[Senate Hearing 114-536]
[From the U.S. Government Publishing Office]
S. Hrg. 114-536
EXAMINING THE DEPARTMENT OF THE
INTERIOR'S LAND BUY BACK PROGRAM FOR TRIBAL NATIONS, FOUR YEARS LATER
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HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
DECEMBER 7, 2016
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
U.S. GOVERNMENT PUBLISHING OFFICE
23-536 PDF WASHINGTON : 2017
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COMMITTEE ON INDIAN AFFAIRS
JOHN BARRASSO, Wyoming, Chairman
JON TESTER, Montana, Vice Chairman
JOHN McCAIN, Arizona MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska TOM UDALL, New Mexico
JOHN HOEVEN, North Dakota AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Anthony Walters, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on December 7, 2016................................. 1
Statement of Senator Barrasso.................................... 1
Statement of Senator Daines...................................... 4
Statement of Senator Heitkamp.................................... 7
Statement of Senator Lankford.................................... 38
Statement of Senator Tester...................................... 2
Statement of Senator Udall....................................... 5
Witnesses
Azure, Hon. Floyd, Chairman, Assiniboine and Sioux Tribes, Fort
Peck Reservation............................................... 14
Prepared statement........................................... 16
Cobell, Turk, Treasurer, Cobell Board of Trustees................ 22
Prepared statement........................................... 24
Connor, Hon. Michael L., Deputy Secretary, U.S. Department of the
Interior....................................................... 7
Prepared statement........................................... 9
Monette-Barajas, Melvin, President/Executive Director, Indigenous
Education, Inc................................................. 25
Prepared statement........................................... 26
Tatsey, Hon. Terry, Vice-Chairman, Blackfeet Nation.............. 20
Prepared statement........................................... 21
Appendix
Burke, Hon. Gary, Chairman, Board of Trustees, Confederated
Tribes of the Umatilla Indian Reservation, prepared statement.. 41
Franken, Hon. Al, U.S. Senator from Minnesota, prepared statement 41
McClanahan, John H., Director, Land Buy-Back Program for Tribal
Nations, letter................................................ 48
Onnen, Hon. Liana, Chairwoman, Prairie Band Potawatomi Nation,
prepared statement............................................. 45
Weston, Hon. Troy Scott, President, Oglala Sioux Tribe, prepared
statement...................................................... 43
EXAMINING THE DEPARTMENT OF THE
INTERIOR'S LAND BUY-BACK PROGRAM FOR TRIBAL NATIONS, FOUR YEARS LATER
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WEDNESDAY, DECEMBER 7, 2016
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. John Barrasso,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
The Chairman. I call this oversight hearing to order. Let
me welcome everyone back.
Today's hearing will focus on the Department of Interior's
Land Buy-Back Program, including the Cobell Scholarship Fund.
In 2010, Congress passed, and the President signed into
law, the Claims Resolution Act of 2010. The title in this Act,
the Individual Indian Money Account Litigation Settlement,
authorized and ratified the Cobell settlement agreement. The
purpose of the settlement was to resolve a class action lawsuit
regarding the Federal Government's accounting and management of
over 300,000 individual Indian Trust accounts.
The settlement agreement established and deposited $1.9
billion into the Trust Land Consolidation Fund. Those funds are
to be expended during the ten-year period from 2012 to 2022.
Additionally, the settlement agreement established the
Indian Education Scholarship Fund, with funds to be transferred
from the Trust Land Consolidation Fund of up to $60 million.
On December 17th, 2012, the Land Buy-Back Program for
Tribal Nations was established through a secretarial order.
The Land Buy-Back Program implements the land consolidation
component of the Cobell settlement by purchasing fractional
land interests from willing sellers and then holding those
newly purchased lands in trust for the respective Indian
Tribes.
According to the Department of interior, there are
approximately 243,000 owners of nearly 3 million fractional
interests in 150 Indian Reservations. Approximately 90 percent
of those interests are located within 50 Indian Reservations.
The settlement also establishes an account called the
Indian Education Scholarship Holding Fund. These funds are to
be used to provide financial assistance to Native American
students to defray the cost of attendance at both post-
secondary vocational schools and institutions of higher
education. Contributions to this fund are allocated by a
formula from the Trust Land Consolidation Fund.
Last month, the Interior Department released its annual
status report on the Land Buy-Back Program. The report
highlights many statistics and informs us that approximately
$900 million of the $1.9 billion has been paid to 45,600
individuals to consolidate 1.7 million acres during the last
four years.
The report also suggests that despite the efforts of the
Land Buy-Back Program, the $1.9 billion provided in the
settlement was not enough. There is a floor chart that is
available for people to take a look at. In fact, the report
states and illustrates with these graphs that you can see that,
after the Land Buy-Back Program ends in 2022, the estimated
growth of fractional interests will return to pre-Program
levels and continue to grow.
Today's witnesses will help us determine the success and
effectiveness of the Land Buy-Back Program at its four-year
anniversary and should assist in the incoming Trump
Administration in considering this Program's viability.
Before I turn to the Vice Chairman for an opening
statement, I want to first acknowledge Senator Tester's
contribution to the Committee as both Chairman and Vice
Chairman. I understand Senator Udall will be incoming Vice
Chairman in the 115th Congress.
When Senator Tester was chairman of the Committee, we had a
good working relationship. When the roles switched, we
continued to have a good working relationship in a bipartisan
fashion. Nothing changed.
Let me say that in the few times we might have disagreed on
policy, we always agreed on the goal, and that was bettering
the lives of Tribal communities. We never lost focus, nor did
we waiver.
So I want to personally thank you, Senator Tester, for your
leaderships, your dedication to Indian Country. I want to also
include the same thanks to your staff.
So, Senator Tester, an opening statement.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Well, thank you, Chairman Barrasso. Thank
you for those kind remarks. And I want to echo those back to
you. I think you are going to be moving on to a different
committee as chairman this next Congress. I just want to thank
you for your straightforwardness, your ability to be able to
get things done on behalf of Indian Country, and, quite
frankly, the, I think, honest communication that we have had.
When we disagreed, we disagreed, but we weren't disagreeable.
So thank you for that. And I too want to thank your staff for
their good work. They have been very easy to work with and we
thank you for that.
I want to thank you for holding this hearing, because I
think the last hearing we had on the Land Buy-Back Program was
two years ago, so I am looking forward to hearing about what
progress has been made in the last couple years. Land
fractionation is a serious issue plaguing Indian Country, and I
am glad to see this Committee's continued commitment to address
it.
Before I go any further, though, I want to acknowledge the
work of Elouise Cobell. Two weeks ago she was awarded,
posthumously, the Presidential Medal of Freedom, and she could
not have been more deserving. We would not be talking here
today about the success of a land consolidation program or
giving millions of dollars in scholarship to Native youth if it
wasn't for her decades-long fight.
Her son Turk is here testifying in his capacity as board
member of the Cobell Scholarship Fund, so I do want to
congratulate Elouise's family on her award and thank Turk for
carrying on her legacy through your hard work helping Native
students across the Country.
As a result of Elouise's efforts in the Cobell settlement,
the Buy-Back Program has already been great sized in Indian
Country. Since its start four years ago, the Program has paid
out over $900 million to individual landowners with fractional
interests in land on 30 reservations, restored nearly 1.7
million acres of land to Tribal Nations, and the Program still
plans to reach 105 additional locations over the next five
years.
Addressing the problem of land fractionalization is an
important step for Indian Country. By returning these lands to
Tribes, the Land Buy-Back Program has helped Tribal Governments
in a number of ways, including addressing jurisdictional
issues, protecting cultural and natural resources, and
developing infrastructure and businesses.
The Program has also provided vital funding to the Cobell
Scholarship Fund, which has already helped hundreds of Native
students help pay for post-secondary education. In Montana
alone, 146 Native students have received a total of $369,000 in
the Scholarship's first year. I have always believed that
education is a foundation for the future of Indian Country, and
I look forward to hearing more about this work from Turk and
Mr. Monette.
Despite these successes, we have heard some concerns from
Tribes. The Land Buy-Back Cooperative Agreement process can be
cumbersome and doesn't allow for a lot of flexibility for
Tribes. Many Tribes are interested in when and how the Program
can continue in their communities even after its initial run.
So I hope the discussion today highlights the good work
that has occurred thus far and identifies opportunities to
improve it. There is no question that more can be done with
this Program to address land fractionation in Indian Country.
I would like to welcome Chairman Azure of the Fort Peck
Reservation. Good to have you here. Vice Chairman Tatsey from
the Blackfeet for sharing their thoughts on the Land Buy-Back
Program. I know Fort Beck has had a few hiccups with the
program, but overall was able to consolidate over $78 million
in fractionated lands. And Blackfeet offers totaling over $270
million have just gone out. I understand everyone has high
expectations due to the level of outreach conducted by the
Blackfeet Tribal members. So I want to commend you both for
your traveling here today to testify and for all your service
to tribal communities.
Finally, as I talked about in the opening, and as the
Chairman talked about in his closing, I know everyone is aware
that in the next Congress I am going to be taking over Ranking
Member of the Veteran Affairs Committee. I want to assure
everybody that I am going to remain engaged in tribal issues
just as I have in the past. As was pointed out, Senator Udall
will have this seat next Congress and will do a fine job in
that capacity. But I am going to remain a member of this
Committee and an active one.
There is a whole lot of work that needs to be done for
Indian Country, and I am committed to make sure the Tribes
across Montana and across this Country have their voices heard
and that we continue to improve and uphold the trust and treaty
obligations that we have. So I look forward to working with my
colleagues when this Committee convenes in January.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Tester.
Senator Daines?
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Chairman Barrasso and Ranking
Member Tester.
I would like to wish a very warm welcome to two Montana
Tribal leaders we have with us today. I had a chance to see
both of them in my office here this morning, Chairman Floyd
Azure of the Fort Peck Tribes and Vice Chairman Terry Tatsey of
Blackfeet Nation.
It is certainly a rare occasion that we have two Montanans
at the witness table and we have two Montanans here on the
dais. I think we are heading in the right direction with more
Montanans ever here on Capitol Hill.
Let me brag a little bit about our two witnesses. Chairman
Azure was selected to his current term of office in October
2015 and previously served as chair from 2009 to 2012. He also
served on the Tribal Executive Board prior to that. Chairman
Azure was raised on the Fort Peck Indian Reservation. He owns
and operates an auto body repair shop in Poplar, Montana.
Vice Chairman Tatsey was elected to the Blackfeet Tribal
Council just this past June. From 1993 until last year he
served as Director of Institutional Development of Blackfeet
Community College, where he developed educational programs and
helped build many of the school's facilities. Prior to service
to the college, he worked as a rancher for about six years, and
prior to that he worked at the USDA in a research partnership
with AGCanada, as well as the Blackfeet Tribe.
It was also a pleasure to visit with both of you and your
fellow Tribal members on your reservations this past summer.
When we were back home during the summer work period, I spent
time on both your reservations.
Chairman Azure and Vice Chairman Tatsey, it is truly an
honor to have you here in Washington, D.C. today. Thanks for
making the long trip out.
Well, Montana is home to 12 federally recognized Indian
Tribes and also the State recognized Little Shell Tribe. We
have seven Indian reservations, which are some of the most
fractionated in our Nation.
Montana was also home to Elouise Cobell, a member of the
Blackfeet Nation, of course, who initiated that settlement, the
famous Cobell-Salazar class action lawsuit on behalf of herself
and nearly 500,000 fellow Native Americans which resulted in
the establishment of the Land Buy-Back Program. As we know, she
is the namesake of the Cobell Scholarship Fund.
As Senator Tester mentioned earlier, consolidating
fractionated trust lands is critical to economic prosperity on
Indian reservations and eradicating these outdated remnants of
the allotment era. While not perfect, the Land Buy-Back Program
has benefitted a majority of Montana's seven Indian
reservations. I look forward to the witness testimonies and
today's discussion.
Lastly, I do want to express my gratitude to Chairman
Barrasso, Vice Chairman Tester for their service to this
Committee and this Congress. I think you both have been great
leaders in moving this Committee along very efficiently and
effectively. I know it is the last Committee hearing we are
going to have this year, and I wish you two the very best here
in your new responsibilities.
The Chairman. Thank you very much, Senator Daines.
Senator Udall?
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you very much. I just want to echo the
remarks that others have made, Chairman Barrasso and Vice
Chairman Tester. The good work you have done, the
bipartisanship, the way you have worked together. And it didn't
matter whether one was in the chairman or in the vice chairman;
you just continued to work in a really positive way for Indian
Country.
So I thank you very much for that, and I know that Native
Americans across the Country feel very good about that. And I
also thank you for your kind comments about me assuming the
chair. We are going to miss you. We didn't say whether you are
staying on the Committee, Mr. Chairman, but we hope you are.
The Chairman. I look forward to staying on the Committee,
Senator Udall, and serving with you.
Senator Udall. Good.
The Chairman. Thank you very much.
Senator Udall. Good. Well, we look forward to that.
I would like to briefly recognize a couple of New Mexicans
on today's panel. Welcome to Mr. Melvin Monette and Deputy
Secretary Mike Connor. Mr. Monette has been a tireless advocate
for Indian education for many years, and we appreciate you
sharing your valuable input here today.
And this is likely Deputy Secretary Mike Connor's final
hearing before this Committee, at least as part of the current
administration. I want to thank you for your outstanding
service as Commissioner of the Bureau of Reclamation and as
Deputy Secretary. You also served many years with Senator
Bingaman on the Committee, so you are someone who really knows
how Washington works and I hope that works for you.
New Mexico is very proud of you, Mike Connor, and we
appreciate all of your service. And I want to recognize that
you have been a tireless advocate for Indian Country. Some of
the most challenging issues at the Department have landed on
your plate.
I want to single out your work on the complex issue of oil
and gas development around Chaco Canyon. Chaco Canyon, as you
know, is a major center of ancient Pueblo culture, rich in
archeology. Many of the Tribes of the Southwest have ancient
ties to this sacred area. And I appreciate you accompanying me
there to Chaco to meet with key stakeholders, and I appreciate
your efforts to incorporate the Bureau of Indian Affairs in the
resource management planning process.
The Dakota Access Pipeline has shined a light on the
importance and necessity of tribal consultation. Tribal
consultation must be conducted in the right way and at the
right time in order to foster cooperation and avoid conflict.
Tribes are sovereign entities; they have the right of
significant input on development impacting their land, their
resources, their sacred sites. Chaco Canyon is a sacred site
for Tribes and it is an important site for New Mexicans and all
Americans. Resource development around Chaco deserves careful
consideration.
I know you understand and appreciate the need of meaningful
consultation, and I would like to take this opportunity also to
discuss the Dakota Access Pipeline and the need for meaningful
tribal consultation. I appreciate that there is a range of
views on the pipeline within this Committee. For my part, I
support the Administration's recent action to deny the current
route and evaluate other alternatives. The events that have
unfolded in North Dakota should serve as a wakeup call to us.
In response to concerns raised by Tribes about the
pipeline, the Administration held formal government-to-
government consultation with Native Americans throughout the
Country and came to Albuquerque, New Mexico. We had a very good
session there. If we need congressional action to reform
current law, I am all ears on what it is and would love to hear
about that. And I look forward to working with my colleagues on
this Committee to improve the consultation process.
Finally, I believe the Buy-Back Program has great potential
to help Tribes protect cultural and natural resources, and I
believe it can help improve services to tribal members.
Since December 2013, the Federal Government has paid
approximately $900 million to individual landowners and has
restored in trust the equivalent of nearly $1.7 million acres
to the Tribes. This has major implications for the Tribes in my
State, including the Pueblos of Laguna and Zuni, and especially
the Navajo Nation, which has a large land base and many private
land inholdings that are potential candidates for buy-backs.
I Look forward to hearing from today's witnesses how the
Buy-Back Program is working and how we can improve on it.
Thank you very much, Mr. Chairman.
The Chairman. Thank you very much, Senator Udall.
Senator Heitkamp?
STATEMENT OF HON. HEIDI HEITKAMP,
U.S. SENATOR FROM NORTH DAKOTA
Senator Heitkamp. Thank you, Mr. Chairman. I feel somewhat
obligated to say something nice about Jon Tester, but it is
getting harder every day.
I think during the transition I think I tried to make you
chairman of the Committee, didn't I? I think I made a motion
back in the day to make him chairman. I do apologize; it was a
grave error on my part and a failure of judgment to do that.
No, in all seriousness, the Chairman has stated the
workings of this Committee pretty well; that we all come
together with one common purpose and in consultation with very
many witnesses. Senator Tester and I share a lot of
commonalities in terms of representing Great Plains Indians,
and some of the greatest challenges that we have are with the
large land tribes maintaining services, but also making sure
that our children have an opportunity for education, an
opportunity for betterment. I know that that we will, under new
leadership in this Committee, we will continue to advance the
cause of Native children and advance the cause of Native
people, and understand that we are all together.
I can't go with the member from New Mexico, our Senator
from New Mexico, taking credit for Melvin Monette. He is a
member of the Turtle Mountain Band of Chippewa and educated in
UND in North Dakota, and we are very, very proud of the work
that you do every day to advance the cause of Indian education,
Melvin. So thank you. I just wanted to make sure that everybody
knew he was from North Dakota, and not New Mexico.
The Chairman. Thank you for that clarification, Senator
Heitkamp.
Now is the time to turn to the witnesses. I do want to
remind the witnesses your full written testimony will be made a
part of the official hearing record today, so please keep your
statements to five minutes, so that we may have time for
questions. I look forward to hearing your testimony, beginning
with Deputy Secretary Connor.
STATEMENT OF HON. MICHAEL L. CONNOR, DEPUTY SECRETARY, U.S.
DEPARTMENT OF THE INTERIOR
Mr. Connor. Mr. Chairman, Ranking Member Tester, and
members of the Committee, thank you for the opportunity to
provide an update on the Land Buy-Back Program for Tribal
Nations.
I am incredibly proud to have served in an administration
that has made great progress in improving the government-to-
government relationship with sovereign Indian Nations and
significantly improving how the Federal Government fulfills its
trust responsibility to Native people.
One aspect of the progress made over the last eight years
has been in restoring tribal homelands. The Land Buy-Back
Program is a successful part of that legacy and I would like to
briefly highlight the Program's accomplishments, its
implementation schedule, and the need to work with the
Committee and Indian Country on long-term solutions to
fractionation.
In 2010, as mentioned, Congress enacted the Claims
Resolution Act to ratify and confirm the historic 2009 Cobell
Settlement Agreement. The Act provided a $1.9 billion trust
fund for the Land Consolidation Fund to compensate individuals
who willingly choose to transfer fractional land interests to
Tribal Nations at fair market value.
Less than a month following final approval of the
settlement, in 2012, Interior established the Buy-Back Program
to work collaboratively across Indian Country with both Tribes
and Individuals to realize this historic opportunity. I am
pleased to report that the Buy-Back Program is making
significant progress in accomplishing its goals.
Since it began making offers in December 2013, the Program
has paid more than $925 million to individual landowners and
restored the equivalent of nearly 1.7 million acres of land to
Tribal Governments. To date, we are four years into a ten-year
program, we have spent 60 percent of the fund for land
acquisition activities, and we have only expended 22 percent of
the resources available for administrative costs. We are proud
of that record.
The Program has relied on significant cooperative efforts
both internally within the Department and with Indian Country
in achieving these results. It is important to recognize that
our government-to-government working relationship with Tribes
has led directly to the Program's successes so far. The Program
works with Tribes to tailor the implementation strategy at each
location, including partnering with Tribes through agreements
and sharing mapping and other information with Tribes.
Also, by aligning Program resources with Tribal goals and
acquisition priorities at each location, we are upholding and
respecting Tribal sovereignty and self-determination in a
meaningful way. We have created or increased Tribal ownership
in more than 30,000 tracts of land. In fact, we brought Tribal
ownership to greater than 50 percent in more than 11,000
tracts, consisting of nearly 1.8 million total acres, through
the last fiscal year.
For example, the Program has helped achieve a nearly 300
percent increase in tracts with greater than 50 percent Tribal
ownership at the Fort Belknap Reservation of Montana. We are
already seeing the impact that the Program is having on Tribal
communities, and our 2016 status report highlights initiatives
that Tribes are undertaking with consolidated lands, such as
economic development, housing, and cultural preservation.
The Program has actively gathered input from Tribal
Governments and landowners to determine its implementation
schedule, which now includes 105 locations where activities
will begin by 2021. These locations represent nearly all
eligible landowners' fractional interests and equivalent acres.
Some Tribes on our schedule have expressed concern that the
Program's success means that funds would not be available to
make offers at their location. I want to allay this concern by
emphasizing that the Program is managing resources in a manner
that ensures that funds will be available at a minimum for
those 105 locations we have already announced.
Let me talk about future work to address fractionation.
Approximately 90 million acres of Indian Trust land base were
lost in 1934 because of the Federal allotment policies that
were initiated in 1887. This is an amount larger than the great
State of New Mexico.
Fractionation now affects nearly 11 million tract acres of
remaining allotted land across Indian Country, locking up a
significant area and creating an overly complicated land tenure
status where single tracts of land, like several at Crow Creek
or Navajo, have more than 1,200 landowners. Even with the
Program's significant progress to date and the results expected
through 2022, fractionation will continue to be an extremely
complicated, ongoing challenge in the long term. We estimate
that more than 4 million equivalent acres may still exist after
the consolidation fund is fully expended in 2022, given that
fractionation continues to grow each and every day.
This past spring, Secretary Jewell directed the Program's
Oversight Board to pursue an analysis of options to extend the
life of the Program so that additional future participants may
benefit and so the Program could return to locations where
implementation has already occurred. Preliminary ideas for
discussion with Indian Country at Interior's next Listening
Session include options for potentially continuing the Program
and other policy changes.
We are seeking to be transparent by showing our significant
results to date in the context of the estimated breath of
fractionation in the long-term. We are also looking to pursue
much-needed conversations with Congress and with Indian Country
about how we can work together for a longer-term solution, and
our analysis helps show how important it is to remain focused
on addressing fractionation to preserve trust land for future
generations.
Thank you for the opportunity. I look forward to your
questions.
[The prepared statement of Mr. Connor follows:]
Prepared Statement of Hon. Michael L. Connor, Deputy Secretary, U.S.
Department of the Interior
Introduction
Good afternoon, Chairman Barrasso, Ranking Member Tester, and
Members of the Committee. Thank you for the opportunity to provide an
update on the Land Buy-Back Program for Tribal Nations (Buy-Back
Program or Program) on behalf of the Department of the Interior.
I am pleased to report that the Buy-Back Program has made
significant progress since I last provided testimony to the Committee.
I appreciate the continued interest of the Committee and the active
engagement the Program has had with Committee staff over the last
several years.
The Buy-Back Program is currently completing its fourth calendar
year. The first year was largely focused on planning, consultations,
research, analysis, and one-on-one engagement with tribal leaders and
individuals. This was a critical effort that has directly led to the
significant success we have seen in just a short time. The Program thus
far has made more than $2.5 billion in offers to nearly 123,000 unique
individuals--half of all eligible landowners--for interests at 34
locations. And since it began making those offers in December 2013, the
Program has paid more than $925 million to individual landowners and
restored the equivalent of almost 1,700,000 million acres of land to
tribal governments.
At the end of fiscal year 2016, tribal ownership was greater than
50 percent in more than 11,000 tracts consisting of nearly 1.8 million
total acres. In particular, for example, the Program helped achieve
nearly a 300 percent increase in the number tracts with greater than 50
percent tribal ownership at the Fort Belknap Reservation of Montana, as
highlighted in our 2016 Status Report.
Every day we are seeing the difference being made by this Program,
which is just one example of this Administration's commitment to
provide more sustainability for landowners, their families, and tribal
communities for the benefit of generations to come. The Department has
been taking significant and lasting steps toward fulfilling President
Obama's goal of strengthening and investing in tribal communities
through this exceptional opportunity. I believe that the partnerships
and collaboration we have entered into in Indian Country will have a
lasting, positive impact on relationships with tribal nations for years
to come.
Program Background
The historic legislation to ratify and confirm the 2009 settlement
between Plaintiffs and the Federal Government in the Cobell litigation
was enacted in 2010. The Claims Resolution Act provides a foundation
for addressing the fractionation of Indian lands that was set in motion
under the long repudiated policies of allotment and assimilation. The
Cobell Settlement was approved with finality on November 24, 2012,
following the exhaustion of appeals through the U.S. Supreme Court.
In that legislation, Congress enacted the $1.9 billion Trust Land
Consolidation Fund to compensate individuals who willingly choose to
transfer fractional land interests to tribal nations at fair market
value. Less than a month following final approval, the Department
established the Buy-Back Program to work collaboratively across Indian
Country, with both tribes and individuals, to realize this historic
opportunity.
In recognition of the size and importance of the Settlement, then-
Secretary Salazar established the Buy-Back Program in the Office of the
Deputy Secretary. The Secretary also established an Oversight Board,
chaired by the Deputy Secretary and including as members the Solicitor,
the Assistant Secretary-Indian Affairs, the Director of the Bureau of
Indian Affairs (BIA), and the Special Trustee for American Indians, to
ensure senior level attention and to facilitate accountability and
coordination across the Department. The Buy-Back Program Director is
responsible for leading and coordinating the efforts of the various
offices and bureaus with responsibility for assisting in implementing
the Program. The Program Director reports directly to me and meets
regularly with the Oversight Board.
Impact of Fractionation
Although the federal policy of Allotment ended in 1934, the impacts
of that policy continue to reverberate across Indian country.
Approximately 90 million acres--larger than the state of New Mexico--of
tribal lands were lost, many of those lands sold to non-Indians. In
addition, some allotments provided to individuals were held in trust or
restricted status. These trust and restricted allotments often pass to
the children, spouses, and other relatives of the original and
successive landowners, who thus inherit undivided common ownership
interests in the land. As a result, fractionation of those original
trust and restricted allotments has grown exponentially over
generations.
Fractionation now affects nearly 11 million tract acres of
remaining allotted land across Indian Country, locking up a significant
area and creating an overly complicated land tenure status where single
tracts of land, like those at Crow Creek or Navajo, have more than
1,200 landowners. When tracts have multiple co-owners, it is difficult
to obtain the required approvals for leases or other uses of such
lands. As a result, many tracts are unoccupied and unavailable for any
purpose. For example, during FY 2016, more than 65 percent of
individual owners received $25 or less in land-related income to their
Individual Indian Money (IIM) account.
In addition, as a result of fractionated ownership of allotted
lands and the checker-boarded nature of land ownership patterns on many
reservations, tribes are experiencing major challenges that impact
tribal sovereignty and self-determination. For example, fractionated
ownership can make it hard to protect or obtain access to sacred or
cultural sites, and the checkerboard ownership pattern creates
jurisdictional challenges and ties up land within the reservation
boundaries, making it difficult to pursue economic development.
The Buy-Back Program is the primary land consolidation effort, and
the results to date are notable. As of September 2016, for locations
with Program sales, the total fractional interests decreased
approximately 21 percent from 2013 to 2016, with some locations in the
Great Plains and Rocky Mountain regions decreasing by approximately 35
percent.
Program Overview
The principal goal of the Buy-Back Program is to reduce the number
of fractional land interests through voluntary sales that place
purchased interests into trust for tribes. These transfers consolidate
trust land bases for conservation, stewardship, economic development,
or other uses deemed beneficial by sovereign tribal nations.
The five overarching parameters that guide the design and
implementation of the Buy-Back Program are:
First, in 2012, the Department identified approximately 2.9
million fractional interests across approximately 150 locations
that may be purchasable by the Buy-Back Program. These
fractional interests are owned by more than 243,000 owners and
concentrated within a few locations in Indian Country. In the
first few years of implementation, the Program's schedule
focused primarily on highly fractionated locations. The
Department has since announced a total of 105 locations on
which implementation will begin by mid-2021. The schedule,
expanded in FY 2016, represents more than 96 percent of all
landowners and more than 98 percent of both purchasable
fractional interests and equivalent acres.
Second, the Settlement limits the amount of money the
Department may use for costs associated with the various phases
of implementing the Program. By law, no more than 15 percent
($285 million) of the Consolidation Fund may be used for
implementation costs in order to maximize the amount available
for purchasing fractional interests. Furthermore, the
Settlement requires that the Consolidation Fund be expended by
November 24, 2022. Accordingly, the Program must be cost
efficient and act expeditiously when administering the
Consolidation Fund.
Third, despite the large size of the Consolidation Fund, it
will not be sufficient to purchase all fractional interests
across Indian Country. The value of the land corresponding to
the equivalent purchasable acres exceeds $1.555 billion. The
Program estimates that more than 4 million purchasable
fractionated acres (valued at several billion dollars) will
remain following full use of the Consolidation Fund by 2022.
The Program has primarily focused on those acquisitions that
best reduce fractionation, address the effect of allotment,
promote tribal sovereignty, and facilitate economic
development. The Program is assessing the viability of
continued efforts and new solutions to address land
consolidation in the long term.
Fourth, the Program is a willing seller program, meaning
each individual landowner who receives an offer can choose to
sell or not sell his/her interests. Full use of the
Consolidation Fund depends on the number of interests
individuals choose to sell.
Fifth, the active participation of tribes in identifying
priority tracts is a crucial component of Program
implementation. The involvement of tribes in explaining what
land consolidation means on their reservations is also key.
Over the past four years, the Program has worked with tribes to
build relationships and expand outreach efforts to increase
landowner awareness.
The Program's land consolidation processes are categorized into
four phases: outreach, land research, valuation, and acquisition. The
outreach phase involves consultation with the tribe about various
planning matters, such as tribal priorities and involvement, and
working with communities so that individuals are aware of the
opportunity to sell fractional interests. As this initial outreach is
occurring, research concerning reservation lands happens
simultaneously. Once the research is complete, the Program values
fractionated tracts using various professional appraisal valuation
techniques (mass appraisals, project reports, or site-specific
appraisals). Finally, once fair market value determinations have been
made, the Program develops an offer set and mails offer packages to
eligible individuals for their consideration. Additional outreach
occurs after offer packages are sent to answer landowner questions.
Although the Program is active at multiple reservations
simultaneously, given this limited implementation funding, and timing
and practical considerations, such as a limited appraisal validity
period, the Program cannot actively operate at all locations
immediately, and is only active at each location for a limited period.
As the Program completes land consolidation activities at current
locations, it continuously starts operations at successive locations.
Government-to-Government Collaboration
Our government-to-government working relationship with sovereign
tribal nations across Indian Country has directly led to the Program's
successes thus far. The Program works with tribes to tailor the
implementation strategy to the needs and culture of each tribe,
including partnering with tribes through agreements, sharing
information and data, considering tribal feedback when developing the
Program's implementation schedule, and working to value and acquire
lands that are a tribal priority.
To date, the Program has entered into agreements with 40 tribes to
implement land consolidation activities on their reservations. These
agreements are of two types and present a way for tribes to formally
collaborate with the Program on implementation activities. First, the
Program has used cooperative agreements, which are legal instruments
similar to grants, representing the relationship between the Federal
Government (i.e., Buy-Back Program) and a recipient of funds to perform
certain activities. Second, it has entered into memoranda of agreement
(also known as memoranda of understanding) with several tribes. These
are used when there is an agreement to exchange information or
coordinate programs but no funding is provided.
The Program provides tribes with mapping information, ownership
information, and landowner information products at several points
throughout the implementation process including during priority tract
selection, before offers are sent, during the offer period, and after
the offer period closes. Tribes can use these products to plan outreach
events, conduct outreach activities, and identify tribal acquisition
priorities. Tribes may also use this information to plan for other land
consolidation activities.
The Program has considered tribal feedback when developing its
overall implementation strategy. For example, the Program reviewed
tribes' submissions to build its expanded implementation schedule. From
this Planning Initiative, the Program added 63 tribes to the schedule.
The Program continues to welcome tribal feedback through meetings and
its annual Listening Session.
Finally, as mentioned previously, tribes' identification of
acquisition priorities is an important part of the Program. The Program
works with tribes to identify priorities early in the implementation
process, and, to the extent possible, considers tribal priorities
during implementation. The Program also seeks to appraise these tracts
or acquire fractional interests in them. Program staff provides support
to tribes by using maps and other data to assist with selection of
priority tracts or areas.
Implementation Strategy--Schedule of Locations
The Buy-Back Program held an open solicitation from November 8,
2013, through March 14, 2014, during which tribes with jurisdiction
over the most fractionated locations were invited to submit letters of
interest or cooperative agreement applications to express their
interest in participating in the Program. In November 2014, the
Department announced 42 locations where land consolidation activities
such as planning, outreach, mapping, mineral evaluations, appraisals,
or acquisitions are expected to take place through the middle of 2017.
By including some less-fractionated locations in early implementation
efforts, the Program has gained experience and input to inform
implementation at future locations.
In November 2015, the Program announced a Planning Initiative to
develop an expanded implementation schedule. The two-pronged Planning
Initiative gathered input from tribes and landowners. The Program
received 57 Expressions of Interest from tribal governments and 27,500
individuals registered as willing sellers through the Planning
Initiative's deadline of March 11, 2016. Registration as a willing
seller in no way commits a landowner to sell--nor does it guarantee
that a landowner will receive an offer--it was simply the best way to
ensure the Program was aware of interest as a consideration for the
schedule. From that review, the Department added 63 more locations to
its schedule, which it announced in May 2016.
The 105 locations planned for Program implementation represent the
vast majority of the total landowners and fractionated land across
Program-eligible locations, representing more than 96 percent of all
eligible landowners as of 2013; more than 98 percent of both
purchasable fractional interests and equivalent acres; all of the 10
BIA regions with fractionated tracts; and all 19 states with fractional
interests.
Based on tribal feedback, the Program has used various criteria to
determine the best sequence of implementation, including: severity of
fractionation (a locations number of fractionated tracts, interests,
and acres); degree of ownership overlap between locations or geographic
proximity; diversity of geographic locations to maximize efficiency,
resources, and learning opportunities, especially for initial efforts
in order to facilitate learning; appraisal complexity; overall interest
of the tribe as demonstrated through the FY 2014 open solicitation and
FY 2016 Planning Initiative periods; number of owners who have
demonstrated an interest in selling fractional interests; and cost and
time efficiency.
Our pursuit of this aggressive implementation schedule will provide
new opportunities, but it will also yield new challenges. As we work
with locations that have more complicated terrains, appraisal
circumstances, and ongoing legal matters, we anticipate a greater need
to work closely with tribal governments to reach resolution. Items that
we continue to work through in collaboration include: public domain or
off-reservation lands; the potential purchase of ``restricted fee''
interests (which require an environmental screening process to ensure
that the Department is not taking lands into trust on behalf of a tribe
that may have environmental issues), and implementation of the Program
on land where multiple tribes may have jurisdiction, such as the Wind
River Reservation in Wyoming.
Our work to gain insight and lessons learned will remain constant
throughout the life of the Program.
Economic & Local Community Benefits
In addition to the significant impact we are seeing for land
consolidation, money received by landowners through the Program is
generating spending in local areas and supports economic activity.
According to an analysis completed by the Department's Office of Policy
Analysis in FY 2016, Program payments to landowners nationwide have
already contributed an estimated $911 million in value added to the
economy and $1.7 billion in economic output, and supported about 10,000
jobs nationwide. Landowners often spend income earned from land sales
in their local economies or have used this income to reinvest in
reservations.
There are additional ways in which the Program is having a positive
impact on tribal communities. For example, tribes earn income from
newly-consolidated lands, more than $9 million from land consolidated
through the Program since calendar year 2013. Some tribes have used the
new income to acquire land held in fee status.
Tribes that have participated in the Program are also exploring
ways to best use newly-acquired land. For example, the Salt River Pima-
Maricopa Indian Community of the Salt River Reservation in Arizona is
studying the potential commercial uses of 58 acres acquired under the
Buy-Back Program. Many other tribes have plans for further development
or protection of newly-consolidated lands. Some other examples of
tribal initiatives include:
The Oglala Sioux Tribe in South Dakota plans to construct
several new buildings in the Wakpamni Lake Community on land
consolidated through the Program, including space for local
food distribution storage, office space, a conference room,
community board room, multipurpose space, a civic center, and a
day care. The Tribe is also embarking on a major housing
program, aided by the recent acquisition of land through the
Program.
As a result of Program purchases, the Squaxin Island Tribe
in Washington State is now better able to protect its world-
class oyster beds. Without control of upland, there was always
a threat to development or logging that would impact shellfish,
especially if lands reverted back to fee due to fractionation.
Land secured in trust for the Crow Tribe in Montana will be
used for a new community water plant on land that is now 100
percent tribally owned as a result of the Program. The current
water plant is not able to provide drinkable water to the
growing community of approximately 5,000 individuals. This
effort demonstrates how the Administration and the Tribe are
working together to enhance Indian water rights, building on
the 2012 Crow Tribe-Montana Water Rights Compact which
authorized funding to plan, design and construct a Municipal,
Rural, and Industrial (MR&I) water system and to rehabilitate
and improve the Crow Irrigation Project.
Lessons Learned
As we continue to implement the Program, we have incorporated
lessons learned, best practices, and tribal feedback to enhance the
overall effectiveness of our implementation strategy. Each of our
annual Status Reports shares what we have heard and learned and how
that input is being reflected in our day-to-day operations.
For example, the Program partnered with the U.S. Census Bureau to
mail a survey to approximately 54,000 landowners with interests at 20
locations who were sent offers in calendar years 2014 and 2015. Nearly
6,000 landowners responded, and these responses will help the Program
better understand why landowners are or are not participating in the
Program and what, if any, improvements the Program can make to better
serve landowners.
In March 2016, for the third consecutive year, the Program gathered
tribal feedback at a Listening Session, which I hosted. The event
allowed federal officials to share programmatic updates and hear from
participants about improving Program implementation across Indian
Country. Key topics raised or emphasized by participants included
information sharing, coordination of Departmental efforts, the
voluntary nature of the Program, and the importance of consolidating
and restoring tribal lands to protect tribal culture and traditional
practices.
Both tribes and individuals have expressed a need to make
participants aware of the financial implications of receiving funds for
the sale of fractional interests. Towards that end, the Program,
through the Office of thee Special Trustee for American Indians and its
partners, has increased financial education opportunities at locations
scheduled to receive offers.
In October 2015, the Program hosted a Tribal Outreach Workshop to
facilitate discussion among tribes preparing for outreach and those
that had recently implemented the outreach phase of the Program. Tribes
shared lessons learned, including the importance of planning and
communication between BIA, OST, and Program staff; soliciting support
from tribal leadership; customizing outreach materials; inviting
landowners to events that may live on nearby reservations; and
providing landowners with other options if they choose not to sell
their land through the Program.
Future Work to Address Fractionation
The reduction in fractional interests through the Program is
encouraging, but the Land Consolidation Fund will not be sufficient to
purchase all fractional interests across Indian Country. The Program
estimates that more than 4 million equivalent purchasable fractionated
acres may still exist after it fully expends the Consolidation Fund,
which is expected to occur before November 24, 2022, the date by which
the Settlement dictates that any remaining funds be returned to the
U.S. Department of the Treasury.
Even with the Program's significant progress to date--including
increasing tribal ownership in nearly 11,000 tracts, consisting of
nearly 1.8 million acres, to greater than 50 percent--and the results
expected through 2022, fractionation will continue to be an extremely
complicated, ongoing challenge in the long term.
Sustained departmental, congressional, and tribal attention to a
range of measures will likely be necessary to address the problem and
maximize the value of the land base for the benefit of tribal
communities. Because fractionation continues to grow each day, the
progress achieved by the Program in reducing the overall number of
fractional interests will be compromised absent continued efforts.
In May 2016, Secretary Sally Jewell directed the Oversight Board to
pursue an analysis of options to extend the life of the Program so that
additional future participants may benefit and so that the Program
could return to locations where implementation has already occurred.
Preliminary ideas, for discussion with Indian Country at the Program's
next Listening Session, include options for continued land purchases in
the long-term and policy changes aimed at helping address problems
created by fractionation.
A long-term commitment to land consolidation will produce several
benefits, including improving government-to-government relationships,
increasing tribal sovereignty and self-determination, fostering
cultural preservation, and enhancing economic and social development.
The Department looks forward to working with the Committee and
leaders in the U.S. Congress on long-term strategies for land
consolidation and other efforts to address the issues caused by
allotment.
Conclusion
The Claims Resolution Act has provided a unique opportunity for the
Department and tribes, working together with substantial resources, to
help address a long-standing and serious problem. The Land Buy-Back
Program strengthens tribal sovereignty by transferring lands to tribes,
spurring economic development and unlocking the potential of tribal
lands. As we move forward together, we will continue to implement the
Program in a fair and equitable a manner that maximizes the use of
funds to consolidate tribal lands through voluntary purchases from
allottees.
We appreciate the Committee's interest in the Program, and look
forward to continued discussions to preserve and strengthen trust
lands.
The Chairman. Well, thank you very much. Welcome back to
the Committee. Thanks for your relationship with us over the
past several years. We appreciate you being here to testify
today.
Next I would like to turn to the Honorable Floyd Azure, who
is Chairman of the Fort Peck, Poplar, Montana. Welcome.
STATEMENT OF HON. FLOYD AZURE, CHAIRMAN, ASSINIBOINE AND SIOUX
TRIBES, FORT PECK RESERVATION
Mr. Azure. Good afternoon, Senator Barrasso and Senator
Tester and Senator Daines. I am Floyd Azure, Chairman of the
Assiniboine and Sioux Tribes of the Fort Peck Reservation.
I am honored to present testimony today in support of
efforts to continue, and implementation of, the Tribal Nations
Land Buy-Back Program. The Cobell settlement endorsed by
Congress provided a total of $3.1 billion to address the
Individual Indian Money accounting claims, some mismanagement
of the underlying trust assets, and designated $1.9 billion to
purchase fractionated lands from individual Indians for
restoration back to the Tribes.
The Land Buy-Back Program created a rare opportunity to
restore land base through the Department of Interior's purchase
of fractionated trust land interests from willing individual
Indian owners. The Department of Interior commenced Land Buy-
Back efforts by first identifying the 40 Indian Reservations
with the highest incidents of fractionation and establishing
projected purchase ceilings for each reservation. The Fort Peck
Reservation was ranked as the reservation with the sixth
highest number of purchasable fractionated interest with an
initial purchase ceiling price of $80,082,500.
In July 2015, the Fort Peck Tribes and the Interior entered
into a cooperative agreement to provide landowner education
prior to and during implementation of the Program on the Fort
Peck Reservation. The Department of Interior began
implementation in mid-September 2015 and sent initial offers to
the landowners of Fort Peck Reservation lands that included
mineral tracts under lease and production.
These initial offer packages were determined in error as
the Department of Interior had determined mineral tracts under
production were not purchasable due to complexities of the
valuation of producing mineral tracts. Thus, the initial offers
were followed by a second wave of corrected offers that
excluded producing mineral tracts, but did include mineral
tracts under lease with a new valuation that included the
mineral lease rental.
The confusion with the initial offers and corrected offers
caused skepticism and distrust of the Buy-Back Program. Despite
the fact that the Department of Interior and the Tribes held
numerous additional outreach sessions to explain the offer
packages to the landowners and provide information on the
valuation process, only 38.9 percent of the purchasable
fractionated interests were acquired. For this reason, we think
that another round of offers should go out at Fort Peck so that
my Tribe can enjoy the full benefit of what was planned for
Fort Peck for the mistake by the Program.
Nevertheless, at the conclusion of the Program, an
equivalent of 218,340 acres were acquired for the Tribes, at a
total cost of $69,838,840, which was approximately $11,000,000
short of the initial purchase ceiling allocated to the Fort
Peck Reservation. The Land Buy-Back Program greatly assisted
with the overall goals of Tribal land restoration and
consolidation and placed the Tribe in a minority ownership
position in 3,175 tracts and a majority ownership position in
1,292 tracts. Further, the Tribe has leased a majority of the
equivalent acreage acquired of 218,340 acres for a significant
increase in Tribal agricultural land revenue.
However, fractionated land ownership continues to exist
after the Buy-Back Program. Presently, 4,609 fractionated
tracts with an equivalent acreage amount of 702,332 remain in
individual Indian fractionated ownership, illustrating the fact
that additional consolidation efforts are critical to fully
restore the Fort Peck Reservation land base. Additionally,
these remaining fractionated interests are an ongoing
management burden for the Fort Peck Agency Bureau of Indian
Affairs.
Thus, the Fort Peck Tribes support the continuation of the
Land Buy-Back Program and have suggestions for improving the
Program. In terms of the way to improve the Program, we would
recommend the Tribes be empowered to craft and carry out the
implementation of the Program. We feel the success of the
Program was encumbered by the Department of Interior's
cumbersome approval process for all activities, including
travel. Tribes should be allowed the autonomy to conduct
outreach efforts as they deem effective without the burdensome
oversight of the Interior.
Second, we would recommend extending the shelf life of the
appraisals. Right now, the Department of Interior appraisals
for the Buy-Back Program has a shelf life of nine months
established by the Department of Interior policy. However,
standard trust land appraisals outside the Land Buy-Back
Program have a standard shelf life of one year and can be
extended if transactions are not complete. Extending the shelf
life of the appraisals would allow for several waves of
landowner offers without expending additional administrative
funds to update such appraisals.
Third, we believe there needs to be a greater coordination
in consultation with the Tribes in the determination of the
purchasable and non-purchasable tracts that would allow the
Tribe to develop strategies such as mandatory home site leases
for tracts with homes to maximize the number of tracts for
purchase.
Fourth, we think that the Program should be expanded to
offer acquisition of land that only has one owner. Across
Indian Country, some lands are still owned by one owner
although these lands have the potential to become fractionated
upon the death of the landowner. Additionally, true land
consolidation must include restoration of reservation fee lands
to Tribal ownership. Allowing the Program to purchase available
fee lands would enhance consolidation and maximize Tribal
control and development of the Reservation.
Finally, the area where we see the need for greater
legislative change is in the Education Scholarship Fund. We
understand that the Cobell Settlement Scholarship Fund now has
approximately $40 million. However, the Fund has resulted in
only $3 million in actual student scholarships awarded. While
the land acquired on the Fort Peck Reservation resulted in a
significant contribution to the Fund, there is no assurance
that this Fund will provide any educational benefits to our
members. The Fort Peck Tribes recommend revising the management
of the Scholarship Fund to allow Tribal participation in the
use and award of the scholarship funds.
I would be happy to answer any questions. Thank you.
[The prepared statement of Mr. Azure follows:]
Prepared Statement of Hon. Floyd Azure, Chairman, Assiniboine and Sioux
Tribes, Fort Peck Reservation
Good afternoon. Chairman Barasso, Senator Tester and honorable
members of the Senate Committee on Indian Affairs, I am Floyd Azure,
Chairman of the Assiniboine and Sioux Tribes of the Fort Peck
Reservation. I am honored to present testimony today in support of
efforts to continue and improve implementation of the Tribal Nations
Land Buy-Back Program initially established by the 2010 Claims
Resolution Act that included the Cobell settlement. The Cobell
settlement, endorsed by Congress, provided a total of $3.1 billion to
address Individual Indian Money accounting claims, some mismanagement
of underlying trust assets, and designated $1.9 billion to purchase
fractionated lands from individual Indians for restoration back to
Tribes.
The General Allotment Act and subsequent allotment acts awarded
lands held collectively by Tribes to individual Indians which
drastically diminished Tribal land bases and resulted in a loss of over
90 million acres of Tribal lands. Individual Indian allottees and their
heirs soon lost meaningful management authority of allotted lands due
to the onset of fractionated ownership. Congress recognized the failure
of the allotment policy and ended the practice in 1934 with adoption of
the Indian Reorganization Act. Further, Acts of Congress have created
tools to attempt correction of the allotment of Tribal lands and
provide opportunities for Tribal acquisition of fractionated lands;
however, none of these efforts provided critical funding to achieve
widespread Tribal land base restoration and consolidation efforts. Land
restoration efforts that reduce fractionated land ownership will
enhance Tribal control over reservation lands and reduce the management
responsibilities of the Federal Government for highly fractionated
lands.
Fort Peck Participation in the DOI Land Buy-Back Program for Tribal
Nations
The Land Buy-Back Program for Tribal Nations created a rare
opportunity to restore Tribal land bases through the Department of
Interior's (DOI) purchase of fractionated trust land interests from
willing individual Indian owners. DOI commenced Land Buy-Back efforts
by first identifying the 40 Indian Reservations with the highest
incidence of fractionation and establishing projected purchase ceilings
for each Reservation. From the outset, Tribes challenged the purchase
ceilings as they did not appear based on the value or number of the
interests but instead on an allocation of the total available funding
for each reservation. Fort Peck was ranked as the Reservation with the
6th highest number of purchasable fractionated interest with an initial
purchase ceiling price of $80,082,500.
DOI also developed an Implementation Plan that included collecting
land data and research, valuation of lands designated purchasable,
outreach to individual landowners and, finally, acquisition. Fort Peck
has had a long-standing fee and trust land acquisition program and
initially proposed to assist the Department with collecting data on
Reservation lands, assisting with valuation and negotiating offers with
individual landowners. However, as the program evolved, DOI utilized
existing digital data for reservation lands and established a `mass
appraisal' process that relied largely on comparable land sales in
areas surrounding each reservation. Thus, opportunities for meaningful
Tribal involvement were diminished and only the outreach component was
available for Tribal implementation.
After negotiations with DOI, Fort Peck entered into a cooperative
agreement with the Department of Interior in July, 2015 to provide
landowner outreach and education prior to and during implementation of
the program on the Fort Peck Reservation. Pursuant to the approved
outreach efforts, the Tribes held events to educate and prepare
landowners for purchase offer packages. Tribes were also consulted to
establish priorities for purchase. However, Fort Peck, like most other
Tribes chose not to determine priorities to ensure that the Tribe did
not interfere with an opportunity for all willing landowners to
participate.
DOI began implementation in mid-September, 2015 and sent initial
offers to landowners of Fort Peck Reservation lands that included
mineral tracts under lease and production. These initial offer packages
were determined in error as DOI had determined mineral tracts under
production were not purchasable due to the complexities of the
valuation of producing mineral tracts. Thus, the initial offers were
followed by a second wave of corrected offers that excluded producing
mineral tracts but did include mineral tracts under lease with a new
valuation that included the mineral lease rental. Obviously, the
confusion with the initial offers and corrected offers, while not
applicable to all the offer packages, caused skepticism and distrust of
the Buy-Back Program. Despite, the fact that DOI and the Tribes held
numerous additional outreach sessions to explain the offer packages to
landowners and provide information on the valuation process, only 38.9
percent of purchasable fractionated interests were acquired.
At the conclusion of the program, an equivalent of 218,340 acres
were acquired for the Tribes at a total cost of $69,838,840.00, which
was approximately $11,000,000 short of the initial purchase ceiling
allocated to the Fort Peck Reservation. The Land Buy Back Program
greatly assisted with the overall goals of Tribal land restoration and
consolidation and placed the Tribe in a minority ownership position in
3,175 tracts and a majority ownership position in 1,292 tracts.
Further, the Tribe has leased a majority of the equivalent acreage
acquired of 218,340 acres for a significant increase in Tribal
agricultural land revenue.
However, fractioned land ownership continues to exist after the
Buy-Back program. Presently, 4,609 fractionated tracts with an
equivalent acreage amount of 702,332 remain in individual Indian
fractionated ownership illustrating the fact that additional
consolidation efforts are critical to fully restore the Fort Peck
Reservation land base. Additionally, these remaining fractionated
interests are an on-going management burden for the Fort Peck Agency
Bureau of Indian Affairs.
Continuation of the Land Buy Back Program
The Fort Peck Tribes support the continuation of the Land Buy Back
Program for Tribal Nations with additional funding beyond the $1.9 from
the Cobell Settlement. The program has placed the Tribes in a
decisionmaking position on many tracts and moved consolidation efforts
much further toward completion. However, additional funding, beyond the
Cobell Settlement funds, will be necessary to continue Tribal land base
restoration and consolidation efforts and to decrease the costly burden
of DOI management of fractionated land interests. The Land Buy-Back
Program is approaching $1 billion in land purchase expenditures with
many Reservations awaiting participation. While DOI reports detail the
specific number of individual landowner interests purchased, the data
also reveals a significant number of interests that remain in
individual ownership. With additional funding, the program can enhance
purchase efforts and also return to reservations for additional waves
of offers to maximize landowner participation.
Increase in Tribal Outreach Funding
DOI negotiated Cooperative Agreements with Tribes, including Fort
Peck, for Tribal implementation of outreach efforts to individual
landowners. Tribes generally wrote proposals for staff, space and
equipment needs and outreach event funds. While DOI relied heavily on
Tribes to promote the Land Buy-Back program and to educate landowners
on the benefits of Tribal land consolidation, the funds awarded to
Tribes fell far short to meet these lofty objectives. In fact, Fort
Peck received less than 1 percent of the established purchase ceiling
amount to conduct outreach efforts to Tribal landowners. Increased
funding to Tribes for the Outreach component of implementation would
maximize landowner participation. Further, DOI heavily monitored all
Tribal activities for outreach with a cumbersome approval process for
all activities, including travel. Tribes should be allowed the autonomy
to conduct outreach efforts as they deem effective and appropriate
without the burdensome oversight of the Cooperative Agreement scheme.
This oversight is contrary to promotion of self-determination policies
in other contractual agreements between the United States and Tribes.
DOI Land Purchase Infrastructure
During the last four years, the program has developed methods and
processes that have proven successful to achieve the objectives of the
program, while remaining well within the administrative cost limits
established in the Cobell Settlement. In fact, DOI reports indicate
that approximately $285 million of the funds allocated for
administration remain unexpended. The program has utilized the `mass
appraisal' process for valuation of Reservation trust lands that has
achieved tract values acceptable to individual trust landowners.
Further, the program has created an acquisition process that
efficiently generates landowner offers directly from the DOI's national
title system and allows for the immediate transfer of title of numerous
interests from the individual landowner to the Tribes on one deed. This
infrastructure has proven cost effective and efficient. The Fort Peck
Tribes recommend additional funding to allow the Program to continue,
without interruption, after expenditure of the Cobell funds, to
maximize the benefits of the land purchase infrastructure.
Appraisal Shelf Life
While DOI developed a cost effective `mass appraisal' process that
yielded satisfactory land values for individual landowners, the short
shelf-life of the appraisals is not reasonable. The DOI appraisals for
the Buy-Back program has a shelf-life of 9 months established by DOI
policy. However, standard trust land appraisals, outside the Land Buy-
Back program, have a standard shelf-life of one year and can be
extended if transactions are not complete. Extending the shelf-life of
the appraisals would allow for several waves of landowner offers
without expending additional administrative funds to update such
appraisals.
Appraiser Determination of Purchasable and Non-Purchasable Tracts
Throughout the last four-year implementation of the Land Buy-Back
program, Tribes have expressed confusion regarding DOI's determination
of which tracts are purchasable and which tracts are deemed non-
purchasable. On the Fort Peck Reservation, many landowners complained
that their purchase offers omitted tracts that they wished to sell.
Fort Peck was informed that the contracted appraisers determined which
tracts to include as purchasable. Information regarding the criteria
for purchasable tracts has not been clear. We understand that tracts
with structures were omitted from offers regardless of whether the
structure was a dilapidated outbuilding, barn or remnants of a long-
abandoned home. While it makes sense to avoid an offer with an
inhabited home, it does not make sense to exclude tracts with abandoned
or unused structures.
Coordination and consultation with Tribes in the determination of
purchasable and non-purchasable tracts would allow the Tribe to develop
strategies, such as mandatory homesite leases for tracts with homes, to
maximize the number of tracts for purchase. Further, Tribal
investigation of tracts would avoid exclusion or omission from purchase
offers for uninhabited, abandoned buildings.
Purchase of Non-fractionated and Fee Tracts
The Land Buy-Back Program purchased fractionated trust lands which
were defined as lands having more than one owner. Across Indian
Country, some lands are still owned by one owner although these lands
have the potential to become fractionated upon death of the landowner.
The Program should allow for offers to purchase lands owned by one
owner. Additionally, true land consolidation must include restoration
of reservation fee lands to Tribal ownership. Allowing the program to
purchase available fee lands would enhance consolidation and maximize
Tribal control and development of reservation lands.
Education Scholarship Fund
The Fort Peck Tribes understand the Cobell Settlement scholarship
fund, capitalized by matching DOI contributions for land purchases, now
has approximately $40 million. However, the fund has resulted in only
$3 million in actual student scholarships awarded. Land acquired on the
Fort Peck Reservation resulted in a significant contribution to the
fund. However, the current framework for management of the fund by the
Cobell Plaintiffs does not result in any assurance the fund will
benefit members of the Assiniboine and Sioux Tribes of the Fort Peck
Reservation. The Fort Tribes recommend revising the management of the
scholarship fund to allow Tribal participation in the use and award of
the scholarship funds. The Fort Peck Tribes, along with many Tribes,
voiced concerns regarding the scholarship fund management throughout
consultation on the Cobell Settlement. The Fort Peck Tribes have a
significant need for educational funds for the Fort Peck Tribal
College, student undergraduate and graduate scholarships, and funds to
promote Assiniboine and Sioux language and culture. I propose
developing a process for the Fort Peck Tribes to receive a percentage
of the scholarship fund commensurate with the contributions to the fund
from land purchases at Fort Peck.
Conclusion
The Land Buy Back Program for Tribal Nations was implemented on the
Fort Peck Reservation and a significant number of individual Indian
owned fractionated interests were restored to Tribal ownership. The
Fort Peck Tribes assisted with the outreach efforts through a
Cooperative Agreement with DOI.
In this vain, the Fort Peck Tribes support the continuation of a
DOI managed Land Buy Back Program with additional funding beyond the
Cobell Settlement Funds. However, we think it is critical that the Buy-
Back program return to Fort Peck, due to the previous erroneous offers
that land-owner confusion and limited participation. To improve these
efforts, I would recommend an increase in funds for Tribal outreach
efforts as such efforts are critical to maximize landowner
participation.
I would also recommend Tribal participation in the determination of
purchasable/non-purchasable tracts and to enhance the program to
purchase solely owned tracts and fee lands within the exterior
boundaries of a reservation. I also recommend an increase in the length
of shelf-life of appraisals to avoid costly updates to accommodate
additional waves of offers on each reservation.
Finally, I recommend a revision to the Cobell Scholarship Fund
management to allow Tribal education programs to directly receive a
percentage of funds contributed from land purchases on their particular
reservations. Such a scheme would insure that funds are utilized for
Tribal education priorities.
Thank you for the opportunity to share our perspectives and
concerns. I would be happy to answer your questions.
The Chairman. Thank you. Thank you very much for your
thoughtful testimony. We appreciate you being here.
Our next witness, please.
STATEMENT OF HON. TERRY TATSEY, VICE-CHAIRMAN, BLACKFEET NATION
Mr. Tatsey. Good afternoon, Chairman Barrasso and Committee
members. [Greeting in native language.] How are you doing?
First of all, I would like to recognize our Pikunii Woman
Warrior, Yellow Bird Woman, the late Elouise Cobell. But also
at this time I would like to recognize an uncle of mine that
was lost 75 years ago at Pearl Harbor, George Tatsey. Our
contribution to the military amongst Tribal Nations is
significant, and I want to recognize that.
The Chairman. George Tatsey. Thank you.
Mr. Tatsey. He lost his life in Pearl Harbor 75 years ago.
The Blackfeet Reservation is in its post-offer phase. One
of the concerns that we had to deal with initially was the
outreach and education component. We felt if a very well pre-
planned effort would have been conducted, it would educate our
landowners, those that had the potential to benefit from this.
So that was just a concern our people had and our Tribal
leadership had. Any time you get a large infusion of money into
Indian Country that have limited experience in dealing with
investments or purchases, short- or long-term, it is a real
high risk.
One of the bright spots that our Tribe benefited from by
being the last Tribe in Montana to implement the Program was
our Tribal Council and our community took a grassroots
initiative to create what we call the Pikunii Money Campaign.
It wasn't initially funded in the cooperative agreement; later
it was, and that is in the height of its outreach and education
right now, so a lot of our people are very aggressively
educating the potential beneficiaries on the financial
responsibility and opportunity they have with this money.
So it is a campaign that can be used as a template when
other Tribes are infused with large money in the future. There
is a pre- and post-assessment that is going to come from this,
so it is going to be an opportunity to do better things as we
move into the future.
Another challenge that was faced for this Program, although
we were the last Tribe, is the 45-day window from offer to
acceptance by the beneficiaries. So if we could take a look at
that as we move forward and ways to address that and extend
that, it is something that we feel is very important, and give
our people and the programs a better opportunity to make good
decisions as they are deciding whether to sell or not to sell
their fractionated portions. Some of them have large portions
of those fractionated interests.
Moving forward, I think this is something that we really
need to take a look at. The appraisal process right now has a
nine month shelf life, and as we move forward the consideration
is let's take a look at extending that window, if we extend
this program and move the program forward with corresponding
funding, because one of the things that is not going to end is
fractionation, unfortunately, of our properties. We are going
to get families that are not going to provide wills, and so
that fractionation, those challenges are going to be a part of
reality as we move forward in the future; not to the magnitude
that we are experiencing now, but they are still going to be
there. So I just wanted to share that with you.
So when we do appraisals with the current process, another
thing that we need to consider as we move forward is re-
appraisals, because minerals are discovered as we assess
properties along recreational mountain-front commercial
properties, those property values are going to increase, so
really reassessing the appraisal process for some of those
Tribes and tribal members that felt their lands and property
were undervalued. So that would be a recommendation as we move
forward.
And probably last, not least, is when we do things with
Indian Country or Tribal Nations, respectively, let's not use
the cookie cutter template, one size fits all. Tribes are
unique. Tribes are different. And we need to deal with them
that way and respect them that way.
Thank you.
[The prepared statement of Mr. Tatsey follows:]
Prepared Statement of Hon. Terry Tatsey, Vice-Chairman, Blackfeet
Nation
Introduction
Oki Tsa nii tahpii; (Hello How are You)
Recognize: Our Pikunii Woman Warrior; Yellow Bird Woman The late
Elouise Cobell,
The Land Buy-Back Program, currently in the Post-offer phase on the
Blackfeet Indian Reservation in Montana.
1. The initial point of concern is that both the Department
and Tribe agree that pre-program individual Financial Literacy
training and education was critical.
2. The Department and Tribe recognize that 45 days is a very
short time for individual offers and implement such an
important program.
3. The recommendation is to continue the current program with
corresponding funding beyond the agreed upon term, for tribal
members that will inherit land in the future.
A. Program Benefits (non-contiguous track appraisal): The
Blackfeet Tribe will be the last Tribe in Montana to implement
in the Buy-Back Program, we have benefitted from lessons
learned from other respective tribal Nations challenges. For
example, the Blackfeet Tribe has a substantial amount of tracts
that are non-contiguous. A notable benefit to the Blackfeet has
been the appraisal of non-contiguous tracks that were otherwise
not being appraised during prior implementation of the Buy-Back
Program.
B. Financial Literacy Education: Another benefit to the Tribe
has been the Department's willingness to change its policy
regarding financial literacy education. The Buy-Back Program
has created a potential economic benefit to our tribal members,
on a reservation with a significantly high unemployment rate.
However, poverty is directly correlated with education, or
the lack of. Many individuals receiving offers, some
significant, will lack the financial literacy needed to
efficiently manage their new fortune, should they accept. When
drafting the Cooperative Agreement, the Tribe included a line
item for voluntary financial literacy training to land owners.
The Department denied the Tribe's request. Although the Tribe's
Cooperative Agreement didn't allow a financial education
component, the Tribe met with various financial entities in an
attempt to provide financial literacy training outside the
Cooperative Agreement. The Tribe was successful with partnering
with various entities and the ``Pikuni Money'' campaign was
formed, with a mission of providing financial literacy training
to eligible land owners. Eventually the Tribe was able to
negotiate with the Department and an agreement was made to
amend the Cooperative Agreement which would fund a portion of
the Pikuni Money campaign as well as extending the length of
the Cooperative Agreement. The Tribe appreciates the
Department's effort in amending the Agreement. The Tribe is
aware that individuals will receive offers in the 6-7 figure
range. The Tribe is fully briefed on the unfortunate events
that occurred on other reservations, to similarly situated
individuals. The Tribe wants to be in a position to better
prepare its people for the aftermath of the Buy-Back Program.
The Tribe is very optimistic that the financial education
component of the Cooperative Agreement will greatly benefit the
people who participate.
Potential consequences of the Buy Back Program include:
Length to Accept Offer: The length of time that an offer has to be
accepted. This is a once in a life time event throughout Indian
Country. Deciding on whether or not to sell your land is a major
decision. Because the offer monies have already been allocated by the
Department, and the appraisals valid for nine (9) months, it would be
in the best interests of the eligible land owners if the offer period
could be extended past the 45 days.
Cooperative Agreement: The Cooperative Agreement, Outreach and Post
Outreach Process' need to be revisited. The Buy-Back Program is the
first of its kind. Many of the components needed to make the Program
work, were forged from scratch. The Tribe had no road map to follow
when creating its Cooperative Agreement. There was a lack of
cooperation on behalf of the Department to assist the Tribe with
creating the Agreement. For example, the Tribe asked for assistance
with regards to equipment: ``how much paper, pens and other supplies
should the Tribe contemplate using?'' The Tribe also requested copies
of other Cooperative Agreements from other tribes who had already
participated in the Program. The Department denied the Tribe's
requests. This was unfortunate because the Tribe on its own volition
was able to reach out to other tribes, and gain valuable insight and
information that the Tribe was able to incorporated into its
Cooperative Agreement.
Cookie Cutter mentality: The Tribe disagrees with the Department's
``cookie-cutter'' mentality towards the Tribe throughout Buy-Back
Program. The Department based its decisions to allow or not to allow
the Tribe to perform certain tasks based on what occurred on other
reservations during the Buy-Back Program. The Department's approach is
that if something was not successful at tribe A, then it wouldn't be
successful at Blackfeet, and vise versa. The Tribe has had to remind
the Department that the Blackfeet and each respective tribal nation are
different and must be treated as such.
Thank you.
The Chairman. Thank you so much for your testimony.
Mr. Cobell.
STATEMENT OF TURK COBELL, TREASURER, COBELL BOARD OF TRUSTEES
Mr. Cobell. Good afternoon, Chairman Barrasso, Vice
Chairman Tester, and distinguished members of the Committee. My
name is Turk Cobell, and I am pleased to be here this afternoon
on behalf of the Cobell Board of Trustees.
The CBOT was established under the settlement agreement
that established the Cobell Scholarship Program and resolved
the long-running class action litigation against the Department
of Interior and other Federal defendants known as Elouise
Pepion Cobell v. Jewell. The Cobell Settlement was authorized
by Congress on December 8, 2010, six years ago tomorrow, and
was granted final approval by the Court on November 24, 2012.
The role of the CBOT under the Cobell Settlement is to
serve as custodian of the scholarship funds, to govern the
Cobell Scholarship Program, and to report periodically to the
Secretary of Interior and Lead Plaintiffs on scholarship
activities.
As I stated, I am Turk Cobell, a member of the Blackfeet
Nation, the son of lead plaintiff, Elouise Cobell, and I am an
entrepreneur and also serve as the Treasurer of the CBOT. Other
members of the CBOT include Alex Pearl, a citizen of the
Chickasaw Nation of Oklahoma, who is an Assistant Professor of
Law at Texas Tech University School of Law and Chair of the
CBOT; Jeani O'Brien, a member of the White Earth Band of the
Minnesota Chippewa Tribe, who is a Professor at the University
of Minnesota; Pam Agoyo, a member of the Pueblo of Ohkay
Owingeh, Pueblo of Cochiti, and Pueblo of Kewa, who is also the
Director of American Indian Student Services and Special
Advisor to the President at the University of New Mexico; and
Dorothy Nason, a member of the Leech Lake Band of the Minnesota
Chippewa Tribe, who is a Professor at the University of British
Columbia. I will also mention that Elouise Cobell, the
principal plaintiff in the litigation and my mother that led to
creation of the Scholarship Program, was honored two weeks ago
by receiving the Presidential Medal of Freedom.
I am pleased to report that the Cobell Scholarship Program
is now well underway and is working extremely well. In fact, in
the 16 months since CBOT first began authorizing scholarship
awards, over 2,100 hundred individual Cobell scholarships have
been awarded to over 1,100 Native American and Alaska Native
students. The scholarship awards are $5,000 per semester for
undergraduates and $10,000 per semester for graduate and
doctoral students.
The Cobell scholarship awards to date total more $5.25
million, and the CBOT has authorized an additional $500,000 for
scholarships for the summer term 2017. Thus, the scholarships
authorized to date total more than $5.75 million. Moreover, the
quality of the applicants is remarkable. The combined average
GPA for students who received scholarships for the current
academic year is 3.46.
There is a huge unmet need for these scholarships in the
Native American community. Our scholarship administrator,
Indigenous Education, Inc. received nearly 3,600 scholarship
applications for the current academic year, but the funds
available were only sufficient to provide scholarships to 600
of those students.
There is some good news, however. The Scholarship Program
will continue to receive additional funds related to the Land
Consolidation Program up to a cap of $60 million. In addition,
the CBOT has invested the funds received conservatively,
principally in index funds managed by Vanguard, but the returns
to date have been excellent and have provided more funds for
scholarships. The availability of additional funding and
prudent asset management are both critical because CBOT is
required to operate the Cobell Scholarship Program as a
perpetual fund.
The CBOT did encounter several initial hurdles in
administering the Cobell Scholarship Program. The organization
originally selected, before the CBOT was formed, to handle
applications and to administer scholarships resigned before the
application process even began. The next organization was
selected and was overwhelmed by the number of applicants and
was not able to handle scholarship administration in a timely
or satisfactory manner.
Fortunately, CBOT replaced that organization earlier this
year with IEI, led by Melvin Monette, who is also testifying
today, and IEI has done a superb job in administering the
Scholarship Program. Moreover, in conjunction with replacing
the prior administrator, CBOT and IEI jointly proposed that the
administrative fee be cut in half, from 6 percent annum to 3
percent annum, and that has been done.
In getting the Cobell Scholarship Program operational and,
in particular, in working through the changes in
administrators, the CBOT has had the full support of the Lead
Plaintiffs, through their counsel, Bill Dorris, of Kilpatrick
Townsend, and the Department of Interior. At Interior, the
single most critical person has been the Solicitor, Hilary
Tompkins, who has been extraordinarily helpful to the Cobell
Scholarship Fund at every turn.
Thank you, Mr. Chairman. That completes my testimony, and I
would be pleased to answer any questions the Committee may have
[The prepared statement of Mr. Cobell follows:]
Prepared Statement of Turk Cobell, Treasurer, Cobell Board of Trustees
Chairman Barasso, Vice Chairman Tester, and distinguished Members
of the Committee, my name is Turk Cobell and I am pleased to appear
today on behalf of the Cobell Board of Trustees (CBOT). The CBOT was
established under the settlement agreement (the Cobell Settlement) that
established the Cobell Scholarship Program and resolved the long-
running class action litigation against the Department of Interior and
other federal defendants known as Elouise Pepion Cobell, et al. v.
Jewell (Cobell Litigation). The Cobell Settlement was authorized by
Congress on December 8, 2010--six years ago tomorrow--and was granted
final approval by the Court on November 24, 2012.
The role of the CBOT under the Cobell Settlement is to serve as
custodian of the scholarship funds, to govern the Cobell Scholarship
Program and to report periodically to the Secretary of Interior and the
Lead Plaintiffs on the scholarship activities. As stated, I am Turk
Cobell (a member of the Blackfeet Nation), the son of the lead
plaintiff, Elouise Cobell, and I am an entrepreneur and also serve as
the Treasurer of the CBOT. Other members of the CBOT include Alex
Pearl, a citizen of the Chickasaw Nation of Oklahoma, who is an
Assistant Professor of Law at Texas Tech University School of Law and
Chair of the CBOT; Jeani O'Brien, a member of White Earth Band of the
Minnesota Chippewa Tribe, who is a Professor at the University of
Minnesota; Pam Agoyo, a member of the Pueblo of Ohkay Owingeh, Pueblo
of Cochiti, and Pueblo of Kewa, who is the Director of American Indian
Student Services and Special Advisor to the President at the University
of New Mexico; and Dorothy ``Dory'' Nason, a member of the Leech Lake
Band of the Minnesota Chippewa Tribe, who is a Professor at the
University of British Columbia. I should also mention that Elouise
Cobell, the principal plaintiff in the litigation that led to creation
of the Cobell Scholarship Program, was honored, posthumously, two weeks
by being awarded the Presidential Medal of Freedom.
I am pleased to report that the Cobell Scholarship Program is now
well underway and is working extremely well. In fact, in the sixteen
months since CBOT first began authorizing scholarship awards, nearly
1800 hundred individual Cobell scholarships have been awarded to almost
1000 Native American students. The scholarship awards are $5,000 per
semester for undergraduates and $10,000 per semester for graduate and
doctoral students. The Cobell scholarship awards to date total more
$5.25 million, and the CBOT has authorized an additional $500,000 for
scholarships for the Summer Term 2017. Thus, the scholarships
authorized to date total more than $5.75 million. Moreover, the quality
of the applicants is remarkable. The combined average GPA for students
who received scholarships for the current academic year is 3.46.
There is a huge unmet need for these scholarships in the Native
American community. Our scholarship administrator, Indigenous
Education, Inc. (IEI), received nearly 3600 scholarship applications
for the current academic year, but the funds available were only
sufficient to provide scholarships to 600 students. There is some good
news, however. The Scholarship Program will continue to receive
additional funds related to the Land Consolidation Program up to a cap
of $60 million. In addition, the CBOT has invested the funds received
conservatively, principally in index funds managed by Vanguard, but the
returns to date have been excellent and have provided more funds for
scholarships. The availability of additional funding and prudent asset
management are both critical because CBOT is required to operate Cobell
Scholarship Program as a perpetual fund.
The CBOT did encounter several initial hurdles in administering the
Cobell Scholarship Program. The organization originally selected--
before the CBOT was formed--to handle applications and to administer
scholarships resigned before the application process even began. The
next organization selected was overwhelmed by the number of
applications and was not able to handle scholarship administration in a
timely or satisfactory manner. Fortunately, CBOT replaced that
organization earlier this year with IEI, led by Melvin Monette-Barajas,
who is also testifying today, and IEI has done a superb job in
administering the Scholarship Program. Moreover, in conjunction with
replacing the prior administrator, CBOT and IEI jointly proposed that
the administrative fee be cut in half, from 6 percent per annum to 3
percent per annum, and that has been done.
In getting the Cobell Scholarship Program operational and, in
particular, in working through the changes in administrators, the CBOT
has had the full support of the Lead Plaintiffs, through their counsel
Bill Dorris of Kilpatrick Townsend, and the Department of Interior. At
Interior, the single most critical person has been the Solicitor,
Hilary Tompkins, who has been extraordinarily helpful to the Cobell
Scholarship Fund at every turn.
Thank you, Mr. Chairman. That completes my testimony, and I would
be pleased to answer any questions that the Committee may have.
The Chairman. Thank you very much, Mr. Cobell, for sharing
your testimony with the Committee.
Mr. Monette?
STATEMENT OF MELVIN MONETTE-BARAJAS, PRESIDENT/EXECUTIVE
DIRECTOR, INDIGENOUS EDUCATION, INC.
Mr. Monette. Good afternoon, Chairman Barrasso, Vice
Chairman Tester, members of the Committee. My name is Melvin
Monette-Barajas, and I am an enrolled member of the Turtle
Mountain Band of Chippewa Indians in North Dakota and operate
the Indigenous Education, Incorporated in Albuquerque, New
Mexico.
IEI is the approved administrator for the Cobell
Scholarship Program authorized by the settlement. Indigenous
Education, Inc. welcomes this opportunity to assist the
Committee in the oversight of this portion of the Cobell
settlement. I will quickly summarize my written testimony and
understand that it will be entered into the congressional
record.
As stated, Indigenous Education is a nonprofit scholarship
administrator created for the expressed purposes of
administering the Cobell Scholarship Program following the
resignations of two previous organizations. The opportunity to
create an organization to give the Cobell Scholarship Program a
single focus necessary to design the Scholarship Program and
services that focus on students, Tribes, institutions, and the
communities was born through the aforementioned resignations.
The Cobell Board of Trustees has authorized the
organization and the predecessor to award more than $4.25
million to nearly 1,000 members of 138 U.S. federally
recognized Tribes attending 316 nonprofit public and private
institutions of higher education as they seek full-time
degrees, vocational education, undergraduate education,
graduate and professional education. In addition, the CBOT has
authorized an additional $500,000 for the summer of 2017, in
which the organization will begin accepting applications in the
early part of 2017.
As Mr. Cobell stated, we had over 3,000 applicants, almost
3,500 applicants. Of those applicants, we were able to fund 640
students, with a combined average GPA of 3.46. So obviously we
are looking for and funding highly qualified students, of which
all 3,000 were highly qualified, making our job extremely
difficult, but we were able to provide those dollars to those
students; and we have a number of testimonies from our students
on our Web site.
The organization also maintains a waiting list of students
who we were not able to fund, so, as students and their
institutions return funds to us, we make sure that the
allocated dollars are returned to the community and to those
students, and we will continue doing that through the summer of
2017. We want to make sure that all the allocated dollars are
used, and not sitting in a bank somewhere.
The Scholars group that IEI administered in this fall term,
640 students attending 249 institutions, are enrolled in 116
U.S. federally-recognized Tribes and studying 35 different
major areas.
The combined scholarship organizations have funded 972
students, 846 of which were undergraduate and 126 of which are
graduate students, receiving $3.7 million in total. Another
$1.5 million staff is currently, as we sit here today,
administering for the spring term starting in January, as well
as another $500,000, as I stated, for summer.
These students claim residence in 41 States, attend 316
institutions in 44 States, and are enrolled in 133 Tribes whose
headquarters are in 20 States. Collectively, 208 of these
students attend 24 of the United States' Tribal colleges and
universities which are located in 11 States. Six of these
students were graduate students studying at Tribal colleges and
universities, leaving 202 graduate students at Tribal colleges
and universities.
I have included in my testimony a short list of
scholarships provided by State. The top 10 States are listed
there in my written testimony, with Montana, as Mr. Tester
recognized. One hundred eighteen students are residents of the
State of Montana, to which $462,613 was provided to those
students. As you see, it goes down by the number of students
provided with New Mexico, South Dakota, North Dakota, Arizona,
Oklahoma, California, Washington, Minnesota, and Wisconsin
mentioned. As you can also notice, we are doing a pretty good
job of outreach and coverage to students in what is known as
Indian Country, and we are very proud of that work.
We are proud of what we have accomplished to date and look
forward to continuing the essential work of the Cobell
Scholarship Program, even after the Land Buy-Back Program has
concluded, to provide improved educational opportunities for
American Indian and Alaska Native students, and to enable those
students to improve their own communities.
Thank you, Mr. Chairman. That completes my testimony, and I
would be happy to answer any questions.
[The prepared statement of Mr. Monette follows:]
Prepared Statement of Melvin Monette-Barajas, President/Executive
Director, Indigenous Education, Inc.
Chairman Barasso, Vice Chairman Tester, and distinguished Members
of the Committee, my name is Melvin Monette-Barajas, I am an enrolled
member of the Turtle Mountain Band of Chippewa Indians and I am pleased
to appear today representing Indigenous Education, Incorporated (the
Organization), the approved administrator for the Cobell Scholarship
Program authorized by Congress in Elouise Pepion Cobell, et al. v.
Jewell (the Cobell Settlement). Indigenous Education, Inc. welcomes the
opportunity to assist this committee in its oversight of the Cobell
Settlement.
Indigenous Education is a nonprofit scholarship administrator
created for the express purposes of administering the Cobell
Scholarship Program, following the resignation of two previous
organizations. The opportunity to create an organization to give the
Cobell Scholarship Program the single-focus necessary to design a
scholarship program that focused on students, tribes, institutions and
community was born through the aforementioned resignations. Combined,
the Organization's President and Executive Director, and the Director
of Scholarship Programs have over 50 years of scholarship and student
services experience focused on American Indian and Alaska Native
students in higher education. The Organization employs five (5) full-
time, one (1) part-time and two (2) seasonal-temporary employees in
Albuquerque, New Mexico where scholarship processes are conducted via
Internet, postal service and telephone as necessary. To date, The
Cobell Board of Ttustees (CBOT) has authorized and the Organization and
a predecessor have awarded more than $5.25 Million to nearly 1,000
members of 138 US federally-recognized tribes attending 316 nonprofit
public and private institutions of higher education as full-time and
degree-seeking students pursuing vocational, undergraduate and
graduate/professional degrees. In addition, the CBOT has authorized an
additional $500,000 for Summer 2017 term and the Organization will
begin accepting applications for the scholarships within the next few
months.
I am the Executive Director of Indigenous Education, Inc., and I am
both honored and privileged to manage the Cobell Scholarship Program to
carry out the wishes of the plaintiffs and the late Elouise Pepion
Cobell to provide resources for access to higher education for Native
people. I bring to the Organization work in institutions of higher
education at the Tribal College level, regional and Research 1
institutions, state government (MN) and nonprofit management, as well
as board membership as a scholarship advisor to several organizations.
As a personal commitment, my advocacy comes from my own experiences, or
lack of experiences, with funding for higher education. I am proud of
the work that Indigenous Education, Inc. has accomplished in our first
year in existence.
We understand and appreciate the financial needs associated with
higher education for American Indian and Alaska Native students who
have waited patiently for this scholarship program to be made available
to them. We also acknowledge that the incentive to sell shares in Trust
land to grow the scholarship corpus carries with it an unintended
expectation that the ``selling'' individual, family or tribe will
receive priority for scholarship assistance. To assist in the
administration of scholarships, the Organization requests information
from applicants that will assist staff in identifying these
individuals; however, in understanding the financial aid process and
requiring a minimum eligibility for selection, along with deadlines for
quality management, not all ``sellers'' have received or will receive a
scholarship without an increase in available scholarship funds. We have
heard from tribes, families, and students and we are addressing their
concerns while remaining aligned with industry standards and practices.
The Cobell Scholarship Program and Indigenous Education, Inc. as the
Administrator
Elouise Cobell and a group of advisors advocated for the inclusion
of a scholarship program to assist Native students to access and
complete higher education at every level. While it may not have been
apparent at the time, we now recognize that the Cobell Scholarship
Program may serve as the principal perpetual legacy of the Settlement.
This carries with it an awesome responsibility to continuously listen
to Native students and communities and remain flexible in our
administration of the program.
Having assumed the administration two-thirds of the way through an
academic year, the Organization was charged with closing the year for
first-year funded students, providing summer term funds to returning
and new students, opening a new application and process for year two
(2) of the program, designing all materials, and distributing all
associated outreach and documents. It was the epitome of the proverbial
``hit the ground running'' for the organization. At this time, we are
completing a review and revision of all processes associated with the
scholarship program and in the coming days, will be launching the
application process for year three (3) of the Cobell Scholarship
Program--the Summer 2017 term and the 2017-2018 Academic Year.
In performing its functions, Indigenous Education, Inc. operates at
the direction of its Board of Directors--Melvin E Monette-Barajas
(Turtle Mountain Band of Chippewa Indians), Kelly Fayard (Poarch Creek
Band of Indians), Clint Carroll (Cherokee Nation) and under the
direction and oversight of the Cobell Board of Trustees. The
Organization contracts with Academic Works, the leader in complete
scholarship management, in utilizing its platform for applicants and
staff. We also contract our website development and maintenance,
technology support as needed, and all accounting services.
Indigenous Education, Inc. and the Cobell Scholarship Program
Description
The Cobell Board of Trustees sets the minimum eligibility criteria.
The eligibility criteria are noted below.
To be considered eligible for the Cobell Scholarship Program,
Applicants must be:
Attending or planning to attend a non-profit public or
private institution of higher education that is nationally,
regionally and industry accredited; and,
Able to submit a completed application of self-reported
information by the annual stated deadline; and,
Able to demonstrate academic excellence through submission
of a current unofficial transcript and through submission of an
Academic Reference; and,
Able to demonstrate engagement in community as demonstrated
through submission of a Community Reference; and,
Seeking to obtain one of the following:
--Vocational diploma, certification, certificate or AAS degree;
or,
--Undergraduate AA, AS, BA, BS or Post-baccalaureate degree;
or,
--Master's, Doctoral or Professional degree.
--Post-doctoral work is considered on an individual basis.
Finalists are selected from a pool of all completed applications by
external reviewers and upon selection must be able to demonstrate that
they are indeed:
A degree-seeking students attending a non-profit public or
private institution; and,
Enrolled full-time in academic study through submission of a
course registration; and,
Able to demonstrate financial need by subtracting all known/
existing resources from the full cost of attendance with an end
result in a positive ``unmet need'' per the institution's
office of financial aid submission of a Financial Need
Analysis; and,
Able to demonstrate US federally-recognized tribal
enrollment through the tribe's Office of Tribal Enrollment
submission of a Tribal Enrollment Verification.
Awarded scholars are those students who meet all stated deadlines
for the post-Finalist status. This group of ``Scholars'' and
``Fellows'' will receive multiple distributions throughout the regular
academic year depending on the institution's academic calendar. Several
of these students are considered ``Honorary'' because the meet all
eligibility and deadlines but have no demonstrated need. Honorary
Scholars remain on distribution lists, receive all program updates and
can access any student service provided by the organization and funds
can be made available to them if their financial situation changes.
Indigenous Education, Inc. and the AY 16/17 Award Data
For the Inaugural Summer Scholarship Program 2016 term, 138 offers
were made with 37 of those returning scholars from the 2015-2016
academic year. Recognizing the requirement for 80 percent of the
available scholarship funds to be awarded to undergraduate students and
the remaining 20 percent to graduate students, 101 undergraduates were
awarded and 37 graduate students were awarded totaling $366,318. The
Organization funded students with an overall grade point average (GPA)
of 3.16 for the Summer term.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Organization's first regular academic year process is 2016/2017
with Summer 2017 yet to be administered. Applicants were required to
submit an online General Application (demographic information), a
Tribal Enrollment Form and a Financial Need Analysis to have a complete
package on file. The latter two forms will be requested only from
Finalists in the future. All information to complete an application
package will be self-reported in the future with only Finalists
requiring verification.
The Organization received 5540 visitors to the OASIS system of
which 582 students were funded. These 582 scholars had a positive unmet
need reported by their office of financial aid. Another 58 students are
considered ``Honorary Scholars'' due to no or negative unmet need
reported by the financial aid office, and are invited to participate in
all scholarship recipient programs. This group of 640 Scholars has a
combined average GPA of 3.833 as noted on the following page.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Organization maintains waiting lists of students who were fully
eligible but where all available funds had been exhausted these
students can receive awards from returned funds, if any become
available.
The Scholars group of 640 students attend 249 institutions, are
enrolled in 116 US federally-recognized tribes and study in 35
different major areas. The selected scholars are a diverse group.
Combined Scholarship Data
To date, the Cobell Scholarship Program has provided funded 972
students--846 undergraduate and 126 graduate students. They have
received $3,719,667.58 in scholarship awards and another $1,532,748.42
is allocated for Winter quarter and Spring terms and $500,000 has been
authorized for Summer 2017 totaling $5.75 million in scholarship
allocations. These students claim residence in 41 states, attend 316
institutions in 44 states and England (IE will fund students attending
foreign institutions so long as they meet all other criteria), and are
enrolled in 133 tribes in 20 states. Collectively, 208 students
attend(ed) 24 Tribal Colleges and Universities in 11 states; 6 are/were
Graduate students, leaving 202 Undergraduate students.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The number of scholars receiving funding through Fall 2016 by state
of residency for the top ten states includes:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
State of Residency Graduate Student Count Graduate Student Awards
Undergrad Student Count Undergrad Student Awards Total Student Count
Total Student Awards
Conclusion
We are proud of what we have accomplished to date and look forward
to continuing the essential work of the Cobell Scholarship Program even
after the Land Buyback Program has concluded to provide improved
educational opportunities for American Indian and Alaska Native
students and to enable those students to then improve their own
communities.
Thank you, Mr. Chairman. That completes my testimony, and I would
be happy to answer questions from the Committee.
The Chairman. Thank you very much, Mr. Monette. We
appreciate your taking time with the Committee today.
Senator Daines?
Senator Daines. Thank you, Mr. Chairman.
Chairman Azure, the Land Buy-Back Program has already been
implemented on the Fort Peck Reservation as a result of the
consolidation, I believe, of about 40 percent of the
Reservation's purchasable fractional interests. How has your
community benefitted economically from the Program?
Mr. Azure. Basically, the Tribes have leased out the
majority of the land that we did get from the buy-back, and it
generated almost $1 million worth of revenue to the Tribes.
Senator Daines. How much revenue was that?
Mr. Azure. Almost $1 million of revenue to the Tribes,
which we utilized for social services programs within the
Tribes.
Senator Daines. Vice Chairman Tatsey, could you share how
you expect the Blackfeet will also benefit economically from
having a program implemented and having the fractional
interests consolidated?
Mr. Tatsey. Well, the potential for purchase for our
Reservation is over 600,000 acres. Of that, we don't know what
the real acquisition is going to be; we are anticipating 40 to
50 percent. But based on those numbers, we anticipate it is
going to be over $1 million of revenue generated for our Tribe
to support some of our social, educational, and economic needs.
A benefit to us as the Tribe looks at some of the long-term
planning and land use planning for our Tribe, the Tribal
governance will have opportunity to do some good long-term land
use planning once we have ownership and have some say in what
can go on with those properties.
Senator Daines. Vice Chairman Tatsey, I stepped out because
I went to a press conference that we did as part of the Senate
Opportunity Coalition to address the issue of poverty. In fact,
I cited unemployment rates on the Blackfeet Reservation as an
example of the challenges we face in Montana which lead to
poverty. The numbers were staggering. Unemployment rates in
excess of 50 percent on the Blackfeet Reservation.
Mr. Tatsey. Yes. That is the conservative number. When we
are looking at this time of the year, when seasonal employment
is not available, we are talking 70 percent.
Senator Daines. Seventy percent.
Mr. Tatsey. Yes. And that could vary, but when we get
towards the wintertime of the year and seasonal employment
slows down, it can get that high, but average around 50
percent.
Senator Daines. I think that needs to be continued to be
talked about.
Mr. Tatsey. Yes, it does.
Senator Daines. In fact, Senator Scott, who is leading the
Coalition, he reiterated these numbers. Sometimes we think
poverty is related to one part of the Country or perhaps in the
inner cities, and it is right in the heart of a State like
Montana.
Chairman Azure, I would like to get some perspective from
you around what aspects of the Program you believe are in need
of improvement, what we could do here to improve or to change,
make them better. Here you have a chance to share your on-the-
ground experience with this Committee, and we would appreciate
your thoughts.
Mr. Azure. One of my main concerns is if we are going to do
land buy-back for the Reservations, I think we should be
allowed to buy back fee land, which is wide open out there; and
there is a lot of it on my Reservation. My Reservation is
pretty much checkerboard, it is 50-50 with trust land and fee
land.
Another thing I would like to see is I would like to see
the Land Buy-Back extended on our Reservation because we have
numerous tracts that are still open that are fractionated and
we have numerous people coming in, after the fact, trying to
come in and sell their land to us; and what happened is the
majority of them got their letters and everything, but they
were wrong when they first sent them in. The information that
they gave us that we had to give to them was wrong, so they
basically kind of held back because they thought they were
getting ripped off. So then after everybody started getting
their money, they put their application and it was denied
because it was a late date, it was after the fact. I think that
would be greatly improved.
And also for the appraisals, nine-month life on the
appraisals, if we can extend the life of the appraisals like
they do in the real world, I think that we would be better off.
I think if we would basically get us treated basically like the
real world in this, it would help us quite a bit.
Senator Daines. I thank you for those specific pieces of
feedback.
Vice Chairman Tatsey, in the remaining time I have, which
is not much, you were nodding your head in agreement. Any other
thoughts you have as well?
Mr. Tatsey. Just want to reiterate what Chairman Azure has
stated; it is something that we discussed and Chairman Azure
covered them very well. So I just want to expound on what he
said. It is basically as we move forward, we are going to be
dealing with the situations. Being last to implement the
Program has been a benefit to us, but still we see the
challenges of outreach and contacts and proper applications and
all those types of things that probably were a big challenge
for, I am sure, some of the initial Tribes that implemented the
Program.
Senator Daines. Thank you for your thoughtful comments.
The Chairman. Thank you, Senator Daines.
Senator Tester?
Senator Tester. Thank you, Mr. Chairman.
First, I want to thank Mike Connor for his service. When I
first came here, Mike was working for Senator Bingaman and
doing a fine job with him, and applied for the job you have
now, and I supported you in that effort and I have not been
sorry one day. You have been incredible in the position. I
serve on Appropriations and I am upset about the fact that we
don't have the ability to do projects or the appropriations
process to direct dollars, but I will tell you that you are one
of the people that gets out and you get to see the projects,
and you make good recommendations even though you are in the
Executive Branch. So we thank you for that.
I have a few questions now, Mike. The first one is there
has been about $900 million thus far sent out to individual
landowners. That is money that is sent out to individual
landowners. Do you have any dollar figure on admin costs to get
that money out? And if you do, could you tell me how much went
to the Department of Interior and how much went to Tribes?
Mr. Connor. I don't have that figure broken out, the
administrative costs between the Tribes and the Department
itself. I can tell you I alluded to the fact in my opening
statement, but we can get you that information for the record.
Senator Tester. That would be good if you could. I would
just like to know.
Mr. Connor. Can I just say, we are 22 percent of the
administrative costs. The legislation allowed for $285 million
to be used for administrative costs. We have expended 22
percent of that, notwithstanding the fact that we are 40
percent into the timeframe for the Program and we have expended
60 percent of the money for acquisition purposes.
Senator Tester. Okay, so you have expended 60 percent of
the money that is allocated for the Program, so you have a
little, well, a fair amount less than $900 million that is
going to go out, and then the Program is done?
Mr. Connor. We anticipate the Program is going to be done
by the timeframe contemplated in the legislation 2022, which is
remarkable that I can sit there and say that with that
confidence right now because two years ago, when I testified
before this Committee, one of the concerns was could we run the
program in an efficient enough way to ensure that we didn't
return any money to the Treasury. We are not going to return
any money to the Treasury, and we will expend it by the
timeframe set in 2022.
That is why we have taken the opportunity in our latest
status report to start looking beyond what is left to do, what
are the ongoing problems associated with fractionation; what is
the magnitude of the problem. We have a lot more information
now than we did in 2009, when the legislation was being
developed, and we know the magnitude of the remaining problem
and the need to continue on with a program such as we've got in
place right now if we are going to make long-term meaningful
progress and create opportunities for Tribes from an economic
development, cultural protection, essential services program.
Senator Tester. So going to what Chairman Azure asked for
an extension of the Program, do you see that as being possible,
then?
Mr. Connor. It will take action by Congress. What we have
tried to do with respect to - there is certainly going to be a
need if we are going to, because otherwise the great progress
that we have made over the course of the last four years, as
demonstrated by the charts that were up earlier.
Senator Tester. But you will not have the capability to
extend it, it will have to be done by Congress?
Mr. Connor. That is correct.
Senator Tester. Okay. What about extending the life of
appraisals, is that something you could do? Because that is a
fairly good point.
Mr. Connor. It is, but one of the overarching goals is to
ensure that we acquire these interests at fair market value. So
that is the reason for the nine month timeframe. We have, and I
think we need to continue to have a dialogue with respect to
Indian Country to ensure that at the end of that nine months,
if there are still outstanding offers, we don't immediately
start back from ground zero; we can look at the market
conditions, we can make judgments about whether there is
ongoing validity to those appraisals, without going back and
starting anew.
Senator Tester. Okay. I am going to bounce it around a
little bit; I am going to go to the other end of the table and
either Turk or Mel, either one of you guys can answer these
questions.
This Scholarship Program is going to be an ongoing
scholarship program, so you are going to be working off of
interests, correct?
Mr. Cobell. I think that is correct, Senator, yes.
Senator Tester. And is that what you are doing now?
Mr. Cobell. Yes. We are doing that and a little more. What
is a little unique about the existing scholarship program and
format is that we receive quarterly deposits via the Land Buy-
Back Program, and those deposits or transfers vary from
$100,000 to billions of dollars. At this point, typically you
would look at the returns you are getting from your fund and
then use those returns within a point or two and distribute
those to scholarships. What is difficult for us now is to try
and estimate what that return is going to be because our
deposits are so sporadic.
Senator Tester. I got you. And is it the administrator's
job to invest the dollars?
Mr. Cobell. No, that is the Cobell Board of Trustees, as
the custodian of the funds, to invest those dollars.
Senator Tester. Okay. And are there any colleges that are
off limits? Now let me give you an example. You have two-year
schools, you have four-year schools, you have some for-profits
that people have some problems with. Is it open to everything?
Mr. Monette. For-profit institutions are not eligible to
receive our funds.
Senator Tester. Okay. And we have heard some examples where
a person will come in with a scholarship and the university
will decrease the kind of help that they were giving that
student. Are you seeing that or is that just a rumor? If you
are, is there anything you can do about it?
Mr. Monette. It does happen. Unfortunately, we follow
Federal student aid guidelines, so a student receives a full
cost of attendance and then our check shows up, they either
need to return a portion or all of it to us because of Federal
student aid guidelines. One of the things we cannot do is
replace the expected family contribution.
Senator Tester. Yes.
Mr. Monette. So that tends to be the largest problem we see
with our students, is that EFC.
Senator Tester. Okay, sounds good. Well, thank you.
I am going to go over to Floyd here for a second. Can you
tell me what outreach programs work the best for you in Fort
Peck and could they be improved upon to let people know?
Mr. Azure. Basically, I haven't seen any outreach programs,
but in talking to Mr. Monette and Mr. Cobell, they said that
there are 29 students from the Reservation that got that money.
The ones I know of got a 638 contract, educational contract
that we provide scholarships for our students, and we have 42
of those students still left on my Reservation without a
scholarship. They are on a waiting list because we expended all
of our 638 dollars already.
Senator Tester. Okay. Now I am talking about the Land Buy-
Back Program as far as outreach.
Mr. Azure. Land Buy-Back, that was on a previous
administration.
Senator Tester. No, that is okay. I just wondered are there
outreach program that you know of that have worked well.
Mr. Azure. Yes.
Senator Tester. And maybe ones that haven't worked so well?
Mr. Azure. I think we pretty much replaced the ones that
didn't work so well, but that was after the fact.
Senator Tester. So you are happy with what you have going
now?
Mr. Azure. We are working very well, but the first go-round
everybody kind of got skeptical of what was going on and they
pulled back from their land sales.
Senator Tester. All right.
Mr. Azure. After we corrected it we got a lot of people who
have come back, but there is a lot of them that didn't.
Senator Tester. Do you see an opportunity for more Tribal
consultation with the Department? And, if you do see that, what
would that look like?
Mr. Azure. I think that what we are going to have to do is
we are going to have to work with the people better, because
they are very skeptical about what the Federal Government does,
and I think that we should have some people come in. I would
have to just go through it by finger and show them.
Senator Tester. There is a little history there.
Terry, you talked about purchase offers should be made
available beyond 45 days. You get to give your opinion. How
long do you think they should be out there for?
Mr. Tatsey. I think one of the guiding principles behind
all this is just a good outreach and education program to begin
with, Senator Tester.
Senator Tester. Okay.
Mr. Tatsey. If you did that like we have done that with the
Pikunii Money Campaign, you educate people, you let them know
about opportunity and let them know about the potential things
that can happen if they retain their property, if they sell
their property, if that had been initiated, that 45-day window
may have worked. But because they are doing it in conjunction
with offers, I would say at least a 60-day window would
probably be fairly adequate, but not meet all the needs.
Senator Tester. And how was that time decided, that 45? Was
that a negotiated agreement or was that an agreement that the
Department came up with? Mike, can you answer that?
Mr. Connor. The 45-day time period for offers was really
set up as part of the initial program parameters to ensure that
we were moving the program effectively and efficiently through
the process.
Senator Tester. And you get pressure out of this end to
make sure things move. Did that come out of consultation with
the Tribes?
Mr. Connor. We had consultations when we initially set up
the Program. I think that was the rub of us trying to move
forward, where Tribes were trying to establish some longer
timeframes. I would say it works better now as we do improved
outreaches, we have done lessons learned, than it did earlier.
Senator Tester. Okay. Well, thank you.
And I just want to close and thank the Chairman for being
so flexible on the time. I want to thank you all for the work
you do and I want to wish you all a very happy holiday season.
Thank you for being here.
The Chairman. Thank you, Senator Tester.
Secretary Connor, in 2009 this Committee held an oversight
hearing on the then recent court agreement regarding the Cobell
Settlement. As with any settlements, there are high and low
dollar amounts that are discussed, but at the end of the day
these are negotiated agreement between all the parties
involved. At the December 2009 hearing, then-Secretary Ken
Salazar was here. He praised the settlement agreement because
it created a program to avoid fractionation. Secretary Salazar
went on to say that if this settlement agreement is not
enacted, he said, then the estimate $4 million land interests
would expand to 11 million interest, I think he said by the
year 2030.
Now here we are in 2016 with a status report. The
Administration is recommending an extension of the Land Buy-
Back Program. Could you talk a little bit about the
Administration's forecast, why it changed on the expanded land
interests over those years?
Mr. Connor. Well, I went back and looked at the hearing
record, and you are correct, there was the expectation that we
could acquire I think it was up to about $2.6 million in
aggregate interests. At the end of the day, we are going to
acquire about $900,000 to $1 million aggregate interests.
I think that is a product of, I think, the cautions that
particularly Secretary Hayes provided at that hearing. I think
he was upfront that we have done a good estimate to look at
acquiring a great majority of those tracts that have more than
20 interests involved, but at the same time I think he made
clear that we were probably in excess of $6 billion to $8
billion if we were realistically going to deal with this
program, and I think the number is probably higher than that.
He did note that the caution in looking at these estimates
was it all depends on fair market value, what the value of
those lands were, and ultimately the interest of willing
sellers to sell that land. So those are the products that I
think are the difference between the original estimate of about
$2.6 million interests versus where we are going to be at at
about $900,000 to $1 million.
The Chairman. As you pointed out, one of the conditions of
the Land Buy-Back Program, you just said, is it is strictly
voluntarily.
Mr. Connor. Yes, sir.
The Chairman. It relies on willing sellers who can choose
to sell some or all or none of their land interests. The data
from the Program suggests that about the average acceptance
rate of the offers made is approximately 44 percent. So should
there be a higher acceptance rate in terms of numbers for the
Buy-Back Program? And why should Congress continue a program
that offers solvency rates of only less than half?
Mr. Connor. Well, I think overall we have improved. One of
the aspects, and I will be completely up front with you. We
have gone through a lot of lessons learned, and the outreach
and the information and the education is critical to the
process, and it has been critical to increasing that
participation rate. Now we are up into the 40 percentile area.
I think the idea is that there are a lot of interests to
which there will not be offers even made. We are thinking about
2 million acres overall where they are eligible, but because of
our resources available to the Program and the desire to get to
all 105 locations that we have identified, we will not make
offers on about 2 million eligible acres.
I think, as you have heard today, landowners who initially,
because of suspicion, because of concerns about the Program,
have initially declined offers and I think are rethinking that.
So I think on those two areas there is reason to believe that,
if the Program is extended, we can make significant more
inroads and replicate the success of the Program in its first
four years.
The Chairman. Thank you.
Mr. Monette, in May of this year, in Indian Country Today
there was an article, you gave an interview regarding the first
round of Cobell scholarships. We talked a little bit about the
scholarships today. You indicated your organization was
awarding $2 million in scholarships for 2016 to 2017 in the
academic year. We have heard about the incredible demand, the
number of students, the high GPAs, all those sorts of things
that you would be happy to see.
You also made a suggestion that in addition to accepting
applications from enrolled members of U.S. federally recognized
Tribes, you have been looking into the need of the descendants
of enrolled members who are not themselves enrolled. Can you
explain why the applicant pool should be open to non-enrolled
Tribal members? And has your organization made any
recommendations to the Cobell Board of Trustees on that
suggestion?
Mr. Cobell. Chairman Barrasso, if I may, I will answer a
little bit of that. The Cobell Board of Trustees assessed the
criteria for the administrating organization. Part of that
criteria is that the applicant must be a member of a federally
recognized Tribe or Alaskan Native corporation. On a yearly
basis, even more than that, the Board of Trustees steps back
and looks at the programs and looks at ways at how we can
enhance the program.
One of the things that we heard initially was that the
scholarships should only be open to class members or
descendants of those class members. One of the things that we
identified after hearing that was using a class member or
descendant of a class member for a tiebreaker situation, if I
may call it that.
So we are constantly looking at ways to enhance the
applicant pool, to enhance the efficiency of the scholarship.
As of now, the applicants must be a member of a federally
recognized Tribe or Alaskan Native.
The Chairman. Could I ask you a follow-up? The settlement
agreement stipulates that your Board is to govern the
scholarship funds, and I think we have a good report of what
you said earlier today. Can you elaborate a little bit on this
type of Board governance and how your Board interacts with the
Tribes, particularly those Tribes that are already included in
the Cobell program and those that have yet to participate?
Mr. Cobell. Yes. The governance that the Cobell Board of
Trustees currently has is one of which the settlement agreement
is unique in the way that funds are received, and I will start
there. The funds are received on a quarterly basis, as I
mentioned before. Those funds, per the settlement agreement,
are sent to the administrative organization which in turn has
to send those funds to our designated investment funds, which
in our case now is Vanguard, at our direction.
It is up to the Cobell Board of Trustees to manage those
funds in terms of investment portfolios. On an academic year
basis, we do sit down and make a decision of how much of the
fund that we are going to disburse for scholarships and that we
in turn send that amount of funds to the administrative
organization.
It is kind of a cumbersome process in that regard, but as
far as consultations to Tribes the administration organization
is really plugged into the applicants that are applying in
terms of questions, in terms of forms, in terms of the overall
process, more so than the Cobell Board of Trustees. The Cobell
Board of Trustees is primarily responsible for the fiduciary
responsibility of those funds and to ensure that the
administrative organization is executing disbursement of those
scholarships based on our criteria and based on our direction.
I hope that answers your question.
The Chairman. Yes. Thank you.
Senator Lankford?
STATEMENT OF HON. JAMES LANKFORD,
U.S. SENATOR FROM OKLAHOMA
Senator Lankford. Mr. Chairman, thanks for your leadership
in this Committee.
Gentlemen, thank you for being here. Let me give you a real
world situation and talk about fractionated lands and some of
the issues. Southwest Oklahoma, I can take you to a town where
we have highly fractionized land. A home is abandoned; you have
windows broken, it becomes a dangerous situation; weeds
overgrown or a building or an outbuilding becomes an area where
there is crime in the neighborhood and such.
Typically, a city would go in and just abandon that
property, would declare it abandoned and would clear the
property. They can't do that in this situation. The Tribes
often also feel like they can't do that, and if BIA hesitates,
that city, that county and that neighborhood has no real
solution to something that is becoming a magnet for crime.
That is prime area for this Land Buy-Back. So the question
that the cities and the counties ask me is how do we get into
the process; how do we help in participation; what do we need
to do to be able to get to the top of the list. So my question
is how do you determine what is top of the list, what is the
low hanging fruit where you have not only voluntary
participation, but eager participation of cities, counties,
Tribes, and communities that say this is a problem. This is
really what the Program was designed for. How do we help with
that?
Mr. Connor. Senator, I am assuming that is directed at me.
Senator Lankford. Yes, sir.
Mr. Connor. I appreciate the question. I think it is a very
good question and I appreciate the real world example.
The criteria for how we have looked at which locations that
we are moving to, which Reservations, was developed in
consultation with Tribes, and there were a number of
parameters: the number of fractionated interests, the
efficiency with which we can run the Program, the interest of
the Tribe, the interest of landowners, and a number of factors
along those lines.
The Oklahoma situation, the Oklahoma Tribes are now on our
list of 105, so we intend to move towards those locations.
Senator Lankford. All of the Tribes or just Oklahoma in
general?
Mr. Connor. I think it is the five Tribes.
Senator Lankford. We have 39.
Mr. Connor. The ones I am talking about, Choctaw,
Chickasaw, Seminole, Cherokee, and I am missing one.
Senator Lankford. Muskogee Creek?
Mr. Connor. Yes, sir. So there is a 1947 Act, there are
special rules. We are trying to methodically work through how
we run this Program on those lands. The recordkeeping is
different on those lands; the fact that we need to go through a
judicial proceeding to change title on those lands. All these
things we are methodically moving forward. We need to stay in
close contact with your office as we work through these issues
to try and work through how we efficiently run this Program,
and we may need some help, quite frankly.
Senator Lankford. Which I am glad to. If we can pause
there, because that is the Stigler Act, and I want to be able
to talk a little bit about the five Tribes and some of the
issues.
This particular situation in Southwest Oklahoma is not in
that area; it is not one of those five civilized Tribes, it is
some of the other 34 Tribes that we have in the State. I guess
my question is how do we help in the process. The Tribe wants
to be engaged and is engaged. How do we help lift people off
the list? Because that becomes a high interest for the whole
community to be able to deal with this, and my concern is that
we are going to debate about getting onto the list and 2022 is
going to come and go.
Mr. Connor. I think on this particular matter if we can
work directly with you and understand where this location is,
who is involved, and try and see what we can do, Senator, I
think that is the best opportunity.
Senator Lankford. That would be terrific.
Then let me switch over to the Stigler Act and the five
civilized Tribes area, because our understanding, and your team
has been great with working with my staff and with the staff of
Senator Inhofe and all of our congressional delegation. What do
we need to fix legislatively and how quickly do we need to get
that language in place so that the five Tribes can be engaged
and helpful before the 2022 deadline?
Mr. Connor. I think those are the issues that are being
looked at by our legal office, consulting with the Tribes. I
can look for a status on where we are at to try and get you
that information as soon as possible. I would assume at this
point we would try and tee up something with respect to
recommendations and analysis for you for the start of the next
Congress.
Senator Lankford. Okay, so those recommendations are still
pending. Are there any of those that you can talk through today
or legislative recommendations to be able to do a fix here, or
those are things you can get me in writing and work with our
staff?
Mr. Connor. I think we are going to have to do that in
writing and work with your staff. I am not prepared today.
Thank you.
Senator Lankford. That is great. No, I understand. We will
be able to follow up on that quickly in the days ahead because,
again, time is of the essence in all this.
Mr. Chairman, thank you. I yield back.
The Chairman. Thank you, Senator Lankford.
Well, if there are no more questions for today, members may
also submit follow-up written questions for the record. The
hearing record will remain open for two weeks.
I want to thank the witnesses for their time and their
testimony today.
Mr. Tatsey, I certainly want to, once again, thank you for
sharing the story of your uncle, George Tatsey, who lost his
life 75 years ago today at Pearl Harbor and made the ultimate
sacrifice for our Nation. I want to thank you on behalf of the
United States Senate for the sacrifices of him and others who
have additionally committed their lives for our freedom.
I would also like to take a moment to thank my staff for
their work this Congress. I asked and expected a high work
output from them based on the number of hearings we had, the
bills that we reported out, the oversight that we conducted.
They certainly met my expectations and more. They are an
outstanding group of people and I am very proud of them and
their efforts that they put forth on behalf of the Committee.
They are Mike, Rhonda, Brandon, Emily, John, Jacqueline,
Natasha, Mike, Hanna, and Brian. So I want thank each and every
one of you for the remarkably good job that you have done.
With that, the hearing is adjourned.
[Whereupon, at 4:05 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Al Franken, U.S. Senator from Minnesota
Thank you, Chairman Barrasso and Vice-Chairman Tester for holding
this oversight hearing, and thank you to our witnesses for coming
today.
As we approach the end of the 114th Congress, I want to take a
moment to recognize Chairman Barrasso and Vice-Chairman Tester for
their leadership of this Committee and their dedication to serving
Indian Country.
The Indian Affairs Committee is not the most high-profile
committee. But the issues that we work on as members of this Committee
are absolutely crucial.
Almost every week, we hear from tribal leaders from across the
country about the challenges their communities are facing. When we
think about all these challenges, it can be frustrating. But knowing
that there are people like Chairman Barrasso and Vice-Chairman Tester
who work hard on behalf of Indian Country gives me hope.
So, thank you Chairman Barrasso and Vice-Chairman Tester for your
commitment, and for your guidance of this Committee.
And to our new Chairman and Ranking Member, I look forward to
continuing to work with you in the next Congress.
______
Prepared Statement of Hon. Gary Burke, Chairman, Board of Trustees,
Confederated Tribes of the Umatilla Indian Reservation
Good afternoon Chairman Barrasso, Vice Chairman Tester, and Members
of the Committee, my name is Gary Burke and I am Chairman of the Board
of Trustees, the governing body of the Confederated Tribes of the
Umatilla Indian Reservation (CTUIR). I appreciate the opportunity to
provide testimony on the Department of Interior's implementation of the
Land Buy-Back Program (LBBP). We view the LBBP as an historic
opportunity to restore CTUIR ownership of Reservation lands as intended
in our Treaty of 1855.
Pursuant to Article I of our Treaty, the CTUIR ceded 6.4 million
acres of its aboriginal lands in exchange for the Umatilla Indian
Reservation, which was set aside for the ``exclusive use'' for the
Cayuse, Umatilla and Walla Walla tribes. However, due to failed federal
policies of the past, we lost over two-thirds of our Reservation land
base. The CTUIR has long prioritized the restoration of the Reservation
land base set aside in our Treaty, and the LBBP has played a critical
role in accomplishing that important goal.
The loss of our Reservation land base occurred shortly after our
Treaty was ratified in 1859. In 1882, Congress severed 640 acres from
the western end of the Reservation to facilitate the growth of the City
of Pendleton. In 1885, two years before the General Allotment Act
became law, Congress passed the Umatilla Allotment Act which allotted
and diminished our Reservation. The Act diminished the Reservation by
opening up some 90,000 acres of Reservation land for sale to settlers.
The allotment of our Reservation resulted in the loss of approximately
one-half of Tribal lands within the diminished Reservation to non-
Indian ownership due to probate, land sales and tax foreclosure. By the
100th anniversary of our Treaty in 1955, we had lost one-third of our
Reservation due to diminishment and another third to non-Indian
acquisition of allotments issued to Tribal members.
The allotment of our Reservation has also resulted in fractionated
ownership of the individual allotments issued to Tribal members.
According to the Updated Implementation Plan for the LBBP, the Umatilla
Indian Reservation is the 28th most fractionated Reservation, with
1,015 fractionated allotments totaling 66,945 acres which contain
18,828 purchasable fractional interests. Fractionated ownership of
these lands makes use and management of these lands difficult, and in
many cases impossible. We have also learned that a large percentage of
the owners of these fractionated interests are Indians that are not
enrolled in our Tribe. For example, when we renegotiated a pipeline
right-of-way (ROW) that traversed some 13 miles through our Reservation
in the late 1990s, approximately two-thirds of the owners of the
allotments burdened by the ROW were Indians enrolled in tribes other
than the CTUIR. While the Umatilla Indian Reservation may have been
established as the exclusive homeland for the CTUIR, we had become
minority landowners on our own Reservation.
For the past three decades, the CTUIR has dedicated considerable
resources to the restoration of our Reservation land base. We have
enacted laws, dedicated Tribal revenues and developed Tribal programs
to reacquire Reservation lands within our Treaty Reservation boundary
and to prevent the loss of Tribal trust lands upon the death of Indian
landowners.
The LBBP provides a means to restore Tribal ownership of
fractionated interests in trust allotments. Our Tribe has prioritized
400 fractionated allotments, out of a total of approximately 1,300
allotments on the Reservation, for acquisition under the LBBP. These
prioritized allotments were heavily fractionated, had a large
percentage of ownership by Indians enrolled in tribes outside of our
own, or otherwise had important cultural, natural resource or economic
and community development significance.
The CTUIR was eager to have the LBBP implemented on our
Reservation. We were one of the first Tribes to execute and implement a
Cooperative Agreement with the LBBP that defined and funded the work we
performed to implement the Program. We believe the implementation of
the LBBP under our Cooperative Agreement was a success.
Under the LBBP implemented on our Reservation in 2014-2015, we
fully expended our $12.3 million purchase ceiling to acquire 10,172
equivalent acres on 547 allotted tracts. These acquisitions increased
the Tribal ownership of allotments that are critical to economic
development, contain important natural resources, cultural sites or
were unusable because they were so heavily fractionated.
While the LBBP has been fully implemented on our Reservation, we
offer the following comments to the Committee based on our experience
in the Program:
1. The LBBP has not eliminated the problem of fractionated
ownership of allotted trust land. As Chairman Barrasso stated
in his opening comments at the December 7th hearing, the $1.9
billion LBBP ``was not enough'' to remedy the fractionated
allotment problem. Chairman Barrasso appropriately cited the
Interior Department's recent LBBP Status Report that found that
the level of fractionation will return to pre-LBBP levels if it
is not continued. We urge the Committee to support Tribal
efforts to fund a continuing program to purchase fractionated
interests in allotted trust lands.
The CTUIR proves that such continued funding is needed.
During the course of the LBBP implementation on our
Reservation, we were only able to purchase interests on 40
percent of the allotments on our Reservation. We have much more
work to do, and many more willing sellers of allotted trust
lands. We call upon the Committee to support a permanent
reauthorization of the program for the acquisition of
fractional interests in the Indian Land Consolidation Act of 25
U.S.C. 2212-2215.
2. The CTUIR is aware that many tribes have been unable to
fully expend their purchase ceiling under the LBBP. We have
notified Department of Interior officials that the CTUIR has
the ability to utilize unexpended LBBP funds to purchase
additional fractionated interests in trust allotments on our
Reservation. Our Land Program has been contacted by numerous
land owners who would be willing sellers of their allotment
interests. The Committee should insist that the LBBP be
transparent in the expenditure of LBBP funds on each
reservation and on the process that will be used to allocate
unexpended LBBP funds before the 2022 deadline.
3. We believe that Land Buy-Back funds should be made
available to reimburse tribes for the purchase of fractionated
trust allotments under tribal probate or inheritance codes.
Under our CTUIR Inheritance Code, enacted under the Indian Land
Consolidation Act, we have the right to prevent the transfer of
trust lands by will or intestacy to a non-member of the CTUIR
upon the payment of fair market value. We have requested that
the LBBP reimburse our acquisitions under this Code dating back
to the federal court approval of the Cobell settlement in
November 2012. The LBBP never agreed to this request. The CTUIR
believes our request should have been granted because these
probate acquisitions achieve the objectives of the LBBP by
acquiring fractionated interest in trust lands and transferring
ownership to the Tribe at fair market value as determined by
the Department of Interior. Unexpended LBBP funds referenced in
comment 2, above, could be allocated to this reimbursement.
4. The LBBP needs to provide more information to affected
tribes on the roll-out of the Program in Indian Country. It
would have been helpful for us to learn about what had worked,
what had underperformed and what had failed in the
implementation of the LBBP on other reservations. The CTUIR and
other participating tribes have a shared interest with the LBBP
in the success of the Program. All tribes want to learn from,
and benefit by, the successes (and the failures) of other
tribes participating in the LBBP.
5. Effective LBBP implementation on a reservation requires
good communication with owners of allotments on that
reservation. As the CTUIR experience proves, many owners of
allotments on one reservation live on neighboring reservations.
The LBBP needs to provide better information on the schedule
for LBBP implementation on a reservation to surrounding tribes.
With this information, our Land Program staff can provide
better responses to land owner questions about the LBBP
occurring on neighboring reservations.
6. The Department of Interior needs to commit the necessary
personnel to ensure the timely implementation of the LBBP. We
experienced delays in the review and approval of our appraisals
of the fractionated trust allotments that we had prioritized
for purchase under the LBBP. These reviews were conducted by
the Office of Appraisal Services (OAS). The timing of outreach
efforts, the appraisal of the allotments and the schedule for
mailing out offers are dependent upon a timely review and
approval of the appraisals by OAS.
The success of the LBBP will do much to improve Tribal sovereignty
and economic self-sufficiency. With increased Tribal ownership of trust
allotments, and the associated decrease in fractionated ownership, we
will be better able to use our Reservation land base to meet the needs
of our Tribal members. The United States will also benefit under the
LBBP due to the reduction in costs associated with the probate of these
fractionated interests and the management of IIM accounts that hold the
income generated on these trust allotments. Most importantly, the LBBP
is a small but important step by the United States to honor our Treaty
and to reverse the failed allotment policy of the 19th century.
This completes my testimony. Once again, on behalf of the CTUIR, I
appreciate the opportunity to provide our perspectives on the LBBP. We
look forward to working with the Committee and the LBBP to ensure its
success in Indian Country, and its continuation beyond the year 2022.
______
Prepared Statement of Hon. Troy Scott Weston, President, Oglala Sioux
Tribe
Introduction
The Oglala Sioux Tribe is pleased to submit testimony for this
important oversight hearing entitled, ``Examining the Department of the
Interior's Land Buy-Back Program for Tribal Nations Four Years Later.''
The Oglala Sioux Tribe is a part of the Great Sioux Nation. Our
rights, the United States' obligations to us and our unique political
relationship with the United States are set forth in a series of
treaties through 1868. Our Pine Ridge Reservation is massive; it
encompasses over 2.7 million acres of land in the southwest corner of
South Dakota. These lands are part of the lands reserved in our
treaties as our permanent homes and for our absolute and undisturbed
use and occupation. Unfortunately, violations of our treaties, the
imposition of the Allotment policy and settlers' encroachments have
damaged the integrity and benefits of our lands which we hold sacred.
Implementation of the repudiated and unwise Allotment policy caused our
Reservation lands to become unbelievably fractionated through the
generations, and we have suffered from that policy's long-lasting
negative effects. Some of our members own just a ``spoonful of land.''
This land, however, is important to them as land is highly valued among
our members and is traced back to our treaties and before.
The Oglala Sioux Tribe was the first tribe to enter into a
cooperative agreement with the United States Department of the Interior
(Interior or DOI) for the implementation of the Cobell Land Buy-Back
Program (LBBP or Program). To date, the Program has provided beneficial
results for our Pine Ridge Reservation. However, much more work is
required if we are to truly address the menacing problem of
fractionated interests on our lands.
Pine Ridge Reservation and Implementation of the LBBP
Interior's Dec. 18, 2012 Initial Implementation Plan for the LBBP
listed our Pine Ridge Reservation as the most highly fractionated
reservation in all of Indian Country. It was listed as number one on
Interior's ``Top 40 list.'' The magnitude of our fractionated interest
problem is enormous. It hinders our economic development, planning,
cultural and natural resources preservation and governance.
Fractionation also hinders our members' efforts to make their lands
useful.
Faced with such a massive problem, our Tribe has been engaged with
purchasing fractional interests and land consolidation efforts for
decades, long before the LBBP was established. Our Tribal Council has a
Land Committee and we have long had a strong Land Office. Thus, when
Interior's draft LBBP Plan was issued in 2012, we took great interest
as we had a lot of experience--through the Indian Land Consolidation
Act (ILCA) and other programs, including the Farm Service Agency (FSA)
loans--in efforts to consolidate lands and stem further fractionation
on our Reservation. At that time, we encouraged DOI to use the Tribe's
experience and knowledge about its lands and to rely on tribes for how
best to successfully implement the Buy-Back Program on their
reservations. Further, we asserted that tribes should be allowed to
design and implement their own plans for reducing land fractionation.
We also asserted that the LBBP should be implemented pursuant to the
Indian Self-Determination and Education Assistance Act. Finally, we
asserted that the Trust Land Consolidation Fund be placed in an
interest-bearing account so more monies could be generated for land
consolidation activities.
According to Interior's Initial Implementation Plan for the LBBP in
2012, Pine Ridge had 5,982 fractionated tracts with 194,401 purchasable
fractional interests that represented 1,194,669 acres of land. Again,
our Reservation is the most highly fractionated as recognized by
Interior. Interior's Initial Implementation Plan set forth a ``purchase
ceiling'' of $126 million for purchasing fractionated interests on our
Reservation. Interior's Updated Plan dated November 8, 2013 set the
purchase ceiling for Pine Ridge at $125.4 million. We have consistently
stated that the entire purchase ceiling amount must be spent on our
Reservation.
We entered into a cooperative agreement with Interior in September
2013. While we asserted our desire and capability to carry-out all four
phases of Interior's Plan (Outreach; Land Research; Valuation and
Acquisition), we, ultimately, participated only in the Outreach phase.
This phase, however, was critical to whether the Program would succeed.
Under our first LBBP cooperative agreement, we hired 12 employees,
accessed necessary program equipment, and carried-out the planned
Outreach activities. These activities included identifying landowner
contact information, developing and enhancing communication tools to
notify owners about the Program, conducting face-to-face meetings, and
creating educational tools about the Program. Achievements under our
first cooperative agreement included more than 18,000 purchase offers
being made; more than $81.5 million being paid to selling landowners;
and the consolidation of the equivalent of 233,000 acres of land for
the Tribe.
We entered a second cooperative agreement with Interior to extend
the implementation of the LBBP on our Reservation. This second
agreement covered 6 employees to conduct the Outreach services to
potential sellers and lasted for seven months. Interior's 2016 Status
Report showed that for Pine Ridge, in total, 20,622 individuals
received purchase offers and 9,319 individuals accepted the offers for
a total amount of $110,395,928. The amount of fractionated interests
that was purchased is equivalent to 292,774 acres of Tribal lands. The
effort reduced the fractional interests to 120,966.
A highlighted benefit conveyed by both the Tribe and Interior is
that we plan to construct several new buildings in our Wakpamni Lake
Community on land that has been consolidated through the LBBP. These
buildings will include office space, a conference room, a civic center,
a day care, and food distribution storage. Furthermore, we are planning
a housing program that is facilitated by our land acquisition under the
Program.
We are confident that our Outreach activities were a necessary
component for successful implementation of the LBBP on the Pine Ridge
Reservation. We believe that having tribal members explain the Program
and its process to fellow members was crucial to the Program realizing
beneficial results on our Reservation, especially in light of our
unique language and cultural considerations. We stand ready to team up
with Interior and participate in the Program again.
Implementation Considerations and Needs Going Forward
We support the Deputy Secretary of the Interior's testimony to the
Committee stating that long-term strategies are needed for land
consolidation. Land consolidation promotes tribal sovereignty and
governance. It also facilitates tribal land use and economic
development, which is critically needed on our Reservation. We plan to
continue our on-going efforts to consolidate our land base. One central
objective is to participate in the LBBP again. We have much more work
to do to address the issue of, and problems arising from, fractionation
on our Reservation.
From the beginning, we have stated that the purchase ceiling for
Pine Ridge must be spent on Pine Ridge. Interior identified $125.4
million as a purchase ceiling for the Pine Ridge Indian Reservation.
This evidences Interior's recognition of our Reservation's severe
fractional interest problem. Interior must do everything in its power
to expend our purchase ceiling on our Reservation. Funding identified
for Pine Ridge should not be spent elsewhere. This will take
willingness from Interior to work closely with us and our members every
step of the way, and, fundamentally, a commitment to return to our
Reservation to continue our cooperative efforts together. At the end of
our second cooperative agreement, approximately $ 15.031 million
remains in the purchase ceiling. Interior should return to our
Reservation to spend these monies and enter another cooperative
agreement with us so we assist in the process.
There also must be adequate time for the Program to successfully
work on the Pine Ridge Reservation. Per the Claims Resolution Act, the
LBBP is authorized for a period of ten years. Our view is that efforts
should be ongoing on Pine Ridge throughout the Program's ten-year
authorization. Our Land Office consistently receives inquiries from
potential sellers about the possibility of the Tribe purchasing their
interests. Other tribal members may not currently be ready to sell, but
they might be in the near future. The LBBP should operate in full
during the length of its lifetime; this should include ongoing
implementation on Pine Ridge, the most highly fractionated reservation,
especially in light of the fact that there is still approximately $15
million left in our purchase ceiling.
Trust Land Consolidation Fund monies should not be returned to the
United States Treasury at the end of ten years. The LBBP was agreed to
by the Cobell case parties as part of the settlement of the Cobell
case. The Program is a monumental effort to address the severe
fractionation of Indian lands and the many problems that it creates.
The Program should not be limited by a finite time period and ``use-it-
or-lose-it'' framework. Tribes and Interior must have the time needed
to do everything they can to address the serious fractionation problem.
This includes time to spend all the Trust Land Consolidation Fund on
this effort. It also includes spending all of the monies earmarked for
the Program's administrative costs, which totals $265 million. These
monies should be spent on administrative costs and purchasing
interests, and no part of them should be returned to the United States.
Any Fund monies that remain should not be returned to the United
States Treasury at the end of the ten year period. First of all, the
LBBP should be extended. While benefits have resulted from the LBBP,
there is much more work at hand to truly address the fractionated
interest issue on our Reservation and across Indian Country. Thus, any
remaining Fund monies should be used in an extension of the Program.
The Fund was agreed to as part of the Cobell Settlement. Thus, it would
be tragic to have any of such monies returned to the Federal
Government, the party responsible for mismanaging the trust accounts
and imposing the devastating allotment policy in the first place.
Second, the Fund monies should be used to purchase fee lands or large
tracts within reservations as identified by the tribes as part of their
overall land consolidation efforts.
Finally, we agree with the concept of the Scholarship Fund.
However, our tribal members have not benefited from the Fund to the
extent they should in light of the Scholarship monies that were
generated from our participation in the Program. Our view is there
should be an effort to distribute such monies to regions in proportion
to the region's generation of such monies.
Conclusion
We appreciate the opportunity to submit written testimony for the
record for this important oversight hearing. We are grateful for the
Committee's focus and interest in the Buy-Back Program, and look
forward to working with it and the Department of the Interior as the
Program continues and long-term land consolidation strategies are
developed.
______
Prepared Statement of Hon. Liana Onnen, Chairwoman, Prairie Band
Potawatomi Nation
The Prairie Band Potawatomi Nation (the ``Nation'') is pleased to
provide written testimony for the United States Senate Committee on
Indian Affairs' December 7, 2016 hearing entitled ``Examining the
Department of the Interior's Land Buy-Back Program for Tribal Nations,
Four Years Later.'' Our participation in the Department of the
Interior's (DOI) Land Buy-Back Program (LBBP) provided substantial
support to our effort to combat the issue of fractionated land
interests on our Reservation. However, much more is needed if we are
truly going to conquer this vexing problem. We set forth information
below about how the LBBP worked for us followed by certain
recommendations for the Committee to consider.
To fully understand the importance of the LBBP one must look at how
fractionated interests in land developed. The General Allotment Act and
subsequent allotment acts attempted to assimilate Native people by
awarding lands held collectively by Tribes to individual Indians, and
sold ``surplus'' lands to non-Indians. Congress soon realized the
failure of the Allotment Act and ended it by passage of the Indian
Reorganization Act. Unfortunately, the damage had already been done.
Tribes lost enormous amounts of land they previously owned, and
individual Indian allottees and their heirs soon lost meaningful
management authority over their allotted lands due to the onset and
continuous growth of fractionated ownership.
Land tracts with multiple co-owners make it extremely difficult to
obtain the required approvals for leases and other uses. As a result,
numerous tracts are unoccupied and not used for any purpose. Instead,
they sit dormant; their potential not being realized. In addition, the
resulting checker-board nature of land ownership has created challenges
for the Nation that impact our sovereignty, self-determination and
efforts toward economic development and land use. Fractionated
ownership also makes it difficult to protect and access sacred and
cultural sites. While Congress has attempted to correct the problems
arising from allotment, none of its efforts have provided the critical
funding sufficient to restore Tribal land bases.
In 2010, Congress enacted the historic legislation to ratify and
confirm the 2009 Cobell Settlement. The Claims Resolution Act provides
a foundation for addressing the fractionation of Indian lands that
occurred under the policies of allotment and assimilation. In the Act,
Congress established the Trust Land Consolidation Fund to purchase, on
behalf of tribes, fractionated interests in trust from willing
individual sellers on their reservations at fair market value. The
purchased interests are transferred to the tribes. The Trust
Consolidation Fund totaled $1.9 billion to be administered by the DOI
through the LBBP.
As described in the DOI's November 2014 status report, within our
Reservation there were approximately 323 fractionated tracts of land,
comprising 18,004 acres with 9,618 purchasable fractional interests and
2,204 associated unique landowners. To address the impacts of the
fractionated land base, in December 2014, our Nation submitted an
application to participate in the LBBP through a cooperative agreement
with the DOI. Per the cooperative agreement, we assisted the DOT in
purchasing fractionated interests on our Reservation by engaging in (a)
preand post-offer outreach; (b)() identifying interested sellers; (d)
notifying owners of the opportunity to sell; and (e) identifying
addresses and updating owner contact information.
The DOT capped tribal administrative costs at $148,796.00 for our
activities; set our land purchase ceiling at $4,352,826.00; and set the
offer cut-off date for individual sellers as June 8, 2015. We had the
first official event, a public meeting, on the Reservation in February
2015. Through the course of participating in the LBBP, the Nation: (1)
employed three staff, (2) held three public meetings in Kansas, (3)
held two public meetings in Wisconsin, (4) held an additional total of
18 outreach events on the Reservation, and (5) had a total of 265
attendees sign in at these events. By final closeout of our cooperative
agreement at the end of September 2015, 1,656 individuals received
offers totaling $10,651,031.00 and 682 individuals accepted for a total
of $5,157,029.00. This represented 3,299 equivalent acres purchased for
the Nation through the Program.
The LBBP provided benefits to our Nation as it reduced the
fractionation of undivided interests on our Reservation. We have
attached a ``before and after'' map showing the results of the LBBP on
our Reservation. The Program was conducted with no cost to the Nation.
Our administrative costs were reimbursable and the funds to purchase
the interests were provided by the United States through the Trust Land
Consolidation Fund. In addition, the LBBP has tripled tribal lease
revenues from our trust lands. The Nation's increased ownership of
undivided interests in tribal trust lands has increased the Nation's
revenues from $53,508.29 in 2013 to $166,784.62 in 2016. It is
important to realize, however, that the LBBP is limited in scope, and
that more is necessary to combat our fractionated interest issue.
The Nation had 323 eligible tracts with a combined 9,618
purchasable fractionated interests with an estimated value of
$25,202,984. The LBBP, for our Reservation, only had offers accepted on
155 tracts. This left 168 eligible tracts, more than 50 percent of the
fractionated land, with no consolidation through the LBBP. While the
LBBP helped reduce fractionation, it by no means eliminated it. Only
one tract was completely purchased by the Nation; thus, eliminating
fractionation only on that one tract. To eliminate fractionation on our
Reservation, we need our participation in the LBBP to be extended, and
the United States needs to fully commit to land consolidation efforts.
Based on our experience with the LBBP, we recommend the following:
Extend offer deadlines. The six months allowed for
landowners to respond was not long enough. It took time for
potential sellers to become familiar with the LBBP and
comfortable with the idea of selling their interests. Some of
our members wanted to sell after the LBBP ended on our
Reservation.
Provide more resources for Outreach activities. We could
have done more outreach for the LBBP if more resources were
provided. With more resources, we would have been able to make
follow-up calls to those who were undecided about selling their
interests or uninformed about the LBBP or its process. This
could have facilitated more sales prior to the deadline.
Provide resources for other efforts to combat the
fractionated interest issue. We engaged in other efforts to
combat the fractionated interest problem on our Reservation.
For example, we conducted a Wills Workshop to help our members
prepare wills in an effort to reduce future fractionation.
Tribal members who pass without wills will create the same
fractionation problem the LBBP is trying fix. The United States
needs to dedicate resources to a variety of efforts aimed at
reducing fractionation.
The LBBP has made positive changes for the Nation. However, more
work is required. We realize that the LBBP has a statutory end date.
All the progress that has been achieved must be protected by extending
the LBBP beyond its expiration. Furthermore, a necessary component to
such an extension is adequate funding. Congress should include
sufficient funding in the DOI's budget to allow all interests to be
purchased from willing sellers. Purchasing some of the undivided
interests is only a band-aid fix: a delay in the land fractionation
problem. Over time we will be in the same position with our
fractionation if we do not engage in a concerted, dedicated effort to
eradicate fractionation once and for all. This will take a serious
commitment to land consolidation. The LBBP must have more time and the
sufficient amount of money to fix the problem the Federal Government
created through its misguided allotment and assimilation policies.
The Nation thanks you for the opportunity to provide written
comments to the Senate Committee on the impacts and future needs of the
Land Buy-Back Program.
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