is that these will just go on and on
and on. The Supreme Court has ruled, we know the amounts, or we
know the potential aggregate.
Then I would like a comment at some point, not necessarily
now but in writing, if you don't agree with the total aggregate
in their shortfall reports, in other words, at the end of the
day, if we settle with tribes and it is this much money based
on those reports, then that should be easy. But if you are
saying those may not be the right numbers, then we have to
figure out why those reports are being submitted and what is
the better way to approach this.
Because really, first off, we never want to see those
reports, because you should be paying 100 percent. But I am a
little perplexed by that. Because when we see those reports, we
assume this is what is owed. But if you are saying that is not
exactly right, there are some variances, then that makes me,
especially as an appropriator, a little wondering what is going
on there. So you have to help me there. You don't have to do it
now, but if you can kind of think about that issue.
Then the last, and if this puts you on the spot you don't
have to answer it. But I just want to follow up on what Senator
Murkowski said, especially about King Cove. I sensed, the
comment you made is if the Congress had defined the trust
relationship differently, the outcome may have been different.
What did you mean by that? And why I say that is because, did
you have a different opinion on those conversations on King
Cove? And if you don't want to answer, I understand. But I
sense that there might have been some differences here, and if
there is, what were they? Then second, what do we have to
change to give you that authority if the outcome will be
different. I think that is kind of the goal.
Mr. Washburn. Senator Murkowski met with me before I went
to King Cove and very clearly asked me to look at sort of the
trust responsibility implications of what we were doing, and
her staff. We met with a lot of her staff and her staff were
very thoughtful. So I looked at the statute, and it was part of
an omnibus statute, this portion about Isenbeck and King Cove.
The omnibus statute had several provisions. It was a big public
lands act.
Senator Begich. Public lands went in 2009.
Mr. Washburn. That is right. And the trust responsibility
was discussed in other places with regard to tribes. But the
trust responsibility was not mentioned once with regard to the
King Cove community at Isenbeck. It is Congress that first
defines the trust responsibility. It is up to you, it is up to
Congress to say what does the trust responsibility mean in any
given context.
So that is what I found when I looked. When I looked at
what does the trust responsibility mean here, I learned that we
had no guidance from Congress whatsoever on that point. It is
Congress' duty in the first instance to define the trust
responsibility.
We certainly have a trust responsibility, too. Executive
Branch bears that responsibility. But it is formally defined by
Congress, and Congress has plenary authority over Indian
Affairs. So if it is defined by Congress, we have to follow
that. It was utterly absent in that statute.
So I would invite you the next time, if you want to make
sure you get this done, you talk specifically about the trust
responsibility to King Cove. This is a difficult issue. There
are strong feelings on both sides of it. The Secretary I don't
think was happy to be in the position of having to make this
very difficult decision, which places very important values
against one another. And I am frankly sorry to have to be in a
position to make decisions like that. These are the hardest
decisions we make. Because they make a real difference in
people's lives and lots of people care about them.
So that is what I was getting at.
Senator Begich. Thank you very much. And as always, you are
great on testimony. Thank you for always coming to Alaska.
Mr. Washburn. Thank you.
The Chairwoman. Thank you, and again, Assistant Secretary
Washburn, thank you for being here. I don't think that any of
us conspired with our staff to make this all about contract
support. I think it is just a natural continuation of our quest
to make sure that this issue is rectified. Both of my
colleagues, Senator Murkowski and Senator Begich, invited me to
Alaska this summer and I went. I have to say that the Alaska
Native Medical Center is a state of the art facility, not just
in Indian Country, but in the entire United States. They
deserve their contract support and they are leading the way,
juxtaposed to an IHS-run facility that is not necessarily
innovating, meeting the needs of the community. So those are
the two paths and choices, move toward the kind of innovation
that is being delivered in Indian Country and in self-
governance. So we really have to rectify this issue.
But I just wanted you to know, I don't think we all
conspired, it is just a natural outflow. This is part of this
discussion of self-governance and it is the complaints and
concerns that we have heard before. I am sure the next panel is
going to tell us a lot about just the day to day details of the
success of self-governance. But we have to get this larger
issue out from hanging over the self-governance issue.
Again, thank you for being here.
Mr. Washburn. It is my honor. Thank you.
The Chairwoman. So we will hear now from our second panel
of witnesses, as I have introduced them previously. We are so
thankful for them being here.
Ron Allen from the Jamestown S'Klallam Tribe; the Honorable
Ron Trahan from the Salish Kootenai Tribes of Montana; Jerry
Isaac, from the Tanana Chiefs Conference of Fairbanks, Alaska;
and Mr. Mickey Peercy, Executive Director for Self-Governance
for the Choctaw Nation.
We are going to start with you, Mr. Allen. Again, thank you
for being here, thank you for your leadership on the self-
governance issue overall.
STATEMENT OF HON. W. RON ALLEN, CHAIRMAN/CEO, JAMESTOWN
S'KLALLAM TRIBE
Mr. Allen. Thank you, Madam Chair.
It is always an honor and a privilege to come before this
Committee to testify on behalf of any legislation that affects
the welfare and the interest of Indian Country, and my tribe
specifically. I do want to say that I am disappointed to hear
that you are moving on as the Chair. You have done a great job
on behalf of Indian Country and we are very proud of you,
coming from Washington State, knowing the 29 tribes of
Washington State, that you know our issues and you know the
issues of Indian Country.
I know it is almost like drinking from a fire hose when you
deal with the complex issues of Indian Country, from Alaska to
Florida. Senator Tester, I am glad to hear that you are going
to step in. I know you are a great champion as well. And
Senator Murkowski as well, on the Republican side, you have
been a staunch supporter of Indian Country and our sovereignty.
And we deeply appreciate your leadership as well.
I am here to testify on behalf of S. 919. This is the
culmination of a long negotiation between the tribes and the
Congress and the Administration. It is a bill that has a lot of
blood, sweat and tears written all over it. I want to thank you
and your staff on both sides of the aisle who have worked very
hard for us, with us, to make this thing happen. Assistant
Secretary Washburn and his staff have been deeply engaged with
us.
For the most part, on the BIA side, those issues were
worked out a long time ago. The heart of the matter ended up
being more on the non-BIA side in clarifying some issues that
you will see identified in Section 202.
But the bottom line is that this this bill brings Title 4
in line with Title 5. It continues on with the empowerment of
tribal governments. I want to pause here and say, just the
backdrop of our history in America and the family of
governments, Indian governments were the first governments
before this Union was even formed. We are recognized in the
Constitution.
So it took a lot of generations and a lot of years for the
true relationship between Indian governments and the United
States and the sister governments throughout America to have a
respectful relationship to advance the interests of Indian
Country and all the people that we serve.
This bill is about that. It is about empowering tribal
governments. Yes, it affects all of our programs, natural
resources, law enforcement, education and so forth. And that is
our duty, just like it is your duty to serve all of America and
all of its interests. We just happen to be smaller, including
our largest tribe, the Navajo Nation, that now is venturing
into self-governance as well.
So as you noted, there are well over half the tribes now
that are in self-governance and moving forward. This bill is
going to help make that happen. It is going to clean up the
relationship. It is going to improve the process. It is going
to clarify the relationship with regard to construction
projects that are in place.
And last but not least, it is going to make sure that it
protects the administrative responsibilities with regard to
non-BIA programs and with regard to legislation that affects
water rights issues, as complex as they may be, throughout
Indian Country. That was one of the tough issues that we had to
deal with, and we think that we have worked out some language
that addresses that issue and protects the interests of both
the tribes and the interests of the Administration as it
carries out its responsibilities in that mater.
Self-governance really, when I reflect back, I was at the
first hearing in 1987, as a result of the exposes that came out
of the fraud, abuse, misuse of Federal funds. And ended up
culminating in self-governance and the approval of Title 4 in
1994. A fascinating experience, and it has been a fascinating
experience ever since then. It is an unequivocal success, the
flexibility, the ability for us to take these very limited
Federal resources and use them more efficiently and more
effectively to address our communities, as this is the success
of self-governance. It is the empowerment, it is the trust
between the United States and the Indian governments and our
leadership that we know how to use these resources, consistent
with their intent and as they were applied to our people.
It doesn't always work, one size fit all, Washington, D.C.,
you folks certainly know that. This allows us to be able to
tailor it to tribe in Montana, tribes in Washington, tribes in
Alaska and so forth across Indian Country. That flexibility
that Kevin Washburn referred to, the strengthening of our
planning and management issues, affirming of our tribal
sovereignty is a critical issue that definitely helps us move
our agenda forward.
It is not perfect. It doesn't address all of our issues.
But it does move the agenda forward, it moves it forward
constructively, and I think as a result of it, as you have
asked earlier in opening remarks and that dialogue with
Assistant Secretary Washburn, that is it going to result in
more tribes getting engaged with the self-governance process
and forum.
I think that it is important to know that it allows us to
use these resources to leverage other resources, including
Federal resources that we weren't able to do before. If tribes
don't have resources to leverage other Federal resources,
sometimes they don't have an option and opportunity. This
provides them that option and that opportunity.
Final offer, and some of the provisions that are in my
testimony, and you can review them at your pleasure, will show
the different steps that allow us to improve the negotiations.
Part of the problems, sometimes tribes can't find out what is
their fair share of a program A, B and C. They need to identify
that so they are comfortable and that people are comfortable
that they can take over that program and administer it in the
interest of the tribe and the people that they serve.
I will conclude with, this is an important chapter we are
turning. I really hope that we can move this legislation
forward, that the House has a complementary piece of
legislation and that this year we can finally see Title 4 be
consistent with Title 5.
Thank you, Madam Chair.
[The prepared statement of Mr. Allen follows:]
Prepared Statement of Hon. W. Ron Allen, Chairman/CEO, Jamestown
S'Klallam Tribe
Good afternoon. Thank you for the opportunity to be here today to
testify once again on this critical legislation. My name is W. Ron
Allen and I am the Chairman/CEO of the Jamestown S'Klallam Tribe
located in Washington State. I am also the Chairman of the Department
of the Interior (DOI) Self-Governance Advisory Committee (SGAC), and I
offer my testimony today in both capacities. Collectively, I am
representing well over 300 Tribes that participate in Self-Governance
within DOI and the Department of Health and Human Services (HHS),
Indian Health Service (IHS).
I am pleased to testify in support of S. 919, a bill to strengthen
Indian Tribes' opportunities for Self-Governance by amending Title IV
of the Indian Self-Determination and Education Assistance Act (ISDEAA)
(P.L. 93-638, as amended). The proposed Title IV amendments advance
three basic goals:
To bring Title IV up to par with Title V, the permanent
Self-Governance authority within HHS;
To clean up the construction provisions of Title IV; and
To maintain unchanged the discretionary authority to enter
Self-Governance agreements with non-BIA agencies in Interior.
Before expanding on the need for these critical amendments, I will
talk briefly about the success of the Self-Governance policy over the
past 20 years and the Tribal-federal collaboration to expand that
success through the Title IV amendments.
The Success of Self-Governance
The increasing number of Tribes that have opted to participate in
the Self-Governance program on an annual basis reflects the success of
the program. In Fiscal Year 1991, the first year Self-Governance
agreements were negotiated by the BIA with Tribes, only seven Tribes
entered into agreements. At that time, the total dollar amount
compacted by Indian Tribes was $27.1 million. By Fiscal Year 2013, 254
Tribes and Tribal consortia entered into 106 funding agreements,
operating $432 million in programs, functions, services and activities.
\1\ The growth in Tribal participation in Self-Governance revealed by
these numbers reflects the success of the program. Under Self-
Governance, Tribes have assumed the management of a large number of DOI
programs, including roads, housing, education, law enforcement, court
systems, and natural resources management. Why? Simply put, Self-
Governance works.
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\1\ Source: Dep't of the Interior, Budget Justifications and
Performance Information, FY 2014, Indian Affairs, Appendix 7.
Self-Governance Promotes Efficiency. Devolving federal
administration from Washington, D.C. to Indian Tribes across
the United States has strengthened the efficient management and
delivery of federal programs impacting Indian Tribes. As this
Committee well knows, prior to Self-Governance, up to 90
percent of federal funds earmarked for Indian Tribes were used
by federal agencies for administrative purposes. Under Self-
Governance, program responsibility and accountability has
shifted from distant federal personnel to elected Tribal
leaders. In turn, program efficiency has increased as
politically accountable Tribal leaders leverage their knowledge
of local resources, conditions and trends to make cost-saving
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management decisions.
Self-Governance Strengthens Tribal Planning and Management
Capacities. By placing Tribes in decisionmaking positions,
Self-Governance vests Tribes with ownership of the critical
ingredient necessary to plan our own futures--information. At
the same time, Self-Governance has provided a generation of
Tribal members with management experience beneficial for the
continued effective stewardship of our resources.
Self-Governance Allows for Flexibility. Self-Governance
allows Tribes great flexibility when making decisions
concerning allocation of funds. Whether managing programs in a
manner consistent with traditional values or allocating funds
to meet changing priorities, Self-Governance Tribes are
developing in ways consistent with their own needs and
priorities, not a monolithic federal policy.
Self-Governance Affirms Sovereignty. By utilizing signed
compacts, Self-Governance affirms the fundamental government-
to-government relationship between Indian Tribes and the U.S.
Government. It also advances a political agenda of both the
Congress and the Administration: namely, shifting federal
functions to local governmental control.
In short, Self-Governance works, because it places management
responsibility in the hands of those who care most about seeing Indian
programs succeed: Indian Tribes and their members.
Need for Title IV Amendments
As important and successful as the Self-Governance initiative has
been for my Tribe and so many others, it is not perfect. Shortly after
Title IV was enacted in 1994, the DOI began a rulemaking process to
develop and promulgate regulations. The process was a failure in many
ways. Ultimately, five years after the rulemaking process began, DOI
published regulations that, from the Tribal perspective, failed to
fully implement Congress's intent when Title IV was enacted. Instead of
moving the initiative forward, it moved backwards.
Tribal leaders began discussions about how the statute could be
amended. At the same time, Congress in 2000 enacted Title V of the
ISDEAA which created a permanent Self-Governance program within HHS,
and which directly addressed many of the issues that proved to be
problematic during the Title IV rulemaking process. But many of the
improvements and Tribal authority reflected in Title V remain absent
from Title IV. Consequently, many Self-Governance Tribes are forced to
operate under two separate sets of administrative requirements, one for
IHS and one for BIA.
Tribal leaders decided that Title IV needed to be amended to
incorporate many of Title V's provisions. It has long been a top
legislative priority of Tribal leaders to amend Title IV. In the last
ten years, I have testified several times before this Committee in
support of predecessor bills to S. 919. \2\ Some members of Congress
may be tired of hearing from me on this issue, but our persistence
speaks to the importance Tribal leadership has placed on amending Title
IV with respect to empowering Tribal governance to manage limited
federal resources to benefit Tribal citizens.
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\2\ E.g., SCIA Hearing on H.R. 4347, Department of the Interior
Tribal Self-Governance Act of 2010 (Nov. 18, 2010); SCIA Oversight
Hearing on the Success and Shortfall of Self-Governance under the
Indian Self-Determination and Education Assistance Act after Twenty
Years (May 13, 2008).
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S. 919 reflects over ten years of discussions, drafting,
negotiation, and redrafting. Particularly in the past two years, Tribal
representatives, along with agency and Congressional staff, have worked
hard to come up with a bill that everyone can support. The time has
come to pass this legislation, which would significantly advance
Congress's policy of promoting Tribal Self-Governance for American
Indian and Alaska Native Tribal governments.
Overview of S. 919
The proposed bill will bring Title IV into line with Title V,
creating administrative efficiencies for Tribes while also importing
the beneficial provisions of Title V currently missing in the older
Self-Governance statute. Let me quickly summarize a few of the key
provisions in S. 919. To address problems in the DOI's implementation
of the Tribal Self-Governance program, S. 919 would, among other
things:
conform Title IV to Title V in order to create consistency
and administrative efficiencies for Tribes now operating under
two compacting regimes;
establish a clear ``final offer'' process and timelines for
situations when DOI and the Tribe are unable to agree on
particular terms of a compact or funding agreement, or when DOI
delays approval unreasonably;
clarify and limit the reasons for which the agency may
decline to enter a proposed agreement;
protect Tribes from DOI attempts to impose unauthorized
terms in compacts or funding agreements;
provide a clear avenue of appeal and burden of proof for
Tribes to challenge adverse agency decisions;
clarify Tribal and federal oversight roles in construction
to ensure fiscal prudence and public safety;
leave unchanged the discretionary authority to compact non-
BIA programs within DOI; and
make important amendments to Title I, the self-determination
contracting law, such as clarifying reporting requirements,
rules of interpretation, and applicability of certain Title I
provisions to Title IV agreements.
There is ample precedent for most of S. 919 in Title V, which has
worked very well in the context of health care services and served as
the model for this legislation. Tribes have already conceded on very
significant key issues-for example, removing provisions on mandatory
compacting of non-BIA programs. The fundamental principles guiding S.
919 are all sound, as proven by the success of Title V over the last
decade.
Conclusion
The Title IV amendments embodied in S. 919 significantly advance
the U.S. policy of Tribal Self-Governance. These amendments would cost
nothing; indeed, they would promote the efficient use of federal funds
and improve services to Tribal communities across the nation. The
legislation enjoys broad support among Tribes and their friends in
Congress and Interior. S. 919 is the product of almost 14 years of
experience, discussion, and compromise. Now is the time for this
Committee, and Congress as a whole, to push the bill forward so we can
build on the impressive success of the past and further Tribal Self-
Governance, in partnership with the United States, to improve the lives
of our Tribal citizens.
Thank you for this opportunity to share our views on this important
legislative initiative for our Tribe and Indian Country.
The Chairwoman. Thank you, and thanks again for traveling
all this way. Now we will hear from Chairman Trahan. Thank you
for being here.
STATEMENT OF HON. RONALD TRAHAN, CHAIRMAN, CONFEDERATED SALISH
AND KOOTENAI TRIBES
Mr. Trahan. Thank you. I will read my statement out here,
so it is my testimony, so bear with me if you would, please.
Good afternoon, Chairwoman Cantwell, Senator Tester and
Committee members. My name is Ron Trahan. I am serving as the
newly elected Tribal Chairman of the Salish and Kootenai Tribes
of Montana.
I also want to thank you personally, Chairwoman Cantwell,
for the time that you spent with us on the Flathead Indian
Reservation back in September, when you were visiting with
Senator Tester.
I will keep my remarks brief, since you have my written
testimony.
The Confederated Salish and Kootenai Tribes support S. 919,
as well as the proposed changes to the bill under Committee
consideration. As discussed in my written testimony, my tribe
has a long history with self-governance contracting. Our late
chairman, Ricky Pablo, was a tireless advocate for the adoption
of self-governance laws. It does my heart good to report our
tribes have thrived under the laws we helped enact.
Ricky and former Chairman of the Committee, Senator Inouye,
were great partners. We owe a great debt of gratitude to them
and also former Vice Chair McCain and the many other tribal and
Congressional leaders who turned self-governance into reality.
Due in part to our extensive contracting activities and in part
to our commercial activities by tribes, our tribe is the
largest employer in northwest Montana and one of the largest in
western Montana. The Confederated Salish and Kootenai
government alone has over 1,000 full-time employees. Currently
the tribal government annually administers approximately $25
million in self-governance funds, $150 million in contracts and
grants and $45 million in tribal revenue.
A repot funded by the State of Montana several years ago
showed that the Confederated Salish and Kootenai Tribes
contributed $317 million to the Montana economy annually.
Thanks in part to self-governance policies, we are a key player
in building our reservation's and regional economies.
As with our prior testimony on this legislation in past
Congresses, I would like to update you on our self-governance
efforts at the National Bison Range and Complex. I refer to the
complex not just the National Bison Range, because the complex
includes not only the bison range but two additional wild
refuges that are located on tribally owned land, which is the
Ninepipe and Pablo National Refuge.
As you may know, we have been working for almost 20 years
to secure a stable funding agreement with the U.S. Fish and
Wildlife Service for the programs at the Bison Range complex.
In 2008, our tribe signed an agreement with the service that
allowed them to have a meaningful role in the operations of the
bison range. That signing ceremony at the Interior Department
was attended by Senator Baucus, Senator Tester and Secretary
Kempthorne, among others.
Over the next two years, that parties were very satisfied
with the partnership. The agreement was challenged in Federal
court by a group who opposed the tribal presence at the Bison
range. The court rescinded the agreement on procedural grounds
under the National Environmental Policy Act. We have been
trying ever since to deal with the technicalities and return to
the Bison Range. My written testimony gives a more detailed
overview of the most recent history.
The Fish and Wildlife Service is currently working on an
environmental assessment of our new draft agreement. Yesterday
we met and discussed our efforts with Dan Ashe, the Director of
Fish and Wildlife Service. He assured me that the service wants
to return to the productive partnership they had with us at the
Bison Range and Complex. The partnership success we had with
the Bison Rang is one reason why groups like the National
Wildlife Federation supports the tribe's return under a new
self-governance agreement.
While we are frustrated by the amount of time it is taking
for us to return to the bison range, it is our hope that the
partnership we have built with the services at both field and
policy maker levels will continue, and that this will happen
sooner rather than later. We have exercised great patience over
the last 20 years, but it simply should not take this long.
Our bison range partnership will once again benefit the
Service, the tribes and the communities, making the self-
governance agreement in everyone's best interest. We appreciate
the support that this Committee and others in Congress have
shown for our efforts.
In concluding my remarks, the tribes support S. 919. Thank
you again for the opportunity to share my thoughts with you. I
also extend a personal invitation to the Chairwoman, Vice
Chairman and all members of this Committee to visit the
beautiful Flathead Indian Reservation so we can share with you
more of what we do and who we are.
At this time I would, along with my staff, happily try to
answer any questions that you have. And again, thank you.
[The prepared statement of Mr. Trahan follows:]
Prepared Statement of Hon. Ronald Trahan, Chairman,Confederated Salish
and Kootenai Tribes
Greetings Chairwoman Cantwell, Vice-Chairman Barrasso, Senator
Tester and Committee members. My name is Ron Trahan and I serve as the
Chairman of the Confederated Salish and Kootenai Tribes (``CSKT'' or
``Tribes'').
On behalf of the Confederated Salish and Kootenai Tribes, I thank
you for the opportunity to provide our views on S. 919, including
proposed revisions to the bill that are under Committee consideration.
CSKT supports the legislation.
This legislation, which would amend the Tribal Self-Governance
Act's Interior Department provisions, found in Title IV of the Indian
Self-Determination and Education Assistance Act (ISDEAA), has a long
history. Ten years ago, in 2004, one of my predecessors, Chairman D.
Fred Matt, testified before this Committee on an earlier version of S.
919 (S.1715). Seven years ago, in 2007, another of my predecessors,
James Steele, Jr., also testified here on draft legislation to amend
the Tribal Self-Governance Act.
The success and resilience of the Tribal Self-Governance Act, and
Self-Governance tribes, is unquestioned. The record of success built by
Self-Governance tribes is a testament to the foresight and wisdom of
tribal and congressional leaders. The late CSKT Chairman Michael
(``Mickey'') T. Pablo, had fiercely fought for enactment of Tribal
Self-Governance legislation and policies. As we have stated before, the
record built by CSKT, and Indian country, in administering federal
programs would make Mickey proud. Mickey was instrumental in CSKT
becoming one of the first ten tribes in the country to participate in
the Tribal Self-Governance Demonstration Project in the late 1980's,
and he was a key player in the subsequent permanent establishment of
Tribal Self-Governance as federal policy.
I would also like to acknowledge the essential contributions of
this Committee, and its leadership under former Co-Chairmen Daniel K.
Inouye and John McCain, in establishing Tribal Self-Governance as
permanent federal policy. The manner in which Congress worked with
tribal leaders to develop, test, and then permanently enact the Tribal
Self-Governance paradigm is an outstanding model for how policy should
be formulated.
CSKT has long asserted that ISDEAA and its 1994 amendments, known
as the Tribal Self-Governance Act (Title IV of ISDEAA), have been two
of the most important and successful pieces of federal Indian
legislation in history. They are a logical progression from the Indian
Reorganization Act of 1934, which first set the stage under federal law
for tribal governments to once again determine our own affairs, protect
our own communities, and provide for our own people in concert with our
respective cultures and traditions--something we have done since time
immemorial. Fully implementing Tribal Self-Governance is a pivotal step
in realizing the federal policy of Indian Self-Determination that was
ushered in almost forty years ago.
CSKT's Self-Governance Background
General Background
CSKT has been one of the most active of the many Self-Governance
tribes and, as mentioned above, is one of the original ten Self-
Governance tribes. We have found the system of Self-Governance
contracting, through compacts and annual funding agreements (AFA's), to
be highly effective in: (1) increasing the efficiency and integrity of
federal services to tribes and tribal members; (2) increasing tribal
autonomy and self-sufficiency; (3) strengthening the government-to-
government relationship between the United States and tribal
governments; and (4) developing our Tribal economy. All of these are
among the principal objectives identified by Congress in its policy
rationale for ISDEAA:
[T]he United States is committed to supporting and assisting
Indian tribes in the development of strong and stable tribal
governments, capable of administering quality programs and
developing the economies of their respective communities.
25 U.S.C. 450a(b)
As Congress later stated in enacting the Tribal Self-Governance Act
of 1994:
The Tribal right of self-government flows from the inherent
sovereignty of Indian tribes and nations[. . . .] It is the
policy of the Tribal Self-Governance Act to permanently
establish and implement self-governance . . . [t]o permit each
Tribe to choose the extent of its participation in self-
governance.
25 C.F.R. 1000.4(a)(1), (b)(2)
Currently, the CSKT Tribal government annually administers
approximately: $25 million in Self-Governance funds; $150 million in
contracts and grants; and $44 million in Tribal revenue. Our government
alone has 1,000 full-time employees. We are the largest employer on the
Flathead Reservation, the largest employer in northwestern Montana, and
we contribute over $30 million in payroll and over $50 million in
purchasing to the local economy. A report funded by the State of
Montana several years ago showed that CSKT contributed $317 million to
the Montana economy annually. \1\ It is important to remember, however,
that the Indian unemployment rate on our Reservation is still much
higher than that of the general area population. This is an indicator
that we have a long way to go in building our Tribal and Reservation
economies. To this end, the Tribal Self-Governance Act remains a vital
tool for us.
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\1\ ``Monetary Contributions of Reservations to the State of
Montana'', prepared by Eleanor YellowRobe, Bureau of Business and
Economic Research, University of Montana (submitted to State Tribal
Economic Development Commission, Montana Department of Commerce--
November 2007) pp. 1, 9-10.
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The following is a list of just several examples of CSKT's
successes in administering programs through ISDEAA and Self-Governance:
In 1986, we signed a contract to take over control and
management of the electrical utility on our reservation, then
known as the Electrical Division of the Flathead Indian
Irrigation Project. We renamed it Mission Valley Power (MVP).
This utility serves every home and business on the reservation,
Indians and non-Indians alike. It also provides power to the
National Bison Range. It is considered one of the best-run
utilities in the state of Montana. Since the Tribes took over,
MVP has replaced and updated much of the utility's
infrastructure yet managed to retain some of the lowest rates
in the region. MVP has been 638-contracted and has not been
included in subsequent Self-Governance agreements due to the
prohibition found in 25 U.S.C. 458cc(b)(4)(C). CSKT supports
S. 919's deletion of this prohibition.
Since 1996, CSKT has contracted the operation of the Bureau
of Indian Affairs' (BIA) Land Title Recording Office (LTRO) for
the Flathead Indian Reservation. We are aware of only a few
other tribes that contract or compact the LTRO program in its
entirety. Through Tribal control, we have: greatly decreased
waiting time for requested documents; more nimbly adjusted
priorities to respond to different needs regarding appraisals,
mortgages, leases, etc.; and increased budget efficiencies for
a program that is severely underfunded by the federal
government. Tribal operation of LTRO functions has also been a
key factor in CSKT's record of proactive land acquisitions and
reduction of land fractionation through Tribal acquisition of
fractionated interests.
In 1989, CSKT contracted the BIA's Safety of Dams (SOD)
program. One of the main objectives of this program is to
eliminate or remediate structural and/or safety concerns at 17
locations on the Flathead Indian Reservation as identified by
the Department of Interior National Dams--Technical Priority
Rating listing. CSKT's SOD Program provides investigations,
designs and SOD modifications to resolve the concerns of the
dams on the list. The Tribes' SOD Program has been extremely
successful and, under our administration, Reservation dams have
been modified at a cost significantly lower than originally
estimated by the Bureau of Reclamation. Past examples include
completion of Black Lake Dam in November 1992 at a savings of
approximately $1.3 million below Bureau of Reclamation
estimates. The Pablo Dam Modification Project was completed in
February 1994 at a savings of nearly $140,000.
In fiscal years 1997 and 1998 respectively, CSKT began
compacting for administration of the Individual Indian Monies
(IIM) program for the Flathead Reservation. As of the January
23, 2013 Federal Register listing of Tribal Self-Governance
agreements with non-BIA agencies, CSKT is the only tribe that
currently has such an agreement with the Office of Special
Trustee (OST) for these functions.
National Bison Range Complex
With respect to non-BIA programs, the Interior Department has not
established a very encouraging record regarding Tribal Self-Governance
agreements. As this Committee is well aware, for almost twenty years
CSKT has been working to secure a stable funding agreement with the
U.S. Fish & Wildlife Service (FWS) for programs at the National Bison
Range Complex (NBRC), which is almost entirely located within the
Flathead Indian Reservation. The NBRC includes two ancillary National
Wildlife Refuges that are located on Tribally-owned land in the center
of the Reservation (the Ninepipe and Pablo Refuges).
While the effort has been unnecessarily expensive, frustrating and
resource-intensive, it is worth the fight. In addition to the National
Bison Range's physical location in the center of our Reservation, the
NBRC's bison herd has its origins with the bison herd started and grown
by Tribal members in the late 1800's and early 1900's, when bison were
threatened with extinction. The NBRC's Ninepipe and Pablo Refuges are
the result of Tribal requests in the 1910's and 1920's for the federal
government to put the areas around two irrigation reservoirs into
protected status for bird conservation. After several years, the United
States responded by issuing two Executive Orders designating the areas
as Refuges. In 1948, Congress acquired a perpetual easement from CSKT
for such Refuge uses at Ninepipe and Pablo, while also recognizing the
Tribes' reserved rights on the properties. \2\ Collectively, the
National Bison Range and the Ninepipe and Pablo Refuges occupy a unique
place within our Reservation, our history, our culture, and our hearts.
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\2\ Act of May 25, 1948, 62 Stat. 269, at Section 5(b).
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As this Committee is aware, the CSKT has executed two multi-year
AFA's with FWS for programs at the NBRC. The first AFA was signed in
2004, and the second was signed in 2008 at a Washington, D.C. ceremony
attended by Interior Secretary Dirk Kempthorne and Montana Senators Jon
Tester and Max Baucus. Unfortunately, both of these agreements came to
premature ends.
With the negotiation and implementation of the 2008 AFA for NBRC
programs, which covered fiscal years 2009-2011, CSKT and FWS built a
highly constructive relationship both on the ground and at the policy-
maker level. That relationship was reflected in many ways, including:
positive status reports; successful annual bison round-ups; positive
visitor feedback; and increased general communication and coordination
between federal and tribal staffs.
Unfortunately, two non-governmental organizations \3\ who have
consistently opposed the federal-tribal partnership, challenged the
agreement in a federal court action, stating that it violated a number
of federal statutes such as the Tribal Self-Governance Act and the
National Wildlife Refuge System Administration Act. The court did not
rule on any of those substantive claims, but it did find that FWS
failed to properly explain its invocation of a categorical exclusion
under the National Environmental Policy Act when it approved the AFA,
so the court rescinded the agreement on the basis of that procedural
violation. The court decision was handed down in September 2010. In the
three and a half years since that decision, CSKT has negotiated a new
draft agreement with FWS and the agency then began preparing an
Environmental Assessment for the draft agreement. It is still in the
process of preparing that Assessment.
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\3\ Public Employees for Environmental Responsibility (PEER) and
the Blue Goose Alliance.
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CSKT is pleased to have a wide pool of support for an NBRC Self-
Governance agreement, including from conservation groups such as the
National Wildlife Federation (see attached letter from NWF submitted in
response to FWS' 2012 request for scoping comments regarding the
Environmental Assessment). As stated by then-Chairman and Ranking
Member of the House Natural Resources Committee, Congressmen Nick
Rahall and Don Young:
Working with Tribal governments . . . under the authorization
of the Tribal Self-Governance Act should not be viewed any
differently than partnering with State governments especially
in this instance where the tribe owns the land on which the
ancillary facilities of the NBRC National Bison Range Complex
[sic] are located. \4\
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\4\ May 15, 2007 letter to Interior Secretary Dirk Kempthorne from
House Natural Resources Committee Chairman Nick Rahall and Ranking
Minority Member Don Young, p. 2 (copy attached to this testimony).
While we have been very frustrated with the length of time that
this process is taking, we are hopeful that the improved relationship
between CSKT and FWS will result in a satisfactory agreement that will
return CSKT staff to the National Bison Range soon so we can continue
what was widely-acknowledged to be an effective partnership. As the New
York Times said in a September 3, 2003 editorial addressing the Bison
Range partnering efforts, ``if the Salish and Kootenai can reach an
agreement with the Fish and Wildlife Service, something will not have
been taken from the public. Something will have been added to it.''
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(see copy of editorial below).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
To this end, I would like to extend the CSKT Tribal Council's
sincere appreciation for our friends in Congress who have long
supported a Self-Governance partnership at the NBRC.
Provisions of S. 919
As mentioned at the outset of this testimony, CSKT supports S. 919,
including the proposed revision currently under the Committee's
consideration. Making Titles IV and V of ISDEAA (Interior Self-
Governance and Indian Health Service Self-Governance, respectively)
more consistent has long been a goal for Self-Governance tribes. CSKT
agrees with S. 919's approach of leaving intact much of the existing
statute, while amending some of the current provisions and adding new
ones.
CSKT greatly appreciates the inclusion in S. 919 of specific
recognition that 50 percent of costs incurred by a tribe's governing
body are reasonable and allowable for purposes of contract support cost
determinations. Including this provision in the statute would bring an
end to past uncertainties as to whether the federal government would
continue this past practice. This has a significant impact on the
budget of CSKT and many other tribes. [ 104 of S. 919, as introduced]
CSKT particularly supports S. 919's definition for the term
``inherent Federal function''. While the term is already so defined in
Title V, having the definition specifically included for Interior
programs is a positive step towards eliminating the confusion over this
term during field-level negotiations. [ 201(a)(``401(6)'') of S. 919,
as introduced]
As the only tribe currently with a Self-Governance agreement with
the OST, we also support S. 919's explicit incorporation of the OST
with respect to mandatory Self-Governance agreements. [
201(c)(1)(``(a)(2)'']
CSKT appreciates S. 919's inclusion of specific authority for
multi-year funding agreements, as this is an issue for which we have
encountered some resistance from federal agencies in the past. We have
been able to resolve the disagreements successfully, but statutory
clarification will prevent needless disagreements on the issue in the
future. [ 201(c)(1)(``(p)(4)'']
CSKT strongly supports the statutory clarification of tribal
ability to carry-over funding. This is also an area in which we have
had disagreements with federal agencies and we welcome the
clarification. [ 201(d)(``408(k)'']
With respect to contract support funding, it is important that S.
919 retains the existing statutory language mandating funding for
contract support costs (25 U.S.C. 458cc(g)(3)). Payment of contract
support costs is a prerequisite for realizing the full potential of
Tribal Self-Governance objectives. Stronger efforts to secure adequate
appropriations for this area are badly needed. In our testimony on
prior versions of this legislation, CSKT has repeatedly raised this
issue. We have consistently maintained that Congress did not intend for
Self-Determination or Self-Governance contracting to be money-losing
propositions, yet that is what they have become as long as the federal
government refuses to pay tribes what they are due under the law for
administration of the programs. Since our last testimony regarding this
legislation, the Supreme Court has confirmed, in its Salazar v. Ramah
Navajo Chapter opinion, \5\ that the Federal Government is legally
obligated to fully pay these costs. We were very disappointed in the
Obama Administration's effort to cap contract support cost payments for
fiscal year 2014, thereby preventing tribes from pursuing legal claims
for full payment. CSKT very much appreciates Congress' rejection of
that approach in the FY14 budget, and we appreciate the leadership of a
number of Senators on this Committee in advocating for tribes on this
issue.
---------------------------------------------------------------------------
\5\ 132 S.Ct. 2181 (2012).
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CSKT supports S. 919's approach of maintaining the existing
statutory authority for contracting Interior programs, outside of the
BIA, that are of geographic, historical or cultural significance to
tribes. It is through the lens of our experiences involving the NBRC
that we evaluate the non-BIA provisions of S. 919. The legislation
would leave untouched the statutory authority for NBRC contracting,
found at 25 U.S.C. 458cc(c). CSKT supports this since we have
negotiated multiple agreements under this authority and do not want to
see it diminished or impaired in any way. Section 202 of S. 919, both
as introduced and in the Committee's proposed amended version, further
clarifies that nothing in this legislation would modify this aspect of
non-BIA contracting authority. CSKT would strongly oppose any changes
or amendments to non-BIA contracting authority that could be used by
opponents of tribal contracting to further hamper or prevent Self-
Governance partnerships such as those we have built at the NBRC.
CSKT believes more should be done to encourage, rather than
discourage, these partnerships. The United States is rapidly falling
far behind countries such as Canada and Australia when it comes to
federal-tribal partnerships in the management of protected areas such
as refuges and parks. CSKT believes that Tribal Self-Governance
policies and agreements have been, and can be, strong vehicles for
constructive collaboration between the United States and Indian tribes.
Two areas of continuing concern for CSKT which S. 919 does not
currently address include the following:
Federal Tort Claims Act (FTCA) coverage. Presently, liability
coverage for tribal contractors, including FTCA coverage, is
addressed in Title I of ISDEAA at 25 U.S.C. 450f(c). In past
AFA negotiations, CSKT has expended a disproportionate amount
of time and energy over the issue of whether FTCA coverage
existed for tribal volunteers who perform work for a contracted
federal program. CSKT has long maintained that tribal
volunteers performing federal program work should enjoy the
same FTCA coverage as federal volunteers performing such work.
Unfortunately, we have not resolved this issue and, as a
result, the BIA has agreed to purchase liability insurance to
cover Tribal volunteers under our last two NBRC AFA's. While we
have found agreement with our position from Interior solicitor
offices, we understand that opposition emanates from the U.S.
Department of Justice (DOJ). We are generally concerned with
what seems to be an increasing practice by the DOJ to narrowly
interpret FTCA coverage in circumstances involving tribal
contractors, as well as in other situations. This unfortunately
has had negative impacts on CSKT's ability to recruit
volunteers for contracted programs and/or explain to existing
or prospective volunteers the scope of their liability
coverage. In plain terms, we believe we have lost potential,
and past, volunteers at the NBRC due to this issue. We
encourage Committee attention to this ongoing problem.
Full funding of programs. CSKT has been on record with
equating the issue of full program funding to effective
implementation of ISDEAA and Tribal Self-Governance objectives.
Without Congressional commitment to fully funding the federal
programs being contracted by Self-Governance tribes, we cannot
overcome the resource limitations to making the programs as
successful as they need to be. Dwindling, or stagnant, federal
funding results in tribes having to supplement federal programs
with tribal dollars. This serves as a disincentive to contract
under ISDEAA and Tribal Self-Governance. Just a couple of the
many examples relevant to Title IV contracts include:
The recently completed third independent assessment and
report on the status of Indian forests and forestry finds that
BIA funding for Indian trust forest management is $2.82 per
acre--an amount which is only one-third of the funding level
for the U.S. Forest Service, which is $8.57 per acre.
Per capita spending on law enforcement in Native American
communities is roughly 60 percent of the national average.
Similar disparities exist for almost all Indian programs contracted
under Title IV. While this is an appropriations issue and somewhat of a
separate issue from the Self-Governance provisions of S. 919, it is
materially related to achieving the goals of the Act and is thus a
proper subject for this Committee's attention. Congressional
rectification of this issue would be a solid investment into more
effective program delivery and better administration of the federal
trust responsibility.
Conclusion
The Confederated Salish and Kootenai Tribes are one of many tribes
that successfully partner with the federal government under the Tribal
Self-Governance rubric. Work remains to be done towards: (1)
eliminating disincentives and removing barriers to Self-Governance
participation; and (2) encouraging non-BIA Self-Governance activity.
The proposed legislation is a good start towards accomplishing those
ends.
On behalf of CSKT, thank you for the opportunity to provide
testimony and I would like to thank this Committee, its Members, and
staff, for your support of Self-Governance. I would be happy to answer
any questions.
Attachments
Jeff King,
Refuge Manager,
National Bison Range,
Moiese, MT 59824
Re: Scoping Comments--Notice of Intent to Prepare an
Environmental Assessment Regarding the Interest of the
Confederated Salish and Kootenai Tribes to enter into an
Annual Funding Agreement with the U. S. Fish and Wildlife
Service (``The Service''), for the Operation and Management
of Programs at the National Bison Range Complex
Dear Mr. King,
Thank you for the opportunity to provide comments concerning your
notice of intent to prepare an Environmental Assessment regarding the
Annual Funding Agreement (AFA) with Confederated Salish and Kootenai
Tribes (CSKT) and the National Bison Range (NBR). The National Wildlife
Federation (NWF) is America's largest conservation organization and has
over 4 million supporters and 47 state affiliates. NWF has a long
history of partnering with Native American Tribes to conserve and
protect wildlife for our children's future and currently partners with
the CSKT on numerous wildlife, habitat and environmental issues.
NWF strongly believes that a partnership between the Service and
the CSKT should be formalized through a new self-governance AFA that
would contract with the CSKT to operate eligible refuge programs and
perform specific day-to-day activities of the NBR consistent with the
National Wildlife Refuge System Administration Act (NWRSAA). NWF has
supported this partnership since it was originally proposed in 2004.
On May 17, 2012, the CSKT's received NWF's National Government
Conservation Achievement Awards for their outstanding commitment to
preserving, protecting and restoring wildlife and habitat for future
generations. \1\ The CSKT is unparalleled in their methods, efforts,
conservation ethic and follow through to achieve sustainable
conservation outcomes. Known throughout the country for their
scientific and cultural knowledge, their partnerships with other
governments and long history of conserving, managing and restoring
wildlife habitat, the CSKT Division of Fish, Wildlife, Conservation and
Recreation are more than qualified to partner with the Service to
manage NBR's resources.
---------------------------------------------------------------------------
\1\ Missoulian, http://missoulian.com/news/state-and-regional/
salish-kootenai-tribes-win-national-conservation-award/
article_0e02a208-9fc2-11e1-9d9d-0019bb2963f4.html.
---------------------------------------------------------------------------
As you know, the CSKT's have a long history of managing wildlife
and wild lands in partnership with local, state and Federal
governments. For example, they have,
Signed a historic landmark agreement in 1990 between the
Tribes and the state of Montana governing bird hunting and
fishing on the Flathead Indian Reservation.
Successfully managed 97,000 acres of primitive areas.
Acquired and managed over 11,000 acres of fish and wildlife
habitat through the Tribal Wildlife Management Program.
Acquired over 4,600 acres of land, including 27 miles of
streams and lake habitat to offset impacts to fisheries.
The National Bison Range is an outstanding and important resource
for all Americans and the CSKT are outstanding land and wildlife
managers that preserve and protect wildlife in one of the most
important ecosystems in North America. The Tribes helped save the bison
in the 19th and early 20th centuries and will continue to protect the
bison and other wildlife species and natural resources on the NBR for
future generations.
We believe that this partnership will produce numerous long-term
benefits to the Tribes, the Service and all Americans. The agreement
will utilize the best abilities and resources of the Tribes and the
Federal Government to manage NBR's resources and better serve the
people that utilize the land. This partnership will also facilitate the
achievement of Departmental and Congressional objectives for both its
NWRS and Tribal Self-Governance programs. The Tribe is in a strong
legal position to participate in the AFA. The Tribal Self-Governance
Act of 1994 gives qualified Indian tribes the right to request funding
agreements to perform activities administered by the Department of
Interior that are of special geographic, historic or cultural
significance to the requesting tribe. It is well known that the NBR has
a very high level of cultural, historic and geographic significance to
the CSKT and all units of the NBR under consideration for an AFA are
located within the Flathead Reservation. Many of the bison that reside
on the NBR are descendants from a herd originally saved by Tribal
members in the late 19th century, and which originated on the
reservation.
We look forward to working with the Service and CSKT on the
Environmental Assessment for the AFA.
Sincerely,
Larry Schweiger, President and CEO,
National Wildlife Federation.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairwoman. Thank you, Mr. Trahan. Again, thanks for
that invitation. You do represent a beautiful part of our
Country, so you never know when some of us might show up.
We are going to wait on questions, we are going to go to
Mr. Isaac next, and when we have finished with him and Mr.
Peercy, then we will go to questions. Thank you for your
testimony.
Mr. Isaac?
STATEMENT OF JERRY ISAAC, PRESIDENT, TANANA CHIEFS CONFERENCE
Mr. Isaac. Thank you, Chairwoman Cantwell, Vice Chairman
Barrasso and the rest of the Committee, Senator Murkowski and
Senator Tester.
Thank you so much for holding today's hearing on S. 919. I
too will read my testimony. As I noted in my written testimony,
this is likely my last opportunity to testify before Congress
on behalf of Tanana Chiefs Conference. So today is a very
special day for me.
Thank you to the Committee for inviting me. But more
importantly, thank you for all that you have done to help
Indian Country and that you continue to do to help Indian
Country.
I have witnessed incredible change in the past decades, all
for the good. Much of it is attributable to the work of this
Committee. I am here today to support enactment of S. 919, so
that the rules for compacting with the Department of the
Interior will finally be consistent with the successful
compacting rules that control the Indian Health Services.
Title 4 and Title 5 are part of one law, the Indian Self-
Determination Act. We deal with two agencies, IHS and BIA. But
there is just one law and there should just be one set of rules
to follow.
In my written testimony I mentioned on good example of how
self-governance suffers when there are two different sets of
rules. In the IHS rule, we sometimes have delays with IHS in
negotiating a new funding agreement on a new funding table.
When that happens, thanks to Title 5, our old funding agreement
with IHS remains in place. Funding continues, services
continue. The old agreement stays in place until there is a new
agreement.
But in the BIA world, a negotiation delay means funding
stops, services stop, the compacting relationship essentially
stops. This is not just a timing issue. Because of these
different rules Interior can and in the past Interior has
refused to sign a new agreement unless we accept Interior's
demands for unilateral changes in those agreements or in the
funding tables. That kind of pressure tactic is unacceptable.
It is contrary to the core principle of tribal self-governance
and the whole idea of government to government relations.
I am pleased to say that the current Administration has not
pressured tribes in this fashion. The new bill will make
certain that these improvements and current practice will
become improvements in the law. But no contracting law alone
can address our most severe problems. Those include the
terrible abuse suffered by women in some of our villages. The
recent Law and Order Commission report once again put a
spotlight on this terrible issue and on the barriers that are
preventing our local tribal governments from doing more to
help.
I am extremely pleased to see that Senator Murkowski and
Senator Begich have committed in S. 1474 to repeal Section 910
of the Violence Against Women Act. All I would ask is that the
Committee consider adding that one provision into this bill.
Our women are suffering and our tribes lack the tools they need
to do something about it. They cannot wait, our women cannot
wait.
So I hope that this is something the Committee can consider
adding to S. 919 as this important bill moves forward. It all
relates to improving the ability of our tribes to maximize
tribal self-governance and make the communities safe and
healthier for all.
Before closing, I want to offer a special thanks to the
Committee for being such a champion on the contract support
cost issue. Thanks in major part to your two hearings, the 2014
Omnibus Appropriation rejected efforts to convert our self-
governance compacts into little more than discretionary grants.
I thank you.
But more work remains to be done. All of the past contract
support cost claims need to finally be resolved. We have waited
too long, 20 years. This makes no sense. Not when the agencies
have already told Congress how much they owe. I am confident
that with your continuing support, these claims can at long
last be concluded.
Thank you for the privilege of appearing today. Thanks to
the Indian self-Determination act, our villages are stronger
and our futures are brighter. Most importantly, our vision
remains unchanged for all tribes, including Alaska tribes, to
be vested with the power and resources necessary to assure
safe, healthy and sustainable communities. I thank you again.
[The prepared statement of Mr. Isaac follows:]
Prepared Statement of Jerry Isaac, President, Tanana Chiefs Conference
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairwoman. Thank you.
Mr. Peercy, welcome. Thank you for being here.
STATEMENT OF MICKEY PEERCY, EXECUTIVE DIRECTOR OF SELF-
GOVERNANCE, CHOCTAW NATION OF OKLAHOMA
Mr. Peercy. Thank you, Senator. I will read some of mine
then I will talk some of mine. I talk better than I read. I
would ask Chairman Allen to catch me if I get out of line. They
say I don't have a filter, but I know I do.
The Chairwoman. You have a clock, for sure.
Mr. Peercy. I have a clock, and it is running.
[Laughter.]
Mr. Peercy. That is what I get I ramble.
On behalf of Chief Gregory Pyle and the Council at Choctaw
Nation, I want to thank you for all your support of this
distinguished Committee and also for your action on S. 919 as
well as the 11 co-sponsors.
Choctaw Nation began in this self-governance journey in
1994, 1995, respectively, with IHS and the Bureau of Indian
Affairs. It is the Chief's and Council's responsibility to
always look after their people and also to do everything
possible to guarantee self-sufficiency of the people and the
Nation.
BIA, the Chief would not have me come here if I didn't say
that means bossing Indians around. He is confidently saying
that. And it is an issue. Go with me just a little bit to
Ardmore, Oklahoma and an Indian family that has an IM account,
they have issues with money. Refrigerator goes out, so they
load up the children, they load up the family and they drive up
to the agency's office and they go ask the social worker first,
then they ask the superintendent of the agency if they can have
enough money to buy a refrigerator. It is not right. There is
nothing right about that in terms of the dignity of the Indian
family, of any family of anyone. It is not acceptable.
The tribe does everything that it can to build self-
sufficiency within self-governance, to build the self-
sufficiency of the family as well as the Nation. So those sorts
of indignities don't happen. S. 919 makes it a high priority of
self-governance tribes in our quest to get legislation enacted
that will remove many of the administrative and practical
barriers that persist and have persisted in Title 4.
The current law, as it is, allows for delays and
obstruction by the DOI which has resulted in frustration for
tribes through self-governance implementation process. Instead
of operating program services, functions and activities in an
efficient and productive manner as originally intended, and
performed under the self-governance demonstration projects,
tribes have been subject to pushbacks constantly in the system.
This cannot work any longer.
In testimony with Dr. Roubideaux at one time, four or five
years ago, I wrote in written testimony as well as speaking
that the Indian Health Service, we were talking about contract
health service. I had made the statement that the Indian Health
Service didn't have the DNA to do contract health service. It
wasn't personal. It is the fact that the management of that
program, they weren't able to do it, they weren't able to get
doctors paid on time and they didn't seem to have the
willingness to do what it took. Dr. Roubideaux still hasn't
forgiven me for that.
But it is the case here. It is the case when we have
Federal people, and I appreciate this Committee and I
appreciate Kevin Washburn, he is Chickasaw, they live right
next door to us, and I appreciate the political people, all the
secretaries, all the heads that are political, I don't care if
it is Republican or Democrat, they can't do it. It is the
career people who stop the progress.
And I will say that, I am probably going to retire in about
four or five years, but I am going to say that going to my
grave, that there is an inherent thing going on, and I have
seen two decades of Federal people. So it is not just one
decade, it is the next decade. I have been doing this since
1985. And there is an inherent need to be paternalistic,
especially with the Bureau. And until laws are set and
regulations are set that challenges that and makes it easier to
go down that road, we are going to be stuck where we are.
With that, I know I am a little bit over, about five
seconds. We are humble but proud, we are strong and will
continue to grow and succeed. But most of all, we believe that
we made the right choice putting our tribe under self-
governance. We need new tools, we need new tools to make sure
that we are refining the process, building upon the initiative
and government-to-government relationships so that we can
successfully continue this point. S. 919 is one of those tools.
Thank you for your patience. We are here to answer any of
those hard questions.
[The prepared statement of Mr. Peercy follows:]
Prepared Statement of Mickey Peercy, Executive Director of Self-
Governance, Choctaw Nation of Oklahoma
On behalf of Chief Gregory Pyle and the Choctaw Nation of Oklahoma,
thank you Vice-Chairman Barrasso for inviting Choctaw to testify and
thank you to the Senate Committee on Indian Affairs for convening this
hearing on S. 919. We would also like to thank the eleven co-sponsors
who by their very actions represent the continued belief in Congress
that Self-Governance works!
The Choctaw Nation of Oklahoma is an American Indian Tribe
organized pursuant to the provisions of the Indian Reorganization Act
of June 26, 1936-49. Stat. 1967. and is Federally recognized by the
United States Government through the Secretary of the Interior. The
Choctaw Nation of Oklahoma consists of ten and one-half counties in the
southeastern part of Oklahoma and is bordered on the east by the State
of Arkansas, on the south by the Red River, on the north by the South
Canadian, Canadian and Arkansas Rivers, and on the west by a line
slightly west of Durant that runs north to the South Canadian River.
We have been operating under a compact of Self-Governance since
1995 in the Indian Health Service/Department of Health and Human
Service and since 1996 in the Bureau of Indian Affairs/Department of
the Interior. The Choctaw Nation of Oklahoma believes that
responsibility for achieving self-sufficiency rests with the governing
body of the Tribe. It is the Tribal Council's responsibility to assist
our community in its ability to implement an economic development
strategy and to plan, organize and direct Tribal resources in a
comprehensive manner which results in self-sufficiency. The Tribal
Council recognizes the need to strengthen the Nation's economy, with
primary efforts being focused on the creation of additional job
opportunities through promotion and development. By planning and
developing its own programs and building a strong economic base, the
Choctaw Nation of Oklahoma applies its own fiscal, natural, and human
resources to develop self-sufficiency. These efforts can only succeed
through strong governance, sound economic development and positive
social development.
S. 919 remains a top priority for Self-Governance Tribes in our
quest to get legislation enacted that will remove many of the
administrative and impractical barriers that have persisted with Title
IV since 1994. For more than a decade, we have developed and refined
proposed amendments to Title IV of the Indian Self-Determination and
Education Assistance Act (P.L. 93-638, as amended). These amendments
would achieve consistency between Titles IV and V of the Act and
address problems which affect the ability of Self-Governance Tribes to
better serve our citizens. The Choctaw Nation, along with other Self-
Governance Tribal leaders, have worked tirelessly with the
Administration and Congress on these amendments. We strongly believe it
is time to move forward with enactment and we urge this Committee to
support and advance S. 919.
Since we began this effort, many Tribal leaders have testified
before the Senate Committee on Indian Affairs (SCIA) regarding on-going
problems implementing Self-Governance in DOI. These problems, ranging
from inadequate funding levels to bureaucratic recalcitrance, have
caused increased participation by new Tribes in Tribal Self-Governance
to lessen considerably; which is unfortunate since Self-Governance has
proven to dramatically improve the efficiency, accountability and
effectiveness of programs and services for many Tribes and their
citizens.
The current law allows for delays and obstruction by the DOI which
has resulted in frustration for Tribes throughout the Self-Governance
implementation process. Instead of operating programs, services,
functions and activities in an efficient and productive manner as
originally intended and performed under the Self-Governance
Demonstration Project, Tribes have been subjected to ``push back'' and
recalcitrance from the DOI to fully implement the full spirit of the
Act. This was spearheaded by the 1996 Title IV negotiated rulemaking
process which failed and left the Tribes with a sense of urgency to
remedy the ills that were created by the promulgation of the rules and
contrary to the sense of Congress in enacting the legislation.
All but a very few S. 919 provisions were negotiated and agreed to
by Tribal and Federal representatives. The vast majority of the
proposed amendments are not new or radical ideas--many have been
adapted from the Department of Health and Human Services (DHHS) version
of Self-Governance, codified as Title V of the Indian Self-
Determination and Education Assistance Act of 1975 (ISDEAA).
In 2000, Congress enacted Title V which permanently authorized
Self-Governance in the Indian Health Service (IHS), within DHHS. Many
of the improvements and Tribal authority reflected in Title V remain
absent from Title IV Bureau of Indian Affairs (BIA) program
administration. Consequently, many Self-Governance Tribes are forced to
operate under two separate administrative requirements, one for IHS and
one for BIA. The proposed bill will bring Title IV into line with Title
V.
The lack of administrative efficiencies under Title IV--has been
costly for Tribes in terms of time, money and loss of opportunities to
strengthen Tribal infrastructures and develop competitive reservation
economies. The IHS Title V amendments provide for the timely
distribution of funding and administrative safeguards for Tribes
aligning the implementation of executive branch regulatory authority
with the congressional intent of the ISDEAA. Like the Title V
amendments, S. 919 intends to clarify and expand the provisions of
ISDEAA and streamline efficiencies and administrative provisions of the
Act.
There have been many studies and reports performed to evaluate BIA
management, organizational structure and administration, as well as to
identify and recommend remedies to improve quality, efficiency and
cost-effectiveness, organization, functionality and performance.
The 1999 National Academy of Public Administrators (NAPA) Report,
\1\ stated ``. . . without major management and organizational reforms,
the BIA will be unable both to fully meet its responsibilities to the
1.4 million American Indians and Alaska Natives it serves and to
operate an effective and efficient agency. BIA does not have the
capacity to effectively perform basic Federal functions of accounting,
property management, human resources management, procurement, and
information resources management. Further complicating matters at the
BIA is the fact that staff do not receive adequate training.'' The
implementation of the recommendations in the NAPA Report commenced in
2004.
---------------------------------------------------------------------------
\1\ National Academy of Public Administrators Report, Study of
Management and Administration, 1999.
---------------------------------------------------------------------------
In 2011, the Bronner Group \2\ was engaged to perform a multi-phase
evaluation relating to the administrative support structure of the BIA
which included evaluating the NAPA Report. For purposes of the Bronner
Report, the term ``support functions'' included accounting/finance,
budget, acquisitions/contracting, property management, safety
management, human resources, information technology, as well as
engineering and facilities management. In March 2012 the Bronner Report
was released and the reorganization of Indian Affairs was launched much
to the chagrin of the Tribes.
---------------------------------------------------------------------------
\2\ Bronner Report, A New Day for Indian Affairs, March 2012.
---------------------------------------------------------------------------
In February 2013 the Government Accountability Office prepared a
study on Management Challenges Continue to Hinder Efforts to Improve
Indian Education \3\ which identified challenges within the Department
of the Interior's Office of the Assistant Secretary--Indian Affairs
(IA), such as fragmented administrative structures and frequent
turnover in leadership.
---------------------------------------------------------------------------
\3\ GAO-13-342T, February 27, 3013.
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I reference these reports to emphasize the critical need for
streamlining the administrative process for Self-Governance Tribes as
identified in S. 919 that will allow Self-Governance Tribes to maximize
their capability to efficiently and effectively implement Self-
Governance at the reservation level. It is unfair to expect that
excellence can be achieved by the Tribes when there is such a lack of
administrative, program and operational structure in DOI. Removing
these barriers will allow Self-Governance Tribes the opportunity to
succeed where the government is failing them.
Our experience in Self-Governance has allowed us to determine the
best mechanisms for delivering financial resources and decisionmaking
on our homelands. We were provided the funding to begin to plan for
another type of reform to Self-Determination contracting and we have
proven that we made a wise choice with Self-Governance. We made
substantial progress under the Demonstration Project and we continue to
advance our Tribally-driven initiative to quantum leaps today. In DOI,
Self-Goverance has grown to include 260 Federally-recognized Tribes;
and, in IHS there are 340 Self-Governance Tribes.
We are humble but proud; we are strong and will continue to grow
and succeed; but most of all, we believe that we made the right choice
for our Tribe under Self-Governance. We need new tools to make sure we
are refining the process, building upon the initiative and the
government-to-government relationship so that we can successfully
continue along this path.
Today, S. 919 is that tool!
Thank you.
The Chairwoman. Thank you. Again, I appreciate all of you
being here and your testimony. My own personal beliefs are that
we live in a flat world. That just means with technology and
information, you have to drive it down to the level of
expertise where people see what the problems are, and empower
them to deal with them. The more hierarchical you are, the more
you are going to hold people back.
So to me, self-governance makes total sense, and the
progress that has been made by self-governing tribes, as I
mentioned earlier, Alaska Native Medical Center is a great
example of a shining institution that has dealt with a lot of
health care problems very adequately, juxtaposed to an IHS
delivery system, which can be definitely not innovating at the
level that they are innovating.
So anyway, I wanted to ask, I am going to start with you,
Mr. Isaac. You say the Administration is, one of the questions
I have is about the Department of Interior's refusal to enter
into agreements unless the tribe agrees to new terms. You said
that this Administration has not engaged in that behavior,
which I am happy to hear, but I would like to know for the
record, what were the Department's justifications for asking
for long-time self-governance tribes to agree to new terms
before continuing existing programs?
Mr. Isaac. I would like to have my staff attorney answer
that.
The Chairwoman. Or he can answer that in writing.
Mr. Isaac, I also had a question for you as it relates to
the appraisal process. This is one of the things that your
self-governance efforts took over that otherwise would have
been done by the Office of Trustee, is that correct?
Mr. Isaac. Beg pardon?
The Chairwoman. The Tanana Chiefs Conference self-
governance compact with the Department included real estate
appraisals. So you would, these would otherwise be done by the
Special Trustee. So in doing these real estate appraisals,
which is a big issue for the Committee in general, it seems
that you were able to manage that within your own community and
then had some success on that. Is that correct?
Mr. Isaac. Yes. We were one of the consortia that early on
took on the self-governance compacting. And in my opinion self-
governance allows tribes to be self-reliant. And it not only
stop there with contracting BIA programs that include realty,
it also should strongly consider the inclusion of National Park
Service, Bureau of Land Management, any and all Department of
the Interior bureau responsibilities I think should be subject
to contracting by local tribes.
I am confident to say that we have faced extraordinary
circumstances that we prevailed upon and that if any contract
survived being underfunded with contract support costs, in the
past, I am sure that that group of people would be the ones
that I would award contracts to.
The Chairwoman. So do you see how you improved the
management of those, because you were doing the appraisals or
overseeing the real estate appraisals? Do you think that
enabled more results as it related to settlements?
Mr. Isaac. Yes. When we are dealing with realty issues, we
are more successful at it in that we close out cases, pending
files and this stuff more rapidly than it had been in the past.
Realty is something that carries trust responsibility along
with it, and no doubt it is the Federal trust responsibility
that is transferred to the consortia, TCC. And we honor that,
we do the best we can to be more prompt and more effective in
the delivery of that service.
The Chairwoman. Thank you.
Senator Tester?
Senator Tester. Thank you, Madam Chair.
I would just say, on the land buyback issue, and I know the
Department probably wants to do it, but I really think we can
get more bang for the buck contracting that out to the local
level, you guys know what the land is worth, you know much more
about the landscape if you are Salish living in Montana than
somebody back here.
Now if I was going to say, I am not sure I would want the
Salish to do the contract for the Oklahoma tribe. But you guys
ought to do your own.
Anyway, that is off topic here for a bit, but maybe not.
Mr. Allen, I think that just about everybody on this
Committee agrees that self-governance is a positive thing, and
it is undeniable that Indian Country has had some difficulty,
and reasonably so in certain areas. Could you give me an idea
on some areas in which you believed increased systematic
support from the Federal Government would make a positive
impact?
Mr. Allen. Some areas that we have taken over?
Senator Tester. Or some areas that maybe haven't done so
well that additional help from the Federal Government would
help.
Mr. Allen. I think the best way to respond to that question
is that as the tribes take over programs, A, B and C, it could
be a natural resources program, law enforcement program, et
cetera. So as a general observation, our analysis is that we
are severely underfunded categorically. And so what we have
been doing over the years is documenting what that underfunding
level is. You can take these programs like natural resource
management, wouldn't matter whether it was grazing, timber,
fisheries, et cetera, you will see that the tribe are taking
those, the Federal component, and then more often than not have
added our own resources to supplement in order to get it
handled correctly.
Senator Tester. So a little more funding so you wouldn't
have to supplement those with others that should be used in
some other program?
Mr. Allen. Basically, for the most part, tribes are
subsidizing Federal functions. Categorically. You can go across
every one of them.
Senator Tester. I appreciate that.
Chairman Trahan, there have been some recent setbacks in
negotiations in the annual funding agreement between your tribe
and Fish and Wildlife Service over the management of the Bison
Range Complex. The work has been done, I think it was a
positive step in the right direction. I would like to hear some
more on the National Bison Range Complex and how Indian Country
can work with the U.S. Government to increase access and
appreciation for public lands, such as the National Bison
Range.
Mr. Trahan. Madam Chair, Senator Tester, I would gladly
like to revert that to one of my staff.
Senator Tester. You can, or you can respond in writing on
that. That would be fine, that would be better yet.
In your testimony you talked about, and this is for you
again, Chairman Trahan, you met with the Fish and Wildlife
Service recently, maybe even today. And you continue to work on
negotiating the annual funding agreement. I think everybody on
this Committee wants to see that through, I know you guys want
to see it through.
Could CSKT be able to provide the Committee with a progress
report in early summer, where things stand on the Bison Range
agreement?
Mr. Trahan. Sure. We would be happy to do that in the early
spring to late summer.
Senator Tester. Whatever is appropriate.
Mr. Trahan. And we would like to also see if the service
would like to do it jointly.
Senator Tester. Say that again?
Mr. Trahan. I said, we would also like to ask the Service
if they would do a joint briefing with us.
Senator Tester. That would be good.
The Salish Kootenai tribes have some experience with
Mission Valley Power. As we talked about earlier, I think the
work you have done there is pretty impressive. I think it
provides a model of how Indian Country can really work with
State and local governments and do it in a way that I think
helps everybody.
Could you tell a little bit more about how operating this
public utility has affected the tribe's relationship with the
surrounding community?
Mr. Trahan. We could do that in writing, but I could give
you a short version. It has made a lot of difference within the
community, because it has brought the communities more, they
understand that the tribe is not trying there to hurt them, it
is trying to be helpful to everyone. That is what it has done,
it has kept the rates low and everything else in that
perspective.
So it has kind of got rid of the big scare that everybody
thought there was there with tribes managing something like
that.
Senator Tester. And just out of curiosity, how much of that
power is used on tribal lands and how much is used off of
tribal lands? Do you know that off the top of your head?
Mr. Trahan. I sure don't.
Senator Tester. George, do you know that?
Mr. Waters. Certainly a larger percentage, Senator, of the
users are not Indians on the reservation. As I mentioned
earlier, what we think is fascinating is that there are
actually more non-Indians that are asking to become part of the
project, which I think is a testimonial to how well it has been
run.
Senator Tester. I think it is a testimonial to the success
and the management of it.
I want to thank all four of the folks who testified here
today. As we think of additional questions, we may ask you for
some answers in writing. Thank you all for being here, thank
you for your advocacy of self-determination.
The Chairwoman. I want to thank the witnesses for your
testimony today and for all of the input that you have given.
You all represent a lot of information as it relates to the
history of self-governance and what has been going right. Now
we just have to formalize that so we can move more of Indian
Country in that direction.
So we thank you for your testimony. We look forward to
moving this bill in the near future and seeing if we can get it
onto the President's desk after getting it through the House of
Representatives.
This hearing is adjourned.
[Whereupon, at 4:02 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Brian Schatz, U.S. Senator from Hawaii
I want to thank Senators Cantwell and Barrasso for holding this
important hearing today to consider, S. 919, the Department of the
Interior Tribal Self-Governance Act. Since this may be the last
legislative hearing you two chair together, I also want to let the
Chair and Vice Chair know how much I appreciate the bipartisan working
relationship you have forged over the last year, as well as your joint
work with members of this Committee, and many months of consultation
with key stakeholders, to help advance issues of special concern to
Native Americans.
I want to acknowledge and applaud in particular two of your most
important legislative collaborations: S. 919, the subject of our
legislative hearing today; and, S. 1352, the Native American Housing
Assistance and Self-Determination Act, voted to be reported out
favorably by this Committee several weeks ago. I am an original
cosponsor and strong supporter of S. 919 and S.1352, major legislative
priorities for tribal governments and native communities across the
nation.
I look forward to hearing from the witnesses today. I will continue
to work with you, other stakeholders and my colleagues to ensure that
Congressional actions are guided by the principles of self-
determination and self-governance, and the special political
relationship between the United States and Native Americans remains
strong.
Finally, as I may not have another opportunity to address you as
Chair, I want to take this opportunity to formally thank you Senator
Cantwell for your very able leadership of the Senate Committee on
Indian Affairs; and, to acknowledge your proven commitment to American
Indians, Alaska Natives and Native Hawaiians.
I look forward to working with you in the future to help build
stronger and more self-sufficient native communities, create much
needed jobs, and further strengthen our national economy.
Thank you.
______
Prepared Statement of Hon. Tom Udall, U.S. Senator from New Mexico
I would like to thank Chairwoman Cantwell for her leadership on S.
919, the Department of the Interior Tribal Self-Governance Act of 2013.
I am proud to cosponsor this important legislation. Thank you
Chairwoman Cantwell and Vice Chairman Barrasso for taking the time to
hold a hearing on this legislation.
I am glad to see my friend Assistant Secretary for Indian Affairs,
Kevin Washburn, here today. I understand that he will share a message
of support from the administration. I would like to thank him and his
team for working with tribes from across the country to reach agreement
on the provisions in this bill.
Self-governance has proved to be a powerful asset to tribal
nations. Since the enactment of the Indian Self-Determination and
Education Assistance Act in 1975, tribes have shown the great
accomplishments that can be made through self-governance.
Self-governance allows tribes to take control of the programs
tribal members depend on, and to better direct the future of their
communities. But beyond empowerment, self-governance has direct impact
on tribal economies and employment.
As many have noted, A 2004 GAO report showed that tribes engaged in
self-governance had greater gains in employment and per capita income
levels from 1990 to 2000 compared with other tribes.
S. 919 seeks to improve self-governance contracting through the
Department of the Interior. I believe this is an important step for
tribes and the administration, and I am proud to be a cosponsor of the
bill.
______
Response to Written Questions Submitted by Hon. Jon Tester to
Ronald Trahan
Question 1. Chairman Trahan, there have been some recent setbacks
in negotiations in the annual funding agreement between your tribe and
Fish and Wildlife Service over the management of the Bison Range
Complex. The work has been done, I think it was a positive step in the
right direction. I would like to hear some more on the National Bison
Range Complex and how Indian Country can work with the U.S. Government
to increase access and appreciation for public lands, such as the
National Bison Range.
Answer. Our FY 2009-11 Annual Funding Agreement (AFA) with the U.S.
Fish & Wildlife Service (FWS) for the National Bison Range Complex
(NBRC) was rescinded on procedural grounds by a federal district court
decision in September 2010. The court did not find any problems with
the AFA; instead, it found that FWS had not properly explained its
invocation of a categorical exclusion under the National Environmental
Policy Act (NEPA). After the court decision, FWS and CSKT negotiated a
new agreement. Once we had negotiated a new draft AFA, we encouraged
FWS to prepare an Environmental Assessment (EA) for the action in
accordance with NEPA. The Tribal Council continues to fully support the
preparation of an EA, but we have been frustrated by repeated delays in
completing the process. Both FWS and CSKT have agreed that we had a
very productive partnership at the NBRC while the last AFA was in
place. It should therefore not take this long for us to return to that
productive partnership. It is our hope that FWS will not announce any
further delays and that this process will be completed this year.
In response to the second part of Senator Tester's question, I
believe that, if federal agencies were more open to partnering with
Indian tribes, the Tribal Self-Governance Act could be a great tool for
augmenting federal resources for land management. Tribes can be
effective allies in helping raise public awareness about public lands,
including access to those lands. Tribes can add to public lands visitor
experiences by helping to educate people about the lands' traditional
cultural history, uses and importance. In short, CSKT believes that, in
certain cases, Tribal Self-Governance affords federal agencies
unrealized opportunities to further improve public lands management.
Question 2. In your testimony you talked about, and this is for you
again, Chairman Trahan, you met with the Fish and Wildlife Service
recently, maybe even today. And you continue to work on negotiating the
annual funding agreement. I think everybody on this committee wants to
see that through, I know you guys want to see it through. Could CSKT be
able to provide the Committee with a progress report in early summer,
where things stand on the Bison Range agreement?
Answer. Sure. We would be happy to do that in the early spring to
late summer.
We expect that a briefing would be in order sometime this spring.
Since the hearing, we have contacted the U.S. Fish & Wildlife Service
and officials from its Denver Regional Office have indicated they would
be happy to provide a joint update at that time.
Question 3. The Salish Kootenai tribes have some experience the
Mission Valley Power. As we talked about earlier, I think the work you
have done there is pretty impressive. I think it provides a model of
how Indian Country can really work with State and local governments and
do it in a way that I think helps everybody. Could you tell a little
bit more about how operating this public utility has affected the
tribe's relationship with the surrounding community?
Answer. We could do that in writing, but I could give you a short
version. It has made a lot of difference within the community, because
it has brought the communities more, they understand that the tribe is
not trying there to hurt them, it is trying to be helpful to everyone.
That is what it has done, it has kept the rates low and everything else
in that perspective.
So it has kind of got rid of the big scare that everybody thought
there was there with tribes managing something like that.
Question 3a. And just out of curiosity, how much of that power is
used on tribal lands and how much is used off of tribal lands? Do you
know that off the top of your head?
Answer. Mission Valley Power (MVP) is a federally-owned electrical
utility celebrating its 25th year under Tribally-contracted management.
CSKT contracts MVP operations from the Bureau of Indian Affairs under
Title I of the Indian Self-Determination and Education Assistance Act
(ISDEAA)?. MVP provides electrical power to almost the entire Flathead
Indian Reservation, which has a population of 28,359 according to the
2010 census. MVP employs around 80 people, with total revenue of
$25,876,105 in FY 2012. It should be noted that CSKT does not keep any
of that revenue as profit--the money stays within the federal program.
MVP does not keep track of the Indian or non-Indian status of its
customers, but it currently services 19,400 electrical meters, serving
over 16,500 customers. CSKT Tribal membership is currently around 7900
people, with roughly half of that 7900 living on the Reservation.
Consequently, and as stated at the hearing, even when taking into
account the Reservation residents who are members of Indian tribes
other than CSKT, MVP has more non-Indian customers than Indian
customers.