[Senate Hearing 114-138]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 114-138

    A PATH FORWARD: TRUST MODERNIZATION AND REFORM FOR INDIAN LANDS

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

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              JULY 8, 2015

                               __________

         Printed for the use of the Committee on Indian Affairs
         
         
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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

                              ----------                              
                                                                   Page
Hearing held on July 8, 2015.....................................     1
Statement of Senator Barrasso....................................     1
Statement of Senator Crapo.......................................     2
Statement of Senator Franken.....................................    26
Statement of Senator Hoeven......................................    35
Statement of Senator Lankford....................................    24
Statement of Senator Moran.......................................    32
Statement of Senator Tester......................................     4
    Prepared statement...........................................     4
Statement of Senator Udall.......................................     3

                               Witnesses

Lintinger, Hon. Brenda, Councilwoman, Tunica-Biloxi Tribe of 
  Louisiana; Secretary, United South and Eastern Tribes..........    19
    Prepared statement...........................................    21
Stensgar, Hon. Ernest L., Vice-Chairman, Coeur d'Alene Tribe.....    15
    Prepared statement...........................................    16
Washburn, Hon. Kevin, Assistant Secretary, Indian Affairs, U.S. 
  Department of the Interior.....................................     5
    Prepared statement...........................................     7

                                Appendix

Pata, Jacqueline, Executive Director, National Congress of 
  American Indians, prepared statement...........................    41
Response to written questions submitted by Hon. Steve Daines to 
  Hon. Kevin Washburn............................................    44

 
    A PATH FORWARD: TRUST MODERNIZATION AND REFORM FOR INDIAN LANDS

                              ----------                              


                        WEDNESDAY, JULY 8, 2015


                                       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. Good afternoon. I call this hearing to order.
    Before we begin, I would like to mention the Senate's 
passage yesterday of S. 286, the Department of the Interior 
Tribal Self-Governance Act of 2015. I believe this to be a 
great step forward for Indian Country. S. 286 is a common sense 
bill supported by tribes across the Country and by the 
Administration. It will give tribes a better opportunity to 
advance the policy of tribal self-governance, reduce Federal 
bureaucracy and promote accountability.
    I want to thank Senator Tester, Vice Chairman of this 
Committee, and other co-sponsors, and all the members of the 
Committee, for their work to get S. 286 through the Senate. Now 
I call on our colleagues in the House to act quickly so we can 
send this important bill to the President for signature.
    Today the Committee will hold an oversight hearing entitled 
A Path Forward: Trust Modernization and Reform for Indian 
Lands. It is time that we take a new look at the status quo by 
breaking free from old mind sets and burdensome processes and 
finding a path forward together. For far too long, Indian lands 
have been tied up in bureaucratic red tape that hinders Tribes' 
sovereignty over their land and ability to lead their people 
into a prosperous 21st century.
    It is time to reform the outdated rules and regulations 
that are tying the hands of tribes striving for greater 
respect, independence and success. Outdated Indian land 
policies must be modernized to encourage local cooperation, 
economic development and freedom from excessive Federal 
intervention for the betterment of Indian Country.
    Tribes are ready, willing and able to direct the management 
of their lands and affairs. We must support those tribes 
working to do this so that they can actually achieve robust 
self-determination. It is about time for Federal policy to 
catch up with modern times. One of those changes in policies 
has to do with eliminating, downsizing or transferring duties 
from, the Office of the Special Trustee to the Office of 
Assistant Secretary for Indian Affairs. It is clear that the 
Office of Special Trustee was never meant to be a long-term 
office at the Department of the Interior. As it stands, there 
is a duplication of efforts within Interior that is burdensome, 
confusing and costly.
    I will note that the Committee invited the heads of both 
key offices to testify today. Yesterday the Department of the 
Interior decided against sending the Special Trustee, Vince 
Logan. So Assistant Secretary Washburn will be testifying on 
behalf of the Department about the role of the office of 
Special Trustee. I think this underscores some of the questions 
we will hear today about whether the Office of Special Trustee 
has outlived its purpose.
    There also needs to be a common sense and streamlined 
approach with regard to taking land into trust. I appreciate 
the Administration's ongoing efforts in this regard, but we can 
do better. In each session since the 111th Congress, a member 
from this Committee has introduced legislation calling for a 
clean fix to the Supreme Court's Carcieri decision. It is clear 
from past efforts there are no shortcuts.
    I know from the Carcieri roundtable I hosted earlier this 
year that more work needs to be done to cross the finish line. 
I look forward to working with the Committee to craft a winning 
solution for Indian Country.
    Before we hear from the panel, I ask if there are any other 
members who would like to make an opening statement. Senator 
Crapo.

                 STATEMENT OF HON. MIKE CRAPO, 
                    U.S. SENATOR FROM IDAHO

    Senator Crapo. Thank you, Mr. Chairman, for holding this 
important oversight hearing on trust reform and associated 
issues.
    Let me begin by introducing and welcoming a good friend, 
Vice Chairman Ernest Stensgar of the Coeur D'Alene Tribe, who 
has traveled here from Idaho to be with us today to testify on 
Senate Bill 383, the Indian Trust Asset Reform Act. Ernie has 
been a true leader on this issue, serving as Chairman of the 
trust reform committee with the Affiliated Tribes of Northwest 
Indians, and has extensive knowledge and background on trust 
asset reform.
    As Ernie will attest, the Coeur D'Alene Tribe has long 
sought to increase tribal management and control over its own 
resources and assets, which is the primary goal of this bill. 
For too long, Federal policies have been overly paternalistic 
and burdensome, which has limited opportunities for Native 
peoples. We are long overdue for a change in direction when it 
comes to trust asset management.
    Members of this Committee know that trust modernization 
remains a priority for Indian Country. Under the current 
system, non-monetary tribal assets such as land and natural 
resources held in trust by the Federal Government require 
extensive bureaucratic hurdles to be overcome before any tribe 
may utilize those assets for the benefit of its members. This 
is simply unacceptable and is not in touch with Federal 
policies of promoting greater tribal self-reliance.
    Earlier this year, in consultation with the Coeur D'Alene 
Tribe and others, I introduced S. 383. My Idaho colleague, 
Senator Jim Risch, joined me as an original co-sponsor and 
Idaho's two Representatives, Mike Simpson and Raul Labrador, 
have been leading the effort in the House of Representatives.
    The Coeur D'Alene Tribe has been a leading partner on S. 
383, which would allow tribes, on a voluntary basis, to submit 
long-term management plans for tribal resources to promote 
economic activity and Indian self-determination. Under the 
bill, the Secretary of the Interior would have the authority to 
approve such tribally-directed asset management plans.
    Further, the bill would also provide for reforms to the 
management structure within the Department of the Interior to 
reduce regulatory red tape that tribes face when trying to 
utilize trust resources.
    The bill would also require a report to be submitted to 
Congress on the asset management functions and the roles of the 
Bureau of Indian Affairs and the Office of Special Trustee. 
Indian Country has long complained that the involvement of both 
the Bureau of Indian Affairs and the OST in day-to-day 
transactions has resulted in miscommunication, delay and 
inefficiency.
    To remedy this, the report provision contained in S. 383 
requires a plan to be submitted to Congress on how to 
streamline these functions. S. 383 has been endorsed by the 
National Congress of American Indians and the Affiliated Tribes 
of Northwest Indians, which includes approximately 60 member 
tribes in Idaho, Washington, Oregon, Montana, California and 
Alaska. Other national and regional tribal organizations and 
individual tribes have previously endorsed the concepts 
contained in this bill.
    I will let Ernie share additional details on S. 383 and 
what it would mean for the Coeur D'Alene Tribes and other 
Native communities in his testimony. I will simply close my 
remarks by once again thanking him for agreeing to testify 
before the Committee today.
    Thank you, again, Mr. Chairman, for holding this hearing. I 
look forward to our discussion on S. 383 and hearing from all 
of our witnesses.
    The Chairman. Thank you, Senator Crapo.
    Any other members who would like to be heard? Senator 
Udall.

                 STATEMENT OF HON. TOM UDALL, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Udall. Thank you very much. Let me thank the 
Chairman and Vice Chairman for holding this hearing.
    The Federal Government's trust obligations have been the 
subject of numerous breach of trust lawsuits related to the 
functions of the Federal Government and how it carries out 
these activities on behalf of the tribes. Clearly, there is a 
disagreement on a number of fronts. I know Senator Crapo has a 
bill, The Navajo Nation, has talked to me about a bill. There 
are proposals circulating, there are a number of issues 
floating out there.
    I think today's hearing is a good opportunity to have a 
conversation about Federal trust responsibility and how that 
looks for the future. We should do this, taking the best 
expertise from the Department. I am very happy to see that 
Secretary Washburn is here to give us his testimony. I have 
read his statement. I think it is a very, very good statement 
in terms of giving us an overview.
    With that, I look forward to today's hearing and witnesses. 
I yield back.
    The Chairman. Thank you. Any other members who wish to be 
heard?
    Senator Tester.

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

    Senator Tester. Just really quickly. I will ask that my 
full statement be put into the record.
    I want to thank Kevin for being here. I want to thank the 
representatives from the Tunica-Biloxi Tribe and the Coeur 
D'Alene Tribe for being here also.
    But I would just say, I look forward to this conversation. 
I know there are some who serve in Congress who think that 
recognition should be totally our job. I am talking about the 
folks in the Senate and the House, and not the Department's 
job. I think that was the risk before a wreck by politicizing 
your recognition. I think, Kevin, you have done a respectable 
job in trust reform. I would love to hear about it and love to 
hear the direction that the Department anticipates this going 
as we move forward.
    With that, Mr. Chairman, thank you for holding this 
hearing.
    [The prepared statement of Senator Tester follows:]

    Prepared Statement of Hon. Jon Tester, U.S. Senator from Montana
    Thank you, Mr. Chairman, for holding this hearing today on my land-
into-trust bill and Senator Crapo's trust reform bill. I know these 
bills have broad support and I am happy that this Committee can 
continue to make progress on important tribal issues.
    Last month, this Committee reported out a bill that had broad 
support among tribes and which would protect tribal sovereignty by 
providing parity with state governments.
    I think my bill falls into a similar category. S. 732 would provide 
parity among all tribes after a wrong decision by the Supreme Court 
called into question the authority of the Secretary to place land into 
trust for many of our tribal nations.
    S. 732 has immense tribal support, and has bipartisan support both 
here in the Senate and in the House. One bill in the House has over 30 
cosponsors, and half from each party. So this really is a bipartisan 
effort, and I think we have a real chance to see a Carcieri-fix get 
enacted. I want to thank my colleague Senator Moran and others on the 
Committee for cosponsoring this bill.
    The Administration has consistently asked for this no-cost fix each 
year in its budget, and I think all or nearly all of the national and 
regional tribal organizations have stated their support for fixing this 
issue. Last Congress, even the U.S. Chamber of Commerce wrote a letter 
in support of this fix.
    Letting this Supreme Court decision continue to stand creates two 
classes of tribes. This is simply not fair and it inhibits economic 
development on tribal lands. I think we can all agree we need less 
obstacles to tribal development, not more.
    As for trust reform, I agree that we need to look into this issue. 
Over the last five years we've settled over 70 trust-mismanagement 
cases with tribes, and of course there is the Cobell settlement that 
dealt with trust-mismanagement of assets held for individual Indians. 
Due to those cases, even the Secretary of the Interior established a 
Commission on Trust Reform, which issued its report at the very end of 
2013.
    We held a hearing on these issues last year, so I appreciate the 
Committee continuing to look at how to address these issues. I'm 
interested to hear the Administration discuss their ongoing trust 
modernization efforts. As always, I want to thank the witnesses for the 
work they do, and for their time in coming here today.

    The Chairman. Thank you very much, Senator Tester.
    Today we are going to hear from our witnesses, the 
Honorable Kevin Washburn, Assistant Secretary, Indian Affairs, 
U.S. Department of the Interior; the Honorable Ernie Stensgar, 
who was already introduced by Senator Crapo. He is Vice 
Chairman, Coeur d'Alene Tribe, Plummer, Idaho. And we have the 
Honorable Brenda Lintinger, Councilwoman, Tunica-Biloxi Tribe 
of Louisiana, in Marksville, Louisiana, and Secretary, United 
South and Eastern Tribes of Nashville, Tennessee.
    I want to remind the witnesses that your full written 
testimony will be part of the official hearing record. So 
please keep your statements to under five minutes so that we 
may have time for questions. I look forward to hearing your 
testimony, beginning with Mr. Washburn. Please proceed.

          STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT 
       SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 
                            INTERIOR

    Mr. Washburn. Thank you, Chairman, Vice Chairman and 
members of the Committee. Congratulations on the passage of S. 
286. That truly is a great step forward, and I hope that we can 
get it passed on the House side soon. It is a great step 
forward for tribal self-governance.
    The title of this hearing is involving trust modernization. 
Let me say, the key to trust modernization is tribal self-
determination and tribal self-governance. The United States has 
a solemn trust responsibility to Indian nations and Indian 
people, and it can perform the functions necessary to meet that 
responsibility in a paternalistic fashion, as it did for many 
decades, or it can take a more modern approach.
    I believe that the more modern approach, the one preferred 
by the Obama Administration, has two hallmarks. First, we 
should consult frequently with tribes to ensure that the 
Federal Government does what tribes think best. Second, we 
should contract with tribes to provide the goods and services 
to Indian people, because they know better how to meet the 
trust responsibility if we give them adequate resources. So our 
approach has the effect of furthering the trust responsibility 
but also while expanding tribal sovereignty and tribal 
capacity.
    The Obama Administration has worked hard to ensure that we 
are restoring lands to tribes where they have authority to 
exercise self-governance. We have been restoring tribal 
homelands. We have taken more than 300,000 acres of land into 
trust for tribes. We also, through the Cobell settlement and 
the Land Buyback Program, have consolidated more than 900,000 
acres to tribes. So it is really starting to make a huge 
difference, frankly.
    On our land into trust efforts, we proceed very carefully, 
of course. One of the subjects that seems to come up around 
trust modernization and trust reform and a Carcieri fix is, how 
do we deal with all the stakeholders that have an interest in 
land into trust. I assure you that we seek the input from 
stakeholders and we carefully consider the input they provide.
    We specifically ask State and local governments for their 
views and we ask them to submit their views in writing. We give 
very special consideration to State and local governments when 
it comes to land into trust issues. So we really want to know 
their views. That is why we go to all that effort.
    I will tell you that trust land applications that move 
through the process most swiftly those in which the tribe and 
the local governments and the State all agree. When we have 
come to agreement on important issues such as provision of 
services and other key elements, those applications tend to 
work out really quickly. We don't disapprove a lot of trust 
land applications, but they languish a lot of times when they 
don't have agreement with the State and local governments. 
Those are the ones that don't move through the process very 
quickly. And so working with State and local governments is 
often key to success.
    We have also done trust modernization in Alaska. We have 
put the world on notice that we will begin using the authority 
to take land into trust in Alaska soon. We think that is a 
great step forward.
    Leasing, we have modernized our trust responsibilities 
around leasing of Indian lands. We have updated our own leasing 
regulations to be more deferential to tribal decisions. 
Congress has passed and the President signed the HEARTH Act in 
2012, which allows tribes to take over this function from the 
BIA. Roughly 20 tribes have taken advantage of the HEARTH Act 
and taken over leasing on their lands.
    We are also working to move this direction with rights of 
way, working to modernize our rights of way regulations.
    Now, the Committee heard a hearing two weeks ago on dual 
taxation. I wasn't here in the room, but I did watch it on the 
video. The Committee has expressed great frustration over our 
inability to solve this very serious problem. Frankly, I am 
frustrated by it and the President is very frustrated by it 
too.
    One of the problems is that short-term fixes are not easy. 
And they are short term. The long-term fix, of course, involves 
not just education but also jobs and economic development on 
Indian reservations. Indian people need jobs and tribal 
governments need resources to provide economic development and 
social services.
    One of the most significant challenges to economic 
development on Indian lands is the problem of dual taxation, 
the idea that State governments can tax on reservation economic 
activity. State taxation crowds out the ability of tribes to 
engage in taxation on Indian lands. If tribes impose additional 
taxes for those activities, then no business is going to want 
to locate there.
    I don't think it will surprise many people to say that 
taxes can kill economic development. That is why the Obama 
Administration has been working hard to prevent dual taxation 
on Indian reservations.
    The Administration has limited authority to address this 
issue, but we are working hard on it. We need Congress to take 
this issue seriously. So if you really want to get serious 
about important issues like Indian youth suicide, then we have 
to improve tribal economic development on these Indian 
reservations. Addressing the dual taxation problem is an 
important step toward trust modernization to address that.
    Let me stop there and hold for questions and turn it over 
to Chairman Ernie Stensgar.
    [The prepared statement of Mr. Washburn follows:]

Prepared Statement of Hon. Kevin Washburn, Assistant Secretary, Indian 
                Affairs, U.S. Department of the Interior
    Chairman Barrasso, Vice Chairman Tester, and Members of the 
Committee, my name is Kevin Washburn and I am the Assistant Secretary 
for Indian Affairs at the Department of the Interior (Department). 
Thank you for the opportunity to present testimony for the Department 
for this oversight hearing titled ``A Path Forward: Trust Modernization 
& Reform for Indian Lands.''
    One of the Obama Administration's highest priorities is to restore 
tribal homelands by taking lands into trust for tribes. Our work to 
restore Tribal lands was explicitly authorized by Congress in Section 5 
of the Indian Reorganization Act of 1934. Under this authority, the 
Obama Administration has taken more than 300,000 acres of land into 
trust for tribes since 2009. Much remains to be done in this area, of 
course, and a clean Carcieri fix is a necessary requisite to providing 
land in trust for all tribes.
    Of course the Administration's settlement of the Cobell lawsuit 
produced an expansive trust land initiative for tribes to ameliorate 
the problems associated with fractionated parcels of trust lands. In 
the legislation enacting the Cobell settlement, Congress authorized the 
Department to spend approximately $1.55 billion to consolidate 
fractionated trust interests. The Department has purchased the 
equivalent of roughly 900,000 acres of fractionated lands and restored 
it to tribes. These are historic efforts to modernize our relationship 
to tribes by correcting past mistakes in federal policy.
The Indian Reorganization Act
    In 1887, Congress enacted the General Allotment Act. The General 
Allotment Act divided tribal land into 80- and 160-acre parcels for 
individual tribal members. The allotments to individuals were to be 
held in trust for the Indian owners for no more than 25 years, after 
which the owner would hold fee title to the land. So-called ``surplus 
lands,'' that is, those lands that were not allotted to individual 
members, were taken out of tribal ownership and conveyed to non-
Indians. Moreover, many of the allotments provided to Indian owners 
fell out of Indian ownership through tax foreclosures, particularly 
during the Great Depression.
    The General Allotment Act resulted in an enormous loss of tribally 
owned lands, and is responsible for the current ``checkerboard'' 
pattern of ownership and jurisdiction on many Indian reservations. 
Approximately \2/3\ of tribal lands, amounting to more than tens of 
millions of acres, were lost as a result of the land divestment 
policies established by the General Allotment Act and various homestead 
acts. Moreover, prior to the passage of the General Allotment Act, many 
tribes had already endured a steady erosion of their land base during 
the removal period of federal Indian policy.
    The Secretary of the Interior's Annual Report for fiscal year 
ending June 30, 1938, reported that Indian-owned lands had been 
diminished from approximately 130 million acres in 1887, to only 49 
million acres by 1933. Much of the remaining Indian-owned land was 
considered ``waste and desert.'' According to Commissioner of Indian 
Affairs John Collier in 1934, tribes had lost 80 percent of the value 
of their land during this period, and individual Indians realized a 
loss of 85 percent of their land value.
    In light of the devastating effects on Indian tribes of its prior 
policies, Congress enacted the Indian Reorganization Act in 1934. 
Congress's intent in enacting the Indian Reorganization Act was three-
fold: to halt the federal policy of allotment and assimilation; to 
reverse the negative impact of allotment policies; and to secure for 
all Indian tribes a land base on which to engage in economic 
development and self-determination.
    The first section of the Indian Reorganization Act expressly 
discontinued the allotment of Indian lands. The next section preserved 
the trust status of Indian lands in perpetuity. In section 3, Congress 
authorized the Secretary of the Interior to restore tribal ownership of 
the remaining ``surplus'' lands on Indian reservations. Most 
importantly, in Section 5, Congress authorized the Secretary to secure 
and return tribal homelands by acquiring land to be held in trust for 
Indian tribes, and authorized the acquisition of land in trust for 
individual Indians. That section has been called ``the capstone of the 
land-related provisions of the [Indian Reorganization Act].'' Cohen's 
Handbook of Federal Indian Law  15.07[1][a] (2005). The Indian 
Reorganization Act also authorized the Secretary to proclaim new 
reservations.
    The United States Supreme Court has recognized that the Indian 
Reorganization Act's ``overriding purpose'' was ``to establish 
machinery whereby Indian tribes would be able to assume a greater 
degree of self-government, both politically and economically.'' Morton 
v. Mancari, 417 U.S. 535, 542 (1974). Congress recognized that one of 
the key factors for tribes in developing and maintaining economic and 
political strength lay in the protection of each tribe's land base.
    Acquisition of land in trust is essential to tribal self-
determination. Tribes are sovereign governments and trust lands are a 
primary locus of tribal authority. Indeed, many federal programs and 
services are available only on reservations or trust lands. The current 
federal policy of tribal self-determination is built upon the 
principles Congress set forth in the Indian Reorganization Act and 
reaffirmed in the Indian Self-Determination and Education Assistance 
Act. Through the protection and restoration of tribal homelands, this 
Administration has sought to live up to the standards Congress 
established eight decades ago and indeed to reinvigorate the policies 
underlying the Indian Reorganization Act.
    Most tribes lack an adequate tax base to generate government 
revenues, and many have few opportunities for economic development. 
Trust acquisition of land increases opportunities for economic 
development and helps tribes generate revenues for public purposes.
    The benefits to tribes are many. For example, trust acquisitions 
provide tribes the ability to enhance housing opportunities for their 
citizens. Trust acquisitions also are necessary for tribes to realize 
the tremendous energy development capacity that exists on their lands. 
Trust acquisitions also allow tribes to grant certain rights-of-way and 
enter into leases necessary for tribes to negotiate the use and sale of 
their natural resources. Additionally, trust lands provide the greatest 
protections for many communities who rely on subsistence hunting and 
agriculture that are important elements of tribal cultures and life 
ways.
    Though the General Allotment Act was enacted and then repudiated 
long ago, tribes continue to feel the devastating effects of the policy 
that divided tribal lands, allotted parcels to individual tribal 
members and provided for the public sale of any surplus tribal lands 
remaining after allotment. Taking land into trust can address those 
negative effects.
The Department of the Interior's Fee-to-Trust Regulations
    The Secretary has delegated the power to take land into trust to 
the Assistant Secretary--Indian Affairs. For most applications, the 
power is further delegated to officials in the Bureau of Indian Affairs 
(BIA). When the Department acquires land in trust for tribes and 
individual Indians under the Indian Reorganization Act, the Department 
must use discretion following careful consideration of the criteria for 
trust acquisitions in the Department's regulations at 25 C.F.R. Part 
151 (151 Regulations), unless Congress mandates that the Department 
acquire the land in trust. These regulations have been in place since 
1980, and have established a clear and consistent process for 
evaluating fee-to-trust applications that considers the interests of 
all affected parties.
    The 151 Regulations establish clear criteria for trust 
acquisitions. The Secretary or her delegate must consider additional 
criteria in acquiring land that is outside of a tribe's existing 
reservation, rather than within, or contiguous to, its existing 
reservation. Taking land into trust is an important decision, not only 
for the Indian tribe or individual Indian seeking the determination, 
but for the local community where the land is located. For example, the 
transfer of land from fee title to trust status may have tax and 
jurisdictional consequences that must be considered before a 
discretionary trust acquisition is completed.
    The Part 151 process is initiated when a tribe or individual Indian 
submits a request to the Department to have land acquired in trust. The 
regulations require that an applicant submit a written request 
describing the land to be acquired and other information. Once a 
request arrives at the BIA agency or regional office, it is entered 
into the BIA's Fee-to-Trust Tracking System. The request is reviewed to 
determine whether all information has been submitted and whether there 
are additional steps needed to complete the application. The BIA works 
with the applicant to complete the application.
    The regulations require that an application for fee-to-trust 
contain the following:

   a written request stating that the applicant is requesting 
        approval of a trust acquisition by the United States of 
        America;

   identification of applicant(s);

   a proper legal land description;

   the need for acquisition of the property;

   purpose for which the property is to be used; and

   a legal instrument such as a deed to verify applicant's 
        ownership.

    In addition, Tribal applicants must also submit the following:

   Tribal name as it appears in the Federal Register;

   statutory authority; and,

   if the property is off-reservation, a business plan and 
        location of the subject property relative to state and 
        reservation boundaries.

    An individual Indian applicant is also required to submit the 
following: evidence of eligible Indian status, acreage of trust or 
restricted Indian land already owned by the applicant, and information 
or statement from the applicant addressing the degree to which the 
applicant needs assistance in handling its affairs.
    The BIA must take several internal steps necessary to assess the 
application. These include determining whether the land is located 
within, or contiguous to, the applicant's reservation, and whether the 
trust acquisition is mandated by existing law or falls within the 
Department's discretion to take lands into trust. The BIA must assess 
whether the land is currently under the tribe's jurisdiction and, if 
not, whether there are any additional responsibilities the BIA would 
assume if the fee land were taken into trust. Finally, the BIA may also 
need to determine whether the property lies within the Indian tribe's 
approved Land Consolidation Plan.
    The BIA requires additional information if a tribe seeks to have 
land acquired in trust not located within or contiguous to its 
reservation. The BIA will request a business plan if the land is to be 
used for economic development. If the land is within the reservation of 
another Indian tribe, the applicant must receive written consent from 
the other tribe's governing body if the applicant does not already own 
a fractional trust or restricted fee interest in the property to be 
acquired. If the land is off-reservation, the BIA must examine the 
proximity to the applicant's reservation.
    Once an applicant has submitted sufficient information, the BIA 
mails notification letters to the state, county, and municipal 
governments having regulatory jurisdiction over the land, and requests 
written comments on the proposed acquisition. Prior to making a 
decision on each discretionary acquisition, the Department must 
evaluate the application pursuant to each of the factors identified in 
the regulations at 25 CFR  151.10 (on-reservation) and 25 C.F.R.  
151.11 (off-reservation). One of the eight (8) factors considered is 
the applicant's need of for additional land.
    The BIA must also comply with the requirements of the National 
Environmental Policy Act (NEPA) and Departmental environmental review 
requirements in making its determination. The NEPA requires the BIA to 
disclose and analyze potential environmental impacts of taking land in 
trust and, depending on the type of NEPA review required, may affords 
the public an opportunity to review and provide comments on those 
impacts.
    In November 2013, the Department published new regulations 
governing decisions by the Secretary to approve or deny applications to 
acquire land in trust. Fee-to-trust decisions are subject to 
administrative and judicial review under the Administrative Procedures 
Act.
    A lot of misinformation has been repeated about this fee-to-trust 
process. It is a lengthy and time-consuming process in which many 
applications fail. Formal disapproval is rare because applicants often 
withdraw an application if the standards cannot be met. Moreover, many 
applications languish for years as the applicant and the BIA seek to 
address issues that arise in BIA review or public comment.
Trust Modernization Through Implementation of the Land Buy-Back 
        Program
    The mistakes made by Congress and the Federal Government in the 
Allotment Era are very difficult to rectify today. The Land Buy-Back 
Program for Tribal Nations (Buy-Back Program) is an important 
initiative designed to alleviate the impacts of fractionation and 
expand tribal sovereignty. For example, the Buy-Back Program has 
transferred the equivalent of more than 270,000 acres of land to the 
Oglala Sioux Tribe. In the short term, much of the money paid to obtain 
the interests will be spent in tribal communities. In the long-term, 
transferring millions of acres of land to tribes will ultimately 
strengthen each tribal community and generate economic benefits to 
those communities. Tribal acquisition of fractionated lands will 
``unlock'' those lands for tribes, making them available to support 
economic development to benefit tribal members.
    The Cobell Settlement became final on November 24, 2012. Since 
then, we have engaged in government-to-government consultation on our 
plans for implementation--with consultations in Minneapolis (January 
2013); Rapid City (February 2013); Seattle (February 2013)--and held 
numerous meetings with tribes and inter-tribal organizations.
    We continue working diligently to implement the Buy-Back Program. 
Since November 24, 2012, we have:

   Sent offers to more than 86,000 landowners exceeding $1.5 
        billion.

   Transferred land to tribal trust ownership for 18 tribes, 
        totaling nearly 900,000 acres through purchases from willing 
        sellers.

   Paid over half a billion dollars to Indian landowners across 
        the United States.

   Entered into cooperative agreements with at least 20 tribes

   Hired 59 full-time employees and expended approximately $29 
        million of the overall implementation/administrative portion of 
        the fund; some of these expenditures included one-time, up-
        front costs, such as the Trust Commission, mapping, and 
        equipment.

Land-Buy-Back Program: Lessons Learned
    The Buy-Back Program is an effort of significant scope and 
complexity, which has great importance to Indian Country. No effort 
this massive and complex could proceed without mistakes and course 
corrections. However, as we continue to implement the Buy-Back Program, 
we have incorporated lessons learned, best practices, and tribal 
feedback to enhance the overall effectiveness of the Program's 
implementation strategy. We have heard from tribes on a number of 
issues, including the cooperative agreement process, scheduling, and 
reporting on both the expenditure of administrative costs and the 
acceptance of offers on reservations. Many features of the Buy-Back 
Program have come as a direct result of tribal consultation and 
informal feedback from tribal leaders, such as the need for a minimum 
base payment to sellers and provision of indirect costs.
    The Land Buy-Back Program is an important step in trust 
modernization which seeks, in some ways, to turn back the clock on the 
allotment era.
Trust Modernization in the Fee-to-Trust Regulations for Alaska
    Section 5 of the Indian Reorganization Act (IRA), as amended, 
authorizes the Secretary of the Interior (Secretary) to acquire land in 
trust for individual Indians and Indian tribes in the continental 
United States and Alaska. 25 U.S.C. 465; 25 U.S.C. 473a. For several 
decades, the Department's regulations at 25 CFR part 151, which 
establish the process for taking land into trust, have included a 
provision stating that the regulations in part 151 do not cover the 
acquisition of land in trust status in the State of Alaska, except 
acquisitions for the Metlakatla Indian Community of the Annette Island 
Reserve or its members (the ``Alaska Exception''). 25 CFR 151.1. The 
Department, just over half a year ago, finalized a rule deleting the 
Alaska Exception, thereby allowing applications for land to be taken 
into trust in Alaska to proceed under the part 151 regulations. The 
Department retains its usual discretion to grant or deny land-into-
trust applications and makes its decisions on a case-by-case basis in 
accordance with the requirements of part 151 and the IRA.
    As noted above, Section 5 of the IRA authorizes the Secretary, in 
her discretion, to acquire land in trust for Indian tribes and 
individual Indians. 25 U.S.C. 465; Cohen's Handbook on Federal Indian 
Law section 15.07[1][a], at 1030 (2012 ed.). In 1936, Congress 
expressly extended Section 5 and other provisions of the IRA to the 
Territory of Alaska. Act of May 1, 1936, Public Law 74-538, section 1, 
49 Stat. 1250 (codified at 25 U.S.C. 473a).
    Thirty-five years later, in 1971, Congress enacted the Alaska 
Native Claims Settlement Act (ANCSA), Public Law 92-203, 85 Stat. 688 
(codified as amended at 43 U.S.C. 1601 et seq.), ``a comprehensive 
statute designed to settle all land claims by Alaska Natives.'' Alaska 
v. Native Village of Venetie Tribal Government, 522 U.S. 520, 523 
(1998). The Act revoked all but one of the existing Native reserves, 
repealed the authority for new allotment applications, and set forth a 
broad declaration of policy to settle land claims. See 43 U.S.C. 
1618(a), 1617(d), and 1601(b). However, the statutory text of ANCSA did 
not revoke the Secretary's authority, under Section 5 of the IRA as 
extended by the 1936 amendment, to take land into trust in Alaska.
    A number of recent developments, including a pending lawsuit, 
caused the Department to look carefully at its policy on land into 
trust in Alaska. See Akiachak Native Cmty v. Salazar, 935 F. Supp. 2d 
195 (D.D.C. 2013). Most significantly, the Indian Law and Order 
Commission, formed by Congress to investigate criminal justice systems 
in Indian Country, brought to light the shocking and dire state of 
public safety in Alaska Native communities and made specific 
recommendations to address these challenges. Indian Law and Order 
Commission, ``A Roadmap For Making Native America Safer: Report to the 
President and Congress of the United States,'' at 33-61 (November 
2013). The Commission's report expressly acknowledged that ``a number 
of strong arguments can be made that [Alaska fee] land may be taken 
into trust and treated as Indian country'' and ``[n]othing in ANCSA 
expressly barred the treatment of former [Alaska] reservation and other 
Tribal fee lands as Indian country.'' Id. at 45, 52. Moreover, the 
Commission recommended allowing these lands to be placed in trust for 
Alaska Natives. See id. at 51-55. Likewise, the Secretarial Commission 
on Indian Trust Administration and Reform was established by former 
Secretary of the Interior Ken Salazar to evaluate the existing 
management and administration of the trust administration system, as 
well as review all aspects of the federal-tribal relationship. Report 
of the Commission on Indian Trust Administration and Reform, at 1 (Dec. 
10, 2013). This Commission endorsed the earlier findings and likewise 
recommended allowing Alaska Native tribes to put tribally owned fee 
simple land into trust. Id. at 65-67.
    In light of those urgent policy recommendations, the Department 
carefully reexamined the legal basis for the Secretary's discretionary 
authority to take land into trust in Alaska under Section 5 of the IRA. 
In particular, the Department reviewed the statutory text of ANCSA and 
other Federal laws and concluded that the Secretary's authority was 
never extinguished. Congress explicitly granted the Secretary authority 
to take land into trust in Alaska under the IRA and its amending 
legislation. Although Congress, through the enactment of ANCSA and 
other laws, repealed other statutory provisions relevant to Alaska 
Native lands, it has never passed any legislation that revokes the 
Secretary's authority to make trust land acquisitions in Alaska, as 
codified in 25 U.S.C. 473a and 25 U.S.C. 465.
    In sum, ANCSA left these provisions and the Secretary's resulting 
land-into-trust authority in Alaska intact. Thus, the Secretary retains 
discretionary authority to take land into trust in Alaska under Section 
5 of the IRA. Due to pending litigation, the Department is currently 
not engaged in taking land into trust. However, repealing the Alaska 
exception is an important step in trust modernization over the long 
term for Alaska Natives.
Trust Modernization in Surface Leasing Regulations for Indian Lands
    The Department of the Interior currently holds approximately 56 
million acres of land in trust for Indian tribes and individual 
Indians. As trustee of those lands, the Department must ensure that the 
lands are protected, and that they are used for the benefit of the 
tribes and individual Indians for whom they are held. Congress has 
enacted laws that require the Department to approve leases on Indian 
lands. The Department's regulations are intended to implement its trust 
responsibility under those laws.
    During its first term, the Obama Administration believed it was 
necessary to reform the surface leasing regulations because the 
Department's existing regulations were originally adopted 50 years ago, 
and were ill-suited to the modern needs of Indian tribes and individual 
Indians in using their lands for housing, economic, and wind & solar 
energy development. When President Obama took office in 2009, the 
existing regulations did not impose timelines for the Department to 
complete its review of leases, often resulting in delays in approving 
leases, amendments, subleases, mortgages, and assignments. They did not 
make a distinction between leases for single-family residences and 
large business developments--meaning the Department reviewed leases 
under a ``one-size fits all'' structure. As a result, a lease for a 
single-family residence might take years to approve. Finally, the 
leasing regulations required the Department to heavily scrutinize and 
sometimes second-guess the judgment of Indian landowners in the 
development of their own lands.
    The final regulations enacted by the Obama Administration, which 
took effect in early 2013, streamlined the leasing process by imposing 
timelines on the Department for reviewing leases: up to 30 days for 
residential leases, and up to 60 days for business leases and wind & 
solar energy leases. The new regulations distinguish between 
residential, business, and wind & solar energy leases, and establish 
separate processes for review. They also permit the automatic approval 
of subleases and amendments to existing leases if the Department fails 
to act within the review timeframe. The new regulations eliminate the 
requirement for Department approval of ``permits'' for activities on 
Indian lands, and defer to the judgment of tribes and individual 
Indians on land use (and rental rates) in most instances. The 
regulations establish a new, streamlined process for the development of 
wind & solar energy projects on Indian lands.
    Another important aspect of the new leasing regulations is that 
they seek to address the troubling problem of dual taxation of 
reservation economic activity, which discourages (or inhibits) economic 
development. Leases approved by the BIA carry a federal pre-emption of 
state taxation of activities conducted under the lease.
    The Department anticipates that the regulations will increase 
homeownership on Indian lands, by streamlining the process for the 
approval of leases, subleases, and mortgages. The regulations also 
streamline leasing for small businesses and commercial developments on 
Indian lands, promoting private investment in businesses in Indian 
communities. By establishing a streamlined process for wind & solar 
energy resource assessment and development, the regulations remove 
significant obstacles to wind & solar energy development on Indian 
lands. Finally, by addressing the dual taxation, the regulations foster 
(or promote) a friendlier business environment on tribal lands so that 
tribes will be able to attract economic development.
    These regulations are an important part of a broader agenda to 
reform and improve the management of Indian lands across the United 
States. The Department's regulations govern the process of how it 
reviews and approves leases on Indian lands. The regulations overhaul a 
process that was antiquated and ill-suited for modern development needs 
on Indian lands.
Trust Modernization in Tribal Leasing Laws Under the HEARTH Act
    The Department worked closely with both houses of Congress to 
support passage of the Helping Expedite and Advance Responsible Tribal 
Homeownership (HEARTH) Act in 2012. Under the HEARTH Act, tribes may 
choose to develop their own leasing regulations to implement their own 
leasing programs. The HEARTH Act and our newly revised leasing 
regulations each provide tribes with greater control over leasing of 
their land. The Department has worked diligently to implement the 
HEARTH Act in the spirit of tribal self-determination by encouraging 
the development and submission of Tribal HEARTH Act laws. The 
Department has approved such laws for 20 tribes, empowering each of 
these tribes to exercise greater control of its economic destiny.
    The HEARTH Act of 2012 (the Act) makes a voluntary, alternative 
land leasing process available to tribes, by amending the Indian Long-
Term Leasing Act of 1955, 25 U.S.C. 415. The Act authorizes tribes to 
negotiate and enter into agricultural and business leases of tribal 
trust lands with a primary term of 25 years, and up to two renewal 
terms of 25 years each, without the approval of the Secretary of the 
Interior. The Act also authorizes tribes to enter into leases for 
residential, recreational, religious or educational purposes for a 
primary term of up to 75 years without the approval of the Secretary. 
Participating tribes develop tribal leasing regulations, including an 
environmental review process, and then must obtain the Secretary's 
approval of those regulations prior to entering into leases. The Act 
requires the Secretary to approve tribal regulations if the tribal 
regulations are consistent with the Department's own leasing 
regulations at 25 CFR Part 162 and provide for an environmental review 
process that meets requirements set forth in the Act.
    As the Department explained in the preamble to the updated final 
leasing regulations, the Federal government has a strong interest in 
promoting economic development, self-determination, and tribal 
sovereignty on tribal lands. 77 FR 72,440, 72,447-48 (December 5, 
2012). Section 5 of the Indian Reorganization Act, 25 U.S.C. 465, 
preempts State and local taxation of permanent improvements on trust 
land. Confederated Tribes of the Chehalis Reservation v. Thurston 
County, 724 F.3d 1153, 1157 (9th Cir. 2013) (citing Mescalero Apache 
Tribe v. Jones, 411 U.S. 145 (1973)). In addition, as explained in the 
preamble to the revised leasing regulations at 25 C.F.R. Part 162, 
Federal courts have applied a balancing test to determine whether State 
and local taxation of non-Indians on the reservation is preempted. 
White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980). The 
Bracker balancing test, which is conducted against a backdrop of 
``traditional notions of Indian self-government,'' requires a 
particularized examination of the relevant State, Federal, and tribal 
interests.
    While that discussion occurred in the context of federal lease 
approvals, the strong Federal and tribal interests against State and 
local taxation of improvements, leaseholds, and activities on land 
leased under the Department's leasing regulations apply equally to 
improvements, leaseholds, and activities on land leased pursuant to 
tribal leasing regulations approved under the HEARTH Act. Congress's 
overarching intent was to ``allow tribes to exercise greater control 
over their own land, support self-determination, and eliminate 
bureaucratic delays that stand in the way of homeownership and economic 
development in tribal communities.'' 158 Cong. Rec. H. 2682 (May 15, 
2012). The HEARTH Act was intended to afford tribes ``flexibility to 
adapt lease terms to suit [their] business and cultural needs'' and to 
``enable [tribes] to approve leases quickly and efficiently.'' Id. at 
5-6.
    Assessment of State and local taxes would obstruct these express 
Federal policies supporting tribal economic development and self-
determination, and also threaten substantial tribal interests in 
effective tribal government, economic self-sufficiency, and territorial 
autonomy. See Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 
2043 (2014) (Sotomayor, J., concurring) (determining that ``[a] key 
goal of the Federal Government is to render Tribes more self-
sufficient, and better positioned to fund their own sovereign 
functions, rather than relying on Federal funding''). The additional 
costs of State and local taxation have a chilling effect on potential 
lessees, as well as on a tribe that, as a result, might refrain from 
exercising its own sovereign right to impose a tribal tax to support 
its infrastructure needs. See id. at 2043-44 (finding that State and 
local taxes greatly discourage tribes from raising tax revenue from the 
same sources because the imposition of double taxation would impede 
tribal economic growth).
    Just like BIA's surface leasing regulations, tribal regulations 
under the HEARTH Act pervasively cover all aspects of surface leasing. 
See Guidance for the Approval of Tribal Leasing Regulations under the 
HEARTH Act, NPM-TRUS-29 (effective Jan. 16, 2013) (providing guidance 
on Federal review process to ensure consistency of proposed tribal 
regulations with Part 162 regulations and listing required tribal 
regulatory provisions). Furthermore, the Federal Government remains 
involved in the tribal land leasing process by approving the tribal 
leasing regulations in the first instance and providing technical 
assistance, upon request by a tribe, for the development of an 
environmental review process. The Secretary also retains authority to 
take any necessary actions to remedy violations of a lease or of the 
tribal regulations, including terminating the lease or rescinding 
approval of the tribal regulations and reassuming lease approval 
responsibilities. Moreover, the Secretary continues to review, approve, 
and monitor individual Indian land leases and other types of leases not 
covered under the tribal regulations according to the Part 162 
regulations. For these reasons, we have adopted the Bracker analysis 
from the preamble to the surface leasing regulations, 77 FR at 72,447-
48, in the context of the HEARTH Act.
    In sum, the Federal and tribal interests weigh heavily in favor of 
preemption of State and local taxes on lease-related activities and 
interests, regardless of whether the lease is governed by tribal 
leasing regulations or Part 162. We have published notice of each 
HEARTH Act approval in the Federal Register so that state and local 
taxation authorities and the public will be aware of the preemption of 
taxation of business activity under approved tribal leasing 
regulations.
    As of July 3, 2015, the following tribes have HEARTH Act approval 
of their tribal leasing regulations:

   February 1, 2013 HEARTH Act Approval of Federated Indians of 
        Graton Rancheria business leasing regulations

   March 14, 2013 HEARTH Act Approval of Pueblo of Sandia 
        business leasing regulations

   April 11, 2013 HEARTH Act Approval of Pokagon Band of 
        Potawatomi Indians residential leasing regulations

   November 10, 2013 HEARTH Act Approval of Ak-Chin Indian 
        Community business leasing regulations

   November 10, 2013 HEARTH Act Approval of Santa Rosa Band of 
        Cahuilla Indians business leasing regulations

   November 10, 2013 HEARTH Act Approval of Citizen Potawatomi 
        Nation business leasing regulations

   December 10, 2013 HEARTH Act Approval of Ewiiaapaayp Band of 
        Kumeyaay Indians business leasing regulations

   December 13, 2013 HEARTH Act Approval of Kaw Nation business 
        leasing regulations

   April 4, 2014 HEARTH Act Approval of Jamestown S'Klallam 
        Tribe business leasing regulations

   April 4, 2014 HEARTH Act Approval of Dry Creek Rancheria 
        Band of Pomo Indians business leasing regulations

   April 8, 2014 HEARTH Act Approval of Wichita and Affiliated 
        Tribes business leasing regulations

   April 8, 2014 HEARTH Act Approval of Mohegan Tribe of 
        Indians of Connecticut business leasing regulations

   September 23, 2014 HEARTH Act Approval of Agua Caliente Band 
        of Cahuilla Indians business leasing regulations

   January 8, 2015 HEARTH Act approval of Seminole Tribe of 
        Florida business and residential ordinances

   January 22, 2015 HEARTH Act Approval of Cowlitz Indian Tribe 
        business leasing regulations

   January 28, 2015 HEARTH Act Approval of Oneida Indian Nation 
        business leasing regulations

   February 4, 2015 HEARTH Act Approval of Ho-Chunk Nation 
        business, residential and agricultural leasing regulations

   June 3, 2015 HEARTH Act Approval of Absentee Shawnee Tribe 
        of Oklahoma business leasing regulations

   June 4, 2015 HEARTH Act Approval of Rincon Band of Luiseno 
        Mission Indians business leasing regulations

Trust Modernization in Rights-of-Way Regulations for Indian Lands
    The current regulations governing rights-of-way across Indian land 
were promulgated more than 40 years ago and last updated more than 30 
years ago. As such, they are ill-suited to the modern requirements for 
rights-of-way and the need for faster timelines and a more modern and 
transparent processes for BIA approval. The Department proposed changes 
to the current rights-of-way regulations about a year ago and we 
extended the comment period multiple times for a comment period that 
lasted more than five months. We are in the final stages of reviewing 
the comments submitted under the extended comment period noticed in the 
Federal Register on November 4. During the public comment period, we 
received approximately 175 comment submissions on the proposed rule and 
hosted four Tribal consultation sessions.
    This proposed rule would update 25 CFR 169, Rights-of-Way on Indian 
Land, to streamline the process for obtaining BIA approval and ensure 
seamless consistency with the recently promulgated leasing regulations. 
The proposed rule would increase the efficiency and transparency of the 
BIA approval process, increase flexibility in compensation and 
valuations, and support landowner decisions regarding the use of their 
own trust land.
    The proposed rule would change the BIA approval process for rights-
of-way to:

   Eliminate the requirement for applicants to obtain BIA 
        approval to access Indian land to survey it in preparation for 
        a right-of-way application;

   Specify the process for obtaining BIA approval of rights-of-
        way documents on Indian land;

   Impose time limits on BIA to act on submitted rights-of-way 
        documents;

   Establish that BIA must approve right-of-way documents 
        absent compelling justifications otherwise; and

   Clarify that BIA approvals of rights-of-way documents are 
        effective on the date of approval, even if an administrative 
        appeal is filed.

    The proposed rule would require BIA to issue a decision on a right-
of-way grant within 60 days of receiving an application and would 
require BIA to issue a decision on an amendment, assignment or mortgage 
of a right-of-way within 30 days of receiving an application. The 
proposed rule would also add an administrative process so that if BIA 
fails to meet these timelines, the applicant may elevate the matter to 
the BIA Regional Director, then the BIA Director.
    The proposed rule would provide a different approach to 
compensation depending on whether the land is tribal land or 
individually-owned Indian land.

   For rights-of-way on tribal land: Compensation may be in any 
        amount the tribe negotiates, or may be an alternative form of 
        rental, such as in-kind consideration, and BIA will not require 
        a valuation, as long as the tribe provides documentation that 
        the tribe has determined the compensation is in its best 
        interest. The BIA will not require a periodic review of the 
        adequacy of the compensation for rights-of-way on tribal land.

   For rights-of-way on individually-owned Indian land: 
        Compensation must be at least as high as fair market rental 
        unless the landowners execute a written waiver and BIA 
        determines the waiver to be in the landowners' best interest. 
        The BIA will also require a valuation, unless all the 
        landowners execute a written waiver or the grantee will 
        construct infrastructure improvements on, or serving, the 
        premises and BIA determines it is in the best interest of all 
        landowners. In addition, if BIA determines it is in the Indian 
        landowners' best interest, then the grant may provide for 
        alternative forms of rental or varying types of compensation. 
        No periodic review of the adequacy of rent or rental adjustment 
        is required if payment is a one-time lump sum, the right-of-way 
        duration is five years or less, the grant provides for 
        automatic adjustments, or BIA determines it is in the best 
        interest of the landowners not to require a review or automatic 
        adjustment.

    The proposed rule would make the following change to compliance 
with and enforcement of rights-of-way:

   Restrict BIA's right of entry to reasonable times and upon 
        reasonable notice, consistent with notice requirements under 
        applicable tribal law and right-of-way documents;

   Provide that, in the event of a violation, BIA will defer to 
        ongoing actions or proceedings provided for in the right-of-way 
        grant's negotiated remedies, as appropriate;

   Provide that BIA will provide a copy of the notice of 
        violation to the tribe for tribal land, and will provide 
        constructive notice to Indian landowners for individually owned 
        Indian land;

   Require BIA to consult with the tribe for tribal land or, 
        where feasible, with Indian landowners for individually owned 
        Indian land, to determine what action to take if the grantee 
        does not cure a violation within the requisite time period.

    The proposed rule would also make the following changes:

   Eliminate outdated requirements specific to different types 
        of rights-of-way;

   Clarify that a right-of-way grant on Indian land may include 
        provisions requiring the grantee to give a preference to 
        qualified tribal members, based on their political affiliation 
        with the tribe;

   Clarify which laws and taxes apply to rights-of-way approved 
        under 25 CFR 169;

   Add that a bond is required to be provided with the 
        application, rather than a deposit; and

   Clarify when a BIA grant of a new right-of-way on Indian 
        land is required or an existing right-of-way may be amended.

Conclusion
    The Obama Administration has developed a strong legacy of trust 
modernization in major efforts to correct historical mistakes in 
allotment and provide tribes significant land bases upon which they 
exercise sovereignty. It has also modernized land leasing by the BIA, 
and with the help of Congress, land leasing regulated by tribes. It has 
also eliminated dual taxation in these contexts, a major step for trust 
modernization. Finally, it has worked to update its right-of-way 
regulations. Still, much work remains to be done in the Executive 
branch, in reforming programs and services affecting Indian tribes, and 
in Congress, in enacting a Carcieri fix.
    We will continue to work with Members of this Committee, Congress, 
and our trust beneficiaries, the tribes, to clarify and fulfill our 
trust obligation, through our existing authorities to acquire land in 
trust on behalf of all tribes, and to discharge our responsibilities in 
accordance with the law and our regulations.
    This concludes my prepared statement. I will be happy to answer any 
questions the Committee may have.

    The Chairman. Vice Chairman Stensgar, please proceed.

  STATEMENT OF HON. ERNEST L. STENSGAR, VICE CHAIRMAN, COEUR 
                         d'ALENE TRIBE

    Mr. Stensgar. Thank you, Chairman Barrasso, Senator Tester, 
members of the Committee.
    I think Senator Crapo read the bill to you, and you will 
understand that. I want to state the tribe's position and the 
position of the Affiliated Tribes of Northwest Indians. I can 
speak on behalf of the Affiliated Tribes because I chair the 
trust reform committee. I have testimony from most of our 
tribal members regarding S. 383 and the companion House bill.
    Senators, we are tired of the paternalism of the United 
States Government in managing our affairs. We have day-to-day, 
most of the tribes have day-to-day operations. We manage 
million dollar businesses, we don't ask anybody's permission as 
we conduct those businesses. Yet if we want to deal with any 
timber management or agricultural management, we have to get 
permission from Interior to make management decisions.
    This bill would allow us to make those decisions without 
going to Interior, similar to the HEARTH Act. We see the tribes 
that have utilized the HEARTH Act and recognize the success 
that they have.
    Our feeling is that it would be more important for us to 
make decisions and faster if we could do away with the 
paternalistic views of the United States Interior Department.
    Part of this bill talks about OST. We recognize the 
management functions of OST in the finances of the trust 
dollars. But we are concerned with the duplication of going to 
the Bureau of Indian Affairs and the Office of Special trustee 
when we are looking at appraisals or any land transactions. We 
may have a venture in progress and all of a sudden we come to a 
dead stop while we untangled who is responsible, and whose 
signature we need to carry on that business. It is very 
difficult, to say the least.
    We look forward to OST's response, I think to the 
committee, the Appropriations Committee and to how the OST is 
going to operate in the future and how they are going to sunset 
their abilities in the future, or if they are not going to do 
it, how are they going to continue on with support of the 
tribes and Congress. Hopefully it comes forth very soon.
    Again, Senator Crapo read the bill, and I just want to 
stand for questions. Thank you for this time.
    [The prepared statement of Mr. Stensgar follows:]

  Prepared Statement of Hon. Ernest L. Stensgar, Vice-Chairman, Coeur 
                             d'Alene Tribe
    My name is Ernest Stensgar and I am testifying today in my capacity 
as Vice-Chairman of the Coeur d'Alene Tribe and on behalf of the 
Affiliated Tribes of Northwest Indians (ATNI) as Chair of ATNI's Trust 
Reform Committee. I am pleased to provide ATNI's and my Tribe's strong 
support for S. 383 and urge the Committee to advance this legislation 
without delay.
Background On ATNI and the Development of S. 383
    Founded in 1953, ATNI represents 57 tribal governments from Oregon, 
Idaho, Washington, southeast Alaska, northern California and Montana. 
For more than a decade, ATNI and its member tribes in the Pacific 
Northwest have been active proponents of forward-looking trust reform. 
ATNI's support and interest in these issues has been and is grounded in 
our commitment to maintaining the integrity of the United States' trust 
responsibility, the foundation of which is based upon the historical 
cession of millions of acres of ancestral lands by these tribes to the 
United States. It is also based on our recognition that in nearly every 
instance, Indian tribes have demonstrated that they are simply much 
better managers of their natural resources and affairs than is the 
Federal Government.
    Much of the text of S. 383 had its origins in S. 1439, which was 
introduced by then-Committee Chairman McCain and Vice-Chairman Dorgan 
in the 109th Congress. Following introduction, the Committee staff 
travelled across the United States to consult with Indian tribes on the 
legislation. The Committee then generated a revised version of S. 1439 
to reflect the tribes' input. Using the committees' revised draft of S. 
1439 as a template, beginning in 2011 ATNI focused on updating the two 
titles of that bill that remained relevant in light of the Cobell 
settlement and that had universal tribal support: the Indian Trust 
Asset Demonstration Project and Restructuring the Office of the Special 
Trustee (OST). Several individuals and tribal leaders who participated 
in developing the bill had previous careers working for the Bureau of 
Indian Affairs (BIA) and OST and were able to provide important 
practical input to guide our efforts.
    In the 113th Congress, this Committee heard testimony on a prior 
version of this legislation (S. 165) at a July 16, 2014, oversight 
hearing. The House Subcommittee on Indian, Insular, and Alaska Native 
Affairs held legislative hearings on the House bill in the 113th 
Congress (H.R. 409) and, in the current Congress, on H.R. 812 on April 
14, 2015.
    As introduced, S. 383 and H.R. 812 incorporate a number of changes 
to reflect the Obama Administration's feedback. Since the April 2015 
House hearing on H.R 812, we have had productive discussions with 
Department officials on further revisions to the bill to address 
outstanding issues. On June 28, 2015, the National Congress of American 
Indians convened a meeting at its 2015 mid-year conference with OST and 
tribal leaders and tribal representatives to discuss the future of OST 
and this legislation. That meeting has generated additional discussions 
with the Department on the bill, specifically title III.
    Based on these ongoing discussions, we are hopeful and optimistic 
that we will reach common ground with the Administration on this 
important legislation.
Overview of S. 383
    The substantive provisions of S. 383 are in titles II and III, 
which are discussed below:
Title II: Indian Trust Asset Demonstration Project
    Title II of S. 383 would establish a demonstration project to 
authorize Indian tribes, on a voluntary basis, to direct the management 
of their trust resources through negotiated agreements with the 
Secretary of the Interior (``Secretary''). To participate, tribes would 
submit to the Secretary a proposed Indian trust asset management plan 
that would describe, among other criteria, the trust assets that would 
be subject to the plan, the tribe's management objectives and 
priorities for assets subject to the plan, and a proposed allocation of 
funding for the proposed management activities.
    Unlike existing legal authorities that authorize tribes to contract 
or compact federal functions under federal standards, this 
demonstration project is unique in that it would provide participating 
tribes the freedom to determine how their resources will be managed 
under tribal standards.
    For example, an Indian tribe with timber resources that seeks to 
participate in the demonstration project could submit a plan that would 
direct that some of its forest land be managed in a manner to maximize 
fair market value on timber sales. The plan might also direct that 
other forested acreage not be harvested at all to encourage tourism or 
promote certain wildlife habitat. Currently, the BIA is the final 
decision-maker on these issues. If S. 383 is enacted into law, Indian 
tribes for the first time would have the flexibility to dictate these 
management standards under this demonstration project authority.
    S. 383 also includes a new section 204(e) that authorizes the 
Secretary to approve trust asset management plans that include 
provisions authorizing Indian tribes to carry out surface leasing or 
forest management activities without BIA approval under certain 
conditions. This concept is substantively identical to the HEARTH Act, 
which was signed into law in 2012. The Administration has been a strong 
supporter of the HEARTH Act concept of authorizing tribes to 
voluntarily carry out surface leasing activities without BIA approval, 
and that model has proven very successful.
    Empowering tribes to create value with their own resources 
epitomizes the federal policy of self-determination. In an era where 
federal appropriations for management of tribal natural resources are 
declining and represent a fraction of the actual need, this 
demonstration project is a practical tool that tribes will utilize 
immediately if they so choose.
Title III: Restructuring of the Office of the Special Trustee
    Congress created the OST in 1994 when it enacted the American 
Indian Trust Fund Management Reform Act. Congress recognized that OST 
would be a temporary entity to oversee certain reforms of how the 
Department of the Interior (DOI) managed and invested Indian trust 
funds. The 1994 Act provided that OST would be headed by the Special 
Trustee for American Indians, a position appointed by the President and 
confirmed by the Senate.
    Since the establishment of OST, management of Indian trust assets 
in DOI has been bifurcated: the BIA manages Indian trust land and non-
monetary trust resources, while OST manages Indian trust funds. 
Although both entities are within DOI, they are completely separate 
bureaucracies. Even though their work often overlaps, OST employees do 
not have authority over BIA employees, and vice versa. Prior to OST's 
creation, management of trust land and trust funds was under a single 
administrative umbrella.
    The major reforms that OST was charged with implementing were 
completed years ago. In a 2007 report, the General Accountability 
Office noted that ``OST estimates that almost all key reforms needed to 
develop an integrated trust management system and to provide improved 
trust services will be completed by November 2007.'' \1\ Those reforms, 
have undoubtedly improved the Secretary's management of Indian trust 
funds. We believe that those functions should continue. However, since 
OST was established, its role has expanded significantly to include 
activities far beyond managing Indian trust funds and implementing 
financial reforms, creating additional unintended bureaucracy for 
Indian Tribes.
---------------------------------------------------------------------------
    \1\ See The Office of the Special Trustee Has Implemented Several 
Key Trust Reforms Required by the 1994 Act, but Important Decisions 
about Its Future Remain, GAO-07-104 (Dec. 2006).
---------------------------------------------------------------------------
    For example, in 2002 OST assumed responsibility for appraising 
Indian trust land and trust property, even though this function has 
nothing to do with the management of Indian trust funds. In the report 
accompanying the FY 2010 Interior, Environment and Related Agencies 
spending bill, the House Appropriations Committee said the following 
about OST's involvement in the appraisal process:

        Indian Tribes routinely experience lengthy delays in obtaining 
        appraisals from the Department for transactions involving the 
        conveyance of Indian trust lands. The Bureau of Indian Affairs 
        is responsible for requesting appraisals and the Office of the 
        Special Trustee is responsible for procuring the appraisals. 
        Appraisals are required for Indian Tribes and individual 
        Indians to sell, acquire or exchange interests in trust land. 
        Delays in obtaining appraisals also delay these transactions, 
        which negatively impacts Tribal economies.

    It is easy to see how involving two competing bureaucracies with no 
authority over each other and little coordination leads to delays in 
effectuating routine transactions like appraisals. As this Committee is 
aware from its work on tribal energy development, delays in securing 
federal approvals and permits and--in this case--appraisals, often 
result in lost economic opportunities for Indian tribes and their 
members.
Report to Congress
    S. 165 in the 113th Congress would have terminated OST by a date 
certain, which appeared to be the Administration's primary concern with 
the bill. We have addressed this issue by taking a different approach 
in S. 383. Instead of mandating the termination of OST, Section 304 of 
S. 383 now directs the Secretary to prepare a report that (a) 
identifies functions that OST performs that relate to management of 
non-monetary trust resources; (b) describes any OST functions that will 
be transitioned to other bureaus or agencies within the Department, and 
(c) includes a transition plan and timetable for the termination of OST 
to occur not later than 2 years after the date of the report. In 
preparing the report, the Secretary would consult with Indian tribes 
and, once complete, submit it to the authorizing and appropriations 
committees in both chambers.
    S. 383 does not require the Secretary to implement the report or 
the transition plan. What actions might be taken as a result of the 
report, if any, would be questions for a future Administration or a 
future Congress. This report would serve several purposes, however. 
First, it would provide OST with an opportunity to educate Indian 
country about the work that it does. Second, it would provide Congress 
with information about possibly duplicative land management functions 
that OST performs that the BIA might also perform. Finally, it would be 
the first opportunity for Congress and Indian country to see what the 
Secretary's own plan to transition OST would look like.
    The 1994 Act that created OST contemplated that the Special 
Trustee, upon implementation of reforms, would certify the reforms have 
been implemented and wind down the office in accordance with Congress's 
recognition that the Special Trustee is a temporary position. These 
major reforms were implemented years ago but for whatever reason, no 
Special Trustee since has taken steps to transition the Office. We 
believe that the report required by Section 304 is an eminently 
reasonable way of advancing this dialogue with Indian country and the 
Congress.
    S. 383 also includes two new provisions that will provide all 
tribes, on a voluntary basis, with new management tools and 
flexibility:
Fiduciary Trust Officers
    Section 304(b) would authorize tribes to contract or compact the 
Fiduciary Trust Officer (FTO) positions within OST under the Indian 
Self-Determination and Education Assistance Act of 1975. OST created 
the FTO positions in 2003 to serve as a resource to BIA agency 
personnel. On some reservations, FTOs are either underutilized or not 
utilized at all. Allowing tribes the ability to contract and make 
better use of these positions under P.L. 93-638 would provide tribes 
with additional staffing capacity in an era of declining BIA personnel 
and budgets.
Appraisals and Valuations
    The other new provision is section 305, which addresses appraisals 
and valuations. Appraisals or valuations are required to complete most 
transactions involving trust land or trust resources. As mentioned 
above, both the BIA and OST have a role in the appraisal process and 
neither have authority over the other. As a result, the bureaucracy of 
having two separate entities involved in accomplishing a single task 
often leads to lengthy delays. Section 305(a) requires the Secretary, 
within 18 months of enactment and in consultation with Indian tribes, 
to ensure that appraisals and valuations of Indian trust property are 
administered by a single bureau, agency or other administrative entity 
within the Department.
    Furthermore, Sections 305(b) and (c) would direct the Secretary to 
establish minimum qualifications for persons to prepare appraisals and 
valuations of Indian trust property and publish those qualifications in 
the Federal Register. When an Indian tribe or Indian beneficiary 
submits an appraisal or valuation to the Secretary that satisfies those 
qualifications and the submission acknowledges the tribe's or 
beneficiary's intent to have the appraisal or valuation considered 
under this new subsection, the appraisal or valuation will not require 
any further Secretarial review or approval and will be considered final 
for purposes of effectuating the applicable transaction.
    Section 305 would also offer tribes and beneficiaries the option to 
hire their own qualified appraisers and complete transactions in far 
less time than would be required if the Department had to review and 
approve the appraisal or valuation. Not only will this expedite 
transactions involving trust assets, it will also relieve the 
Department of administrative burdens and will likely result in cost 
savings.
    ATNI and the Coeur d'Alene Tribe are grateful for the Committee 
holding today's hearing. We look forward to working with the Committee 
to advance S. 383 as quickly as possible.

    The Chairman. Thank you so much for your testimony. Your 
complete written testimony will be included in the formal 
record. We will get to questions in a few minutes.
    At this point I would like to call on Councilwoman 
Lintinger. Thank you very much for being here.

STATEMENT OF HON. BRENDA LINTINGER, COUNCILWOMAN, TUNICA-BILOXI 
 TRIBE OF LOUISIANA; SECRETARY, UNITED SOUTH AND EASTERN TRIBES

    Ms. Lintinger. Thank you. Can I have his extra minute and a 
half?
    [Laughter.]
    Ms. Lintinger. [Greeting in native tongue.] Greetings and 
good afternoon, Chairman Barrasso, Vice Chairman Tester and 
members of the Committee. Thank you for the opportunity to 
provide testimony regarding trust modernization and reform for 
Indian lands.
    My name is Brenda Lintinger, and I am the Secretary for the 
United South and Eastern Tribes, a non-profit inter-tribal 
organization representing 26 federally-recognized Indian tribes 
from Texas across to Florida and up through the State of Maine. 
Since 1997, I have served on the tribal council for the Tunica-
Biloxi people in Louisiana.
    USET is supportive of Senate Bill 383, the Indian Trust 
Asset Reform Act, especially with regard to its intent to 
improve the administration of trust assets in a manner 
consistent with tribal input. This legislation also provides an 
important opportunity for this Committee to begin to examine 
ways in which the unique trust relationship between tribal 
nations and the Federal Government may be modernized and 
strengthened in a much broader sense.
    The current trust model is based on two deeply flawed and 
paternalistic assumptions. First, that tribes are incompetent 
to handle their own affairs, and secondly, that tribal nations 
would eventually disappear. Indian Country has proven both of 
these assumptions wrong over and over again.
    The time is now to revisit our sacred nation-to-nation 
relationship in order to remove existing barriers which in turn 
will allow Indian Country to realize its greatest potential. 
Today is the 45th anniversary of President Nixon's special 
message to Congress on Indian affairs, recognizing the inherent 
sovereign authority of tribal nations and initiating a 
historic, successful era of tribal self-determination and self-
governance.
    After 45 years under this model, tribal nations across the 
United States seek to advance to the next level and are calling 
for a new paradigm in the trust relationship. Tribes and tribal 
organizations representing various regions and interests and 
perspectives from across Indian Country, including USET, have 
developed a set of five principles for modernizing and 
strengthening our nation-to-nation trust relationship.
    First, strengthen trust standards, adopt implementing laws 
and regulations. Over the course of our Nation's history, the 
Federal Government has issued numerous policy statements and 
secretarial orders recognizing the Federal trust responsibility 
and affirming its own obligation to tribes. The codification of 
these standards via legislation and regulation is necessary to 
ensure that these statements are meaningful and enforceable.
    Second, strengthen tribal sovereignty, empower each tribe 
to define its path. Thirdly, strengthen Federal management for 
trust assets still subject to Federal control.
    Fourth, strengthen Federal-tribal relations, one table with 
two chairs. The United States must commit to meeting tribes on 
equal footing and incorporating the guidance of tribes into 
policy decisions. Fifth, strengthen Federal funding and improve 
its efficiency as a pillar of the trust obligation.
    As this Committee well knows, the U.S. cannot fully deliver 
on its trust obligation to tribes without full funding for that 
obligation. Also, funding for tribal programs should not be 
subject to the annual appropriations process, but rather be 
provided via mandatory entitlement funding.
    In addition to these principles, USET would like to focus 
on the latter part of the title of this hearing, Reform for 
Indian Lands. The ability of tribes to have land taken into 
trust is central to both tribal sovereignty and the Federal 
trust responsibility. Every tribe has its own history of loss, 
and every federally-recognized tribe once held title to large 
amounts of land.
    In 1803, my tribe, the Tunica-Biloxi Tribe in Louisiana, 
held title to over 50 square miles of land, some of which was 
confirmed by the Louisiana Purchase. However, by 1980, the 
tribe controlled less than 200 acres. The Tunica-Biloxi Tribe 
and hundreds of other tribes across the country are utilizing 
their own resources to buy back their own land.
    We have forged positive relationships with the local non-
Indian communities that have grown up around us. Our tribal 
businesses generate revenue for governmental services and also 
provide benefits for our non-Indian neighbors. Our tribe 
employs nearly 1,500 people, the vast majority of them non-
Indian. After our gaming facility opened in 1995, the direct 
and indirect jobs created by our tribe caused the unemployment 
rate in Avoyelles Parish to drop from 15 to 6 percent.
    The Supreme Court's misguided decision on Carcieri v. 
Salazar has thrown Indian Country into chaos, effectively 
creating two classes of tribes, those who can take land into 
trust and those who cannot. For six years now we have been 
seeking legislative relief that returns us to the status quo by 
reaffirming way of finding the status of lands currently held 
in trust for tribes and confirming the Secretary's ability to 
take future lands into trust for all tribes.
    It is impossible to have any conversation about modernizing 
the trust responsibility without first ensuring that the 
Federal Government's obligations equally apply to all tribes, 
including the ability of all tribal nations to restore their 
tribal homelands as intended by the 1934 Indian Reorganization 
Act.
    In conclusion, the time has come for a comprehensive 
overhaul of our nation-to-nation trust relationship. As this 
Committee, this Congress and this Administration consider 
opportunities to provide these necessary changes, USET stands 
ready to provide guidance and partnership.
    I thank you and invite any questions the Committee may 
have. I did pretty good.
    [The prepared statement of Ms. Lintinger follows:]

   Prepared Statement of Hon. Brenda Lintinger, Councilwoman, Tunica-
 Biloxi Tribe of Louisiana; Secretary, United South and Eastern Tribes
    Chairman Barrasso, Vice Chairman Tester and members of the 
Committee, thank you for the opportunity to provide testimony regarding 
``Trust Modernization and Reform for Indian Lands.'' My name is Brenda 
Lintinger, and I am the Secretary for United South and Eastern Tribes 
(USET), a non-profit, inter-Tribal organization representing 26 
federally recognized Indian Tribes from Texas across to Florida and up 
to Maine. \1\ Since 1997, I have served on the Tribal Council for the 
Tunica-Biloxi Tribe.
---------------------------------------------------------------------------
    \1\ USET member Tribes include: Alabama-Coushatta Tribe of Texas 
(TX), Aroostook Band of Micmac Indians (ME), Catawba Indian Nation 
(SC), Cayuga Nation (NY), Chitimacha Tribe of Louisiana (LA), Coushatta 
Tribe of Louisiana (LA), Eastern Band of Cherokee Indians (NC), Houlton 
Band of Maliseet Indians (ME), Jena Band of Choctaw Indians (LA), 
Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag Tribe (MA), 
Miccosukee Tribe of Indians of Florida (FL), Mississippi Band of 
Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut (CT), 
Narragansett Indian Tribe (RI), Oneida Indian Nation (NY), 
Passamaquoddy Tribe at Indian Township (ME), Passamaquoddy Tribe at 
Pleasant Point (ME), Penobscot Indian Nation (ME), Poarch Band of Creek 
Indians (AL), Saint Regis Mohawk Tribe (NY), Seminole Tribe of Florida 
(FL), Seneca Nation of Indians (NY), Shinnecock Indian Nation (NY), 
Tunica-Biloxi Tribe of Louisiana (LA), and the Wampanoag Tribe of Gay 
Head (Aquinnah) (MA).
---------------------------------------------------------------------------
    USET is supportive of S. 383, the Indian Trust Asset Reform Act, 
especially with regard to its intent to improve the administration of 
trust assets in a manner consistent with Tribal input. However, we 
would defer to those most directly affected for a discussion of its 
specific provisions. This legislation also provides an important 
opportunity for this Committee to begin to examine ways in which the 
unique trust relationship between Tribal Nations and the Federal 
Government may be modernized and strengthened in a much broader sense. 
Reforming the Federal Government's management of Tribal trust assets is 
an integral part to modernizing the trust relationship. Additionally, 
USET urges the Committee to consider this hearing the first in a more 
comprehensive exploration of the current state of the Tribal-U.S. trust 
relationship and opportunities for systemic change.
    The current trust model is a remnant of an era and mindset that has 
no place in current Nation-to-Nation relations, as it is based on two 
deeply flawed and paternalistic assumptions: (1) that Tribes are 
incompetent to handle their own affairs, and (2) that Tribal Nations 
would eventually disappear. Indian Country has proven both of these 
assumptions wrong over and over again. The time is now to revisit and 
redefine our sacred Nation-to-Nation relationship in order to remove 
existing barriers that interfere with our ability to implement our 
inherent sovereign authority to its fullest extent which, in turn, will 
allow Indian Country to realize its great potential. Strong, vibrant 
Tribal Nations are a benefit to their surrounding communities and, 
indeed, make the United States a greater and stronger nation. Indian 
Country seeks to work with this Committee, the full Congress and the 
Executive branch to build a new framework for Tribal-Federal relations 
that provides Tribes with an equal say in the defining of that 
relationship, instead of it almost entirely being defined by the 
Federal Government.
    Today is the 45th anniversary of President Nixon's Special Message 
to Congress on Indian Affairs, recognizing the inherent sovereignty of 
Tribal Nations and initiating a historic, successful era of Tribal 
Self-Determination and Self-Governance. After 45 years under this 
model, Tribal Nations across the United States seek to advance to the 
next level and are calling for a new paradigm in the trust 
relationship. It is time to establish a trust model that reflects a 
true nation-to-nation partnership built upon diplomacy that will 
strengthen federal trust administration, enhance federal-tribal 
relations, and promote and protect tribal sovereignty, all with the 
goal of building and sustaining prosperous tribal communities.
    To that end, Tribes and Tribal Organizations representing various 
regions and interests and perspectives from across Indian Country, 
including USET, have come together to synthesize various trust 
modernization concepts and plans. Together, we have developed a set of 
five principles for modernizing and strengthening the trust 
relationship. The following principles identify many, if not most, of 
the challenges and principles relative to the nature and evolution of 
the federal-tribal trust relationship, and are designed to guide 
legislative and executive branches in their efforts to redefine this 
relationship.
Strengthen Trust Standards--Adopt Implementing Laws and Regulations
    Over the course of our nation's history with Tribes, the Federal 
Government has issued numerous policy statements and secretarial orders 
recognizing the federal trust responsibility and affirming its own 
obligation to Tribes. These include President Nixon's Special Message 
and Secretarial Orders from Secretaries of the Interior Bruce Babbitt 
and Sally Jewell, as well as a report from the Department of the 
Interior's Secretarial Commission on Indian Trust Administration and 
Reform. These policy statements serve to provide principles for the 
execution of the trust relationship, but do not carry the weight of law 
and may be abandoned by subsequent Administrations and Congresses.
    The codification of these standards is necessary to ensure that 
these statements are meaningful. Additionally, current and future 
Administrations should consult with Tribal Nations leading to the 
promulgation of enforceable regulations that uphold the trust 
responsibility. Similarly, Congress should seek to recognize this 
relationship via legislation.
Strengthen Tribal Sovereignty--Empower Each Tribe to Define its Path
    As we reexamine the relationship between two sovereigns, we must 
consider the sovereign status of Tribes more fully. Among Tribal 
Nations there is a wide range of sovereign authority, with some Tribes 
exercising substantial (although not total) sovereign powers over their 
lands and peoples, while others operate with an authority that is more 
like a municipal government, subject to substantial state control and 
dominance. Even for those Tribes that exercise the maximum amount of 
Tribal sovereignty, that sovereignty is limited compared to the 
authority of other sovereigns, such as the federal and state 
governments.
    True recognition of Tribal Nation sovereignty involves empowering 
each Tribal Nation to determine its own path. In USET's view, the 
exercise of sovereignty goes beyond self-governance contracting and 
compacting and beyond jurisdiction over one's own citizens. Tribes must 
have the opportunity to choose to assume complete control over their 
own affairs and assets. This includes the ability to use and re-program 
federal dollars in whatever manner the Tribe determines is best, 
exclusive authority to tax within reservation boundaries, and full 
legal jurisdictional authority over all individuals and entities within 
those boundaries.
Strengthen Federal Management--For Trust Assets Still Subject to 
        Federal Control
    Today, a number of federal agencies implement blanket policies that 
affect all Indian Tribes and Indian allottees. This ``one size fits 
all'' approach ignores the unique differences between the individual 
Tribes and the unique government-to-government relationship each Tribe 
has with the United States under its own treaties and other agreements. 
Unfortunately, many of these federal solutions never get changed or 
abolished, even when the Tribes and a federal Commission point out 
their shortcomings and recommend improvements.
    As we seek overall improvements in the management of trust assets, 
S. 383, the Indian Trust Asset Reform Act, is a significant advance. We 
note that the bill confirms that the most exacting common law fiduciary 
standards governing private trustees also govern the Federal Government 
when it manages Indian Trust Assets, and that those standards are not 
limited to the express terms of statutes and regulations. In addition, 
S. 383 promotes Tribal sovereignty by establishing the Indian Trust 
Asset Management Demonstration Project and authorizing the contracting 
and compacting of trust asset management under the Indian Self-
Determination and Education Assistance Act. This legislation is a 
positive step forward and part of what USET views as a movement toward 
the new trust paradigm.
Strengthen Federal-Tribal Relations--One Table with Two Chairs
    Any improvement to the trust relationship must involve greater 
authority and a full seat at the table for Tribal Nations. While Tribal 
opinions are expressed via federal advisory committees, consultation, 
and testimony, decisions continue to be made ``on our behalf'', whether 
with or without our input. The United States must commit to meeting 
Tribes on equal footing and to incorporating the guidance of Tribes 
into policy decisions. For example, the White House Council on Native 
American Affairs gathers cabinet secretaries and other high level 
officials regularly to consider issues of importance to Indian Country. 
This Council has greatly raised awareness across the Federal Government 
to the Federal Government's trust obligation to Native peoples and 
represents a true advance for Native rights. However, while the Council 
may hear presentations from Tribal leaders, it does not count any 
Tribal leaders as members. The Council cannot fully consider the needs 
and trials of Indian Country without the full participation of Tribes.
Strengthen Federal Funding and Improve Its Efficiency--A Pillar of the 
        Trust Responsibility
    As this Committee well knows, the U.S. cannot fully deliver on its 
trust responsibility to Tribes without full funding for that 
responsibility. And yet, federal Indian programs and their 
administering agencies remain consistently under-funded year after 
year. At a minimum, the trust responsibility should provide that the 
Federal government has a tribally enforceable obligation to ensure that 
reservations are habitable by today's standards, including that they 
have decent schools, hospitals, public safety and infrastructure and 
that Tribal governments are empowered to create an environment 
hospitable to economic development. Further, in accordance with a 
recognition that the trust responsibility is an obligation and not 
discretionary, funding for Tribal programs should not be subject to the 
annual appropriations process, but rather be provided via mandatory 
entitlement funding.
Reform for Indian Lands--Certainty and Equality through a Carcieri Fix
    In addition to the principles outlined above, USET would like to 
focus on the latter part of the title of this hearing, ``Reform for 
Indian Lands.'' The ability of Tribes, working with the Secretary, to 
have land taken into trust is central to both Tribal sovereignty and 
the Federal trust responsibility. It is the foundation of Tribal 
efforts to strengthen our self-determination and to ensure that we 
protect our cultural identities.
    Every Tribe has its own history of loss, and every federally-
recognized Tribe once held title to large amounts of land that has been 
stolen from them. There are numerous stories across the country about 
the theft of Indian land and resources, and even of the killing of our 
people. In 1803, my Tribe, the Tunica Biloxi Tribe, held title to over 
50 square miles of land, some of which was confirmed by the Louisiana 
Purchase. However, despite no approval for land transfer by the U.S. 
Congress in the intervening years, by 1980 the Tribe controlled less 
than 200 acres of land. These lands were stolen in hundreds of small 
ways, but one example stands out. In 1841, Chief Melacon confronted a 
local land owner whose work crew was moving his fence posts onto Tunica 
land. As the Chief began removing the fence posts the land owner shot 
Chief Melacon in the head in view of several other tribal citizens and 
non-Indians. The killer never stood trial, as the common view at the 
time among non-Indians in the area was that the Indians were savages 
who did not farm their land ``properly'' and therefore had no right to 
keep it.
    Against this history of injustice, the Tunica-Biloxi Tribe, and 
hundreds of other Tribes across the country, are utilizing their own 
resources to purchase land that has been stolen from them. But, we do 
not wish to continue the cycle of mistrust, envy and hard feelings. 
Instead, we have forged new, positive relationships with the local non-
Indian communities that have grown up around us. Utilizing our status 
as a sovereign nation, the Tunica-Biloxi Tribe has created several 
economic development enterprises. These businesses generate revenue for 
the tribal government to protect and enhance the welfare and culture of 
the tribal citizens. However, they also provide major benefits for our 
non-Indian neighbors and revenues for state and local governments in 
the region.
    While the population of Marksville, Louisiana has not changed much 
in 20 years, the Tunica-Biloxi Tribe, through its several economic 
development enterprises, employs nearly 1,500 people--the vast majority 
of them non-Indian. After our gaming facility opened in 1995, the 
direct and indirect jobs created by the Tribe caused the unemployment 
rate in Avoyelles Parish to drop to about 6 percent. Home prices 
increased, new roads were paved, schools improved, Parish government 
services expanded, and hundreds of new businesses sprung up in 
Marksville and across the parish. Of course, our tribal citizens who 
had previously suffered greatly from economic hardship were helped as 
well, but the full story is one of renewal for the entire region and 
all of our citizens and neighbors.
    Today, the Tunica-Biloxi Tribe, and hundreds of other Tribal 
governments across the country are working hard to diversify our 
economies and find new enterprises that can provide the revenues we 
need to support our communities and protect and enhance our unique 
cultures. However, the Supreme Court's misguided decision in Carcieri 
v. Salazar has thrown Indian Country into chaos, effectively creating 
two classes of Tribes: those who can take land into trust and those who 
cannot. The legal ambiguities resulting from Carcieri have further 
delayed the already severely backlogged land-into-trust process, and 
have given birth to other harmful case law challenging and 
destabilizing land that has been held in trust for decades. Because of 
Carcieri and resulting legal challenges, Tribes are finding it 
increasingly difficult to secure financing and attract investors for 
economic development projects as questions are raised about the status 
of lands on which these projects would be located. For six years now, 
we have been seeking legislative relief that reaffirms the status of 
lands currently held in trust for Tribes and confirms the Secretary's 
ability to take future lands into trust. In doing so, this legislative 
fix would return us to a status quo of 75 years of prior practice, It 
is impossible to have any conversation about modernizing the trust 
responsibility without first ensuring that the Federal Government's 
obligations apply equally to all Tribes. This includes the ability of 
ALL Tribal Nations to restore their Tribal homelands as intended by the 
1934 Indian Reorganization Act (IRA).
Conclusion
    The current trust model fails to recognize the inherent sovereignty 
and sophisticated governance of modern Tribal Nations. The time has 
come for a comprehensive overhaul of the trust relationship, one in 
which Tribal sovereignty is fully acknowledged, respected, celebrated, 
protected, and promoted. As this Committee, this Congress, and this 
Administration consider opportunities to provide necessary changes to 
the sacred relationship between Tribal Nations and the U.S. government, 
USET stands ready to provide guidance and partnership. We appreciate 
the Committee's interest in this important topic, are grateful for the 
opportunity to testify, and invite any questions the Committee may 
have.

    The Chairman. You did, thank you so much.
    [Laughter.]
    The Chairman. Let the Committee record reflect the fact 
that you did pretty good. Thank you.
    I would like to go to questions now. I appreciate the 
witnesses' being here today. I would like to ask Senator 
Lankford to start.

               STATEMENT OF HON. JAMES LANKFORD, 
                   U.S. SENATOR FROM OKLAHOMA

    Senator Lankford. Thank you. I apologize for my voice. At 
this point, I feel better than I sound. I apologize for that.
    It is good to see all of you. This is obviously an 
extremely important topic for us long term to be able to deal 
with. It does require a legislative fix.
    Mr. Washburn, let me ask you a couple of questions, and one 
is because I can talk okie-okie to you and go from there. The 
other one is just, there are so many different issues that are 
unique in Oklahoma that are just a dynamic of being in a non-
reservation area. Taking land into trust is a very common 
practice in Oklahoma.
    Let me ask, is there a map established that BIA has that 
clearly delineates all land that has been taken into trust? 
That is, a detailed map that we could have access to?
    Mr. Washburn. We can provide that for you. You bet.
    Senator Lankford. That would be very helpful not only for 
the State, but for the Nation as well, to be able to get a 
detail. Because in many areas, it is a quilt. And so it would 
be clear to be able to see for us as well in that process.
    The other one is, taking Indian land into trust in areas 
that is typically not historically tribal land in the past, how 
do you manage that relationship with counties, cities and 
States, when it is an area that is not a historic tribal area 
but yet is being requested to be taken into trust? So walk me 
through the process of that.
    Mr. Washburn. Well, let me just say this. We very rarely 
take land into trust for a tribe if it is not a historic tribal 
area. That is a very unusual situation. But when we take land 
into trust anywhere, we very carefully manage the relationship 
with State and local governments, the county, the city and the 
State. We specifically ask for their views. The whole public 
can comment.
    With regard to State and local governments, we send notice 
by certified mail and specifically ask them to weigh in.
    Senator Lankford. What is the length of time of that 
comment period? Is that weeks, is that years?
    Mr. Washburn. No, it's usually 30 days. But when they ask 
for more time, we always give it. We want to have their views. 
That is the bottom line, we want their views. So we tend to be 
very willing to extend the time of the comment period if they 
need it, and sometimes they need it. That is not an uncommon 
request.
    We very carefully consider their views. And I will tell 
you, if the city and the county and the State or any of those 
are upset about it, it takes a lot longer to get that land into 
trust.
    Senator Lankford. Define for me a lot longer.
    Mr. Washburn. Well, those are the applications that tend to 
languish for years and maybe are never approved. If we get a 
good agreement among all those groups, with the tribe, those 
are the applications that actually sail through the process and 
get through the process quickly. It is a really complicated 
process. But if there is good agreement and service agreements 
in place and that sort of thing, that is where we get quick 
land into trust decisions.
    We have done more than 1,900 of these since the beginning 
of the Obama Administration. The ones that go well are when all 
the issues are worked out between the parties and the people 
that might object. It is a relatively small number where there 
is actually a strong objection.
    Senator Lankford. On those rare occasions where land is not 
historic land, tribal land, how does that process work? Is it 
different?
    Mr. Washburn. Well, it is different. We have different 
systems in place. It is slightly different. Again, it is really 
unusual for us to take land into trust outside a tribe's 
aboriginal area. But many of the aspects of the system are the 
same.
    I have a step-by-step process in my testimony which is, 
sorry, it is dense, it is 13 pages, single spaced. But we 
explain a lot of that in there pretty carefully.
    We have been beat up by this Committee particularly over 
the years because our oil and gas leasing is like 43 steps to 
get a lease done. Here we have at least 16 steps for land into 
trust and it is not enough steps for some people. Some people 
want more red tape, and some people want less red tape.
    Senator Lankford. Put me on the less side. A clear, 
delineated processes always help everyone.
    You mentioned the oil and gas side of things. Let me bring 
it up. Osage Nation in Oklahoma is a very unique dynamic in 
that they own all the mineral rights for the nation. In a 
situation like that, should the Osage Nation be entrusted to be 
able to take care of their mineral rights? At what point can 
they make the decision?
    I know you know this issue well. I am not going to try to 
work you into a corner on this. But this is becoming more 
complicated as now the court has now set it aside, and said 
let's delay this process, let's talk about it even more. Where 
does this go from here and at what point can the nation 
actually have some self-determination for its mineral rights as 
well?
    Mr. Washburn. Thank you, Senator. One of the issues with 
regard to Osage is, Osage is unique because there is special 
congressional legislation that says Osage shall be unique and 
it will be handled differently than everywhere else in the 
Country. So we just finished, you know this, we had engaged in 
a rulemaking at Osage, a negotiated rulemaking where we tried 
to bring the relevant parties together, and have come up with a 
final rule that was about to take place. Then we were sued, and 
we agreed to hold off on implementing that rule temporarily, 
while the judge has time to determine whether there is a real 
problem here.
    But there are many different interests involved. Our big 
interest is that the taxpayers paid $320 million to the Osage 
Nation fairly recently for breach of trust. Our effort is to 
ensure that we meet our trust responsibility to the Osage 
Nation so the taxpayers don't have to pay hundreds of millions 
of dollars again soon. So that is our number one goal.
    But we need to manage other interests in that process.
    Senator Lankford. You need oversight, you need a new piece 
of legislation to deal with that? What is better to deal with 
the Osage issue? This is a piece of legislation that started 
all this, do you need that to be able to fix it? What is 
better?
    Mr. Washburn. Well, we do want to talk with you about that. 
Let me not answer off the cuff, because this is an important 
matter.
    Senator Lankford. That is a reasonable conversation. Thank 
you. I yield back.
    The Chairman. Thank you, Senator Lankford. Senator Franken?

                 STATEMENT OF HON. AL FRANKEN, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Franken. Thank you, Mr. Chairman. Thank you, Vice 
Chairman Tester, for holding this hearing, and thank you to our 
witnesses for your testimony.
    The ability of the Department of the Interior to place land 
into trust for Indian Tribes is essential to sovereignty. 
Assistant Secretary Washburn described in his testimony the 
many benefits of trust acquisitions, including the ability to 
create housing, promote economic opportunities and protect 
tribal culture. But the Supreme Court rolled back tribal 
sovereignty in its 2009 Carcieri decision. That decision in 
effect created two castes of tribes, those under Federal 
jurisdiction before 1934 and those recognized after 1934.
    This is unfair and to me it is contrary to the purpose of 
the Indian Reorganization Act, which was supposed to reverse 
decades of removal and allotment by allowing the partial 
recovery of lands for Indian tribes.
    That is why I have co-sponsored legislation to fix the 
Carcieri decision in every Congress since I came to the Senate. 
I look forward to this Committee marking up Vice Chairman 
Tester's clean Carcieri fix and I hope we can finally get to 
this important legislation and get it enacted.
    Assistant Secretary Washburn, it is always good to see you. 
The Carcieri decision created a lot of uncertainty for tribes 
petitioning to place lands into trust. This is a problem for 
all tribes, regardless of which they were federally recognized, 
because it further complicates and delays the trust acquisition 
process.
    Can you briefly summarize the effect of the Carcieri 
decision on BIA's trust acquisition process? How is the BIA now 
determining whether land can be taken into trust, given the 
court's decision?
    Mr. Washburn. Thank you, Senator Franken, and thank you for 
your leadership on this issue.
    The BIA and the Solicitor's office have to do a tribe by 
tribe analysis to determine whether that tribe was under 
Federal jurisdiction for the purposes of the Carcieri decision 
as of 1934. Overall, what that means is that it just slows us 
down tremendously. It adds a lot of burden and makes it a lot 
less efficient to engage in the fee to trust process.
    Some tribes, it is not a problem for them, frankly, it is 
not a problem directly for them. But what happens is, we have 
all these resources working for other tribes to do the Carcieri 
analysis. So those are people who are not working for the 
tribes that need land into trust. So it has been a horrible 
burden.
    Senator Franken. So it is fair to say that if all 
federally-recognized tribes were eligible, that land taken in 
trust, that would simplify the trust acquisition process for 
both BIA and for the tribes?
    Mr. Washburn. Absolutely. And it would be more just, as you 
noted.
    Senator Franken. Councilwoman Lintinger, the Tunica-Biloxi, 
has a long history, but it wasn't federally recognized until 
1981. Now, the Supreme Court has drawn a line between the 
tribes under Federal jurisdiction by 1934 and those not. What 
did that decision mean for your tribe and other tribes in your 
region?
    Ms. Lintinger. Well, it certainly obviously reversed eight 
decades, 80 years of interpretation and practice that tribes 
relied upon. It forces us, as the Assistant Secretary 
mentioned, to spend resources proving, going through this 
process again that we don't have an issue. It affects our 
business operations. It increases the risk, as the status of 
land is an integral part of any business proposal, proposition, 
when we seek financing. As risk goes up, the cost of capital 
goes up.
    So at a time, being within the United States, we experience 
economic downturns just as other areas of the country do. So as 
we are facing these challenges and we are trying to diversify, 
going into other industries, it creates a burden and higher 
costs. Resources that we could be spending on social service 
programs as part of our self-governance and self-determination 
rights and our inherent sovereign authority.
    So it is a waste of time, money, resources, it is just not 
efficient. It is not effective.
    Senator Franken. I am out of time, but it would be very 
fair to say that a Carcieri fix would help economic development 
in Indian Country?
    Ms. Lintinger. Exactly, it would.
    Senator Franken. Does everyone agree?
    Mr. Washburn. Yes, sir.
    Ms. Lintinger. Absolutely.
    Senator Franken. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Franken. Senator Crapo?
    Senator Crapo. Thank you very much, Mr. Chairman.
    I will start here on this side of the table. Councilwoman 
Lintinger, it is good to see you back here.
    Ms. Lintinger. Thank you.
    Senator Crapo. You are a strong and consistent advocate for 
tribal self-governance and sovereignty.
    I just have one question. I actually know the answer, but I 
want to give you a chance to say this on the record. That is 
whether the Tunica-Biloxi tribes are in support of Senate Bill 
383, the legislation I referenced earlier that we have been 
working with the Coeur D'Alene Tribe on?
    Ms. Lintinger. Yes, we are in support, sir.
    Senator Crapo. I thank you for that very much. I do 
appreciate it. Like I say, it is good to see you here so 
consistently on the Hill fighting so hard for these critical 
issues.
    Ernie, my good friend, I would like to ask you a couple of 
quick questions. With regard to Title II of Senate Bill 383, 
which would establish the trust asset demonstration project to 
allow tribes to direct the management of their trust resources, 
can you give me an example of how this might help the Coeur 
D'Alene Tribe?
    Mr. Stensgar. Senator Crapo, certainly. In our forest 
management, for instance, we have a number of stands that we 
would like to set aside for spiritual or cultural reasons. 
Currently the Bureau has a cut date that they make us adhere 
to. So it is very difficult to do that.
    Other issues are if we want to make a management decision 
and not cut, maybe just manage the dead and dying and wait for 
the market to raise, I think in the last several years the 
timber market has been down. We prefer not to harvest during 
those times, and wait for the prices to go up. But we are 
unable to do that.
    Under 383, it would allow us to do that without going 
through to Interior and getting permission to make those 
management decisions.
    Senator Crapo. I understand that other tribes face the 
reverse type of problem sometimes, if they want to allow for a 
cut, then they are not able to get that kind of a management 
decision made?
    Mr. Stensgar. Certainly.
    Senator Crapo. One other quick question, Mr. Stensgar, and 
that is, Senate Bill 383 contains new provisions relating to 
the appraisals of trust property. What kind of problems has 
your tribe or other tribes that you are aware of had with 
getting appraisals that make these provisions necessary?
    Mr. Stensgar. Obviously there is, working with the Bureau 
of Indian Affairs historically to do any type of cutting and 
getting appraisals has been the way we have been used to doing 
it. OST has assumed parts of that and we don't quite understand 
how that works any more. But we go to the Bureau of Indian 
Affairs and they say, we can't handle those issues, this part 
of it. We have to go to OST. So we go to OST and maybe we get 
an officer over there that will send us back to the Bureau. 
Until we get it ironed out, it is very difficult to carry out 
any management functions or any business.
    Senator Crapo. I hope we will be able to remove that red 
tape and allow for proper management and efficient management 
decisions.
    Speaking of the OST, Mr. Washburn, are there any of the 
major reforms to the management of the Indian trust funds that 
remain for the OST to implement?
    Mr. Washburn. Well, the Office of Special Trustee has taken 
over very important functions from the BIA. They have done a 
very good job of managing those functions. So they actually 
have an ongoing responsibility that is really important. And 
they do it well, honestly. They have a very professional staff. 
They have, frankly, been managing it well.
    From our perspective, there is nothing broken here that 
needs to be fixed. So we are, I guess cautious, about efforts 
to sunset OST or claims that that is needed.
    Senator Crapo. There is sort of a joke that sometimes goes 
around that there is never a temporary government project at 
the Federal level. Wasn't the OST intended to be a non-
permanent or temporary function to manage certain trust fund 
reforms?
    Mr. Washburn. Well, managing trust funds isn't a permanent 
function, and they are doing a great job of it. And I can use 
all the help I can get. BIA has been all things to all people 
for far too long. First, the Indian Health Service was taken 
away from the BIA. That was probably an improvement, because 
that allows them to focus narrowly on a very important 
function, health care.
    And frankly, this fiduciary management of monies is a very 
important function. It is good to have that in the hands of 
experts.
    I heard the statement that said we have delay, 
miscommunication and inefficiency. But we have that internally 
within the BIA sometimes, too. Government bureaucracy is hard. 
Jamming these two agencies together is not the magical solution 
to all government inefficiency or miscommunication. 
Communication is one of the hardest things we do.
    So we are comfortable with the situation the way it is. I 
am grateful to have the support. We work very closely with the 
Office of Special Trustee. Again, they are wonderful staff over 
there and they work really closely with the BIA on myriad 
subjects, including appraisals. Somehow, we have managed to 
take over 900,000 acres of land into trust in about two years. 
That has required a lot of appraisals. So arguably, that 
specific function is working fabulously well, otherwise we 
wouldn't have been able to accomplish that.
    Senator Crapo. My time is expired, so I can't go into it 
with you any further. We can agree that there is a lot of 
government red tape that needs to be fixed here. With regard to 
the specifics of this, I guess I will have to explore that on 
my own time later.
    Thank you, Mr. Chairman, for this time.
    The Chairman. Thank you, Senator Crapo.
    Senator Udall?
    Senator Udall. Thank you, Mr. Chairman.
    The Navajo Nation, our largest tribe in the Nation, is 
represented here today. We have a newly-elected president, 
Russell Begaye, who is here with us in the audience. Russell, 
good to see you here. I know your vice president, Jonathon Nez, 
is also here.
    One of the things that is relevant to this discussion that 
I thought I would talk just a little bit about, the Navajo 
Nation, President Begaye was elected on a platform where he 
talked about bringing young Navajo professionals all around the 
Country back to the Navajo Nation to work for the Navajo 
people.
    It seems to me when we talk about self-determination, that 
is the kind of thing that can make self-determination work much 
better, to have that kind of expertise and the responsibility, 
Secretary Washburn, that you carry out can be taken over by a 
tribe in that kind of situation. Would you agree with that?
    Mr. Washburn. Absolutely.
    Senator Udall. Let me focus on one area, here. As you know, 
Secretary Washburn, in the 1960s, President Lyndon Johnson 
established the National Council of Indian Opportunity to 
reevaluate the trust responsibilities of the Federal 
Government. It included the Vice President, Secretaries from 
relevant departments along with eight tribal leaders. This 
created an opportunity to sit down, roll up sleeves and work on 
improving government-to-government relationships. Arguably, it 
kick-started the self-determination era.
    Do you think it is time to reconvene the Council to once 
again reevaluate what is working and what needs improvement?
    Mr. Washburn. Senator Udall, let me just say this. We have 
had a number of commissions and councils, blue ribbon 
commissions that have studied issues in Indian Country. 
Frankly, each time we have one of those, there is useful 
information that comes out of it. Honestly, sometimes that is 
what it takes to get momentum to make reforms.
    So at any given time, we usually have several of those 
running. But the National Council for Indian Opportunity was 
effective and something like that might well be useful.
    Senator Udall. Over the years, we have legislated to 
improve Indian self-determination in particular areas of need, 
whether it be energy, health care, labor. I know on health 
care, you talked in your statement about how the HEARTH Act had 
allowed you to do certain things.
    Do you think it is time for a comprehensive approach, or do 
you believe each issue is unique and that the piecemeal 
approach is the better way to proceed?
    Mr. Washburn. Well, it is a great question. Let me just 
say, we have proven that tribal self-determination and self-
governance is the answer. We have proven it in a bunch of 
different subject matter areas. To a great degree, and I think 
I have probably said this here at this Committee before, Rube 
Goldberg himself couldn't have come up with a more complicated 
system to ensure there is tribal self-determination in myriad 
different areas.
    So we would have to talk about the specifics. But 
recognizing that this is a great approach is something that we 
should do. We should look for ways to recognize tribal self-
governance and tribal self-determination in all areas.
    Senator Udall. Now, there are proposals floating around to 
establish an Under Secretary for Indian Affairs, with the 
understanding that this person would carry out any activity 
relating to Indian trust asset management of the Bureau of 
Indian Affairs and the Office of Special Trustee, essentially 
consolidating your current position with the Special Trustee. 
What is the Administration's position? What are your thoughts? 
Do you think this is a good approach? Do you think that both 
responsibilities should be consolidated?
    Mr. Washburn. It would be self-serving for me to say yes, 
it should be consolidated. Honestly, we have been worrying 
about turning the Titanic in essence, and that seems like a 
moving the deck chairs around kind of issue.
    We do our job. The whole United States Government has the 
trust responsibility to Indian tribes, let me first say that. 
So we are strongly against any inclination to sort of hang it 
on one individual like myself. Because I need help. And I need 
every other Cabinet Secretary and Assistant Secretary and 
Deputy Secretary around the government to realize they too have 
a trust responsibility.
    So we are cautious about this whole approach, anything that 
would sort of magnify it on one person. Because it is the whole 
Federal Government's responsibility, and your responsibility 
and the Chairman's responsibility and the Vice Chairman's 
responsibility. We all have this responsibility.
    Senator Udall. I couldn't agree with you more. I think it 
is very important that all the Federal agencies, the 
responsibility that they have, that they understand and fulfill 
it and take the time to consult, like you talked about, which 
is the essence of the government-to-government relationship. So 
that is tremendously important.
    That is why I think the National Council on Indian 
Opportunity was good. The Cabinet was there at the table all 
the time with tribal leaders. They were an input from tribes 
all across the Nation in terms of wanting to see reform. If you 
have Cabinet members every couple of weeks sitting down and 
listening to that then they think of things that they can do in 
their respective departments.
    So thank you very much, the witnesses have been very good. 
I am sorry I didn't get to ask questions of the other two 
witnesses.
    Thank you.
    The Chairman. Thank you, Senator Udall. Senator Moran.

                STATEMENT OF HON. JERRY MORAN, 
                    U.S. SENATOR FROM KANSAS

    Senator Moran. Mr. Chairman, thank you very much. Thanks 
for hosting this hearing.
    Let me turn to the Councilwoman, since you did so well.
    [Laughter.]
    Senator Moran. You seem to be perhaps the most forceful, at 
least you raised your voice when you talked about it is time 
for a Carcieri fix. Senator Tester and I have sponsored 
legislation for what has been described as the full Carcieri 
fix. But it hasn't happened.
    As I have gotten involved in this issue, there have been 
other suggestions from tribal leaders who visit with me and 
various tribal organizations who remain committed to a clean 
fix. Others have suggested different avenues. My question is, 
the direction that you would suggest that we go, I think it is 
the Poarch Creek Tribe that has visited with me about what I 
initially called a Carcieri light fix, which is better 
described as land reaffirmation.
    Do you have suggestions, should we stay committed at this 
point in time to a clean Carcieri fix, or is there something in 
the interim, while we work to get a clean Carcieri fix that we 
ought to be pursuing that would be beneficial, useful today? 
And more obtainable.
    Ms. Lintinger. I will say that our goal is a clean Carcieri 
fix. How that gets accomplished, whether it is in stages or in 
one fell swoop is in your lap, basically. Certainly we would 
like it all done at once. It is draining valuable resources, it 
is forcing us to fight battles unnecessarily. It is calling 
into question numerous aspects, besides business, in the court 
systems, our tribal court systems. It is problematic.
    My great-grandfather, Chief Eli Barvary, visited the United 
States in the 1930s. He didn't know he had to have an 
appointment. He was coming here for help. But the processes, 
the system, didn't offer him help, didn't provide help to him 
and his people.
    And here I sit today, six years this decision has been 
hanging over us. It is costing us every day. And it started on 
a housing issue for elderly people. Why should there be so much 
trouble fixing something so obvious?
    So I would encourage you to seek out a clean Carcieri fix. 
If it comes in stages, well, we have to go that route, we don't 
have a choice. The decision, the voting power is in your hands.
    But this Committee is our voice. We see you as our voice, 
as the Senate Committee on Indian Affairs. Someone has to 
champion this cause. That is why we come to you.
    So that would be my answer. I hope it is helpful.
    Senator Moran. I used to worry about how to pronounce what 
I call Carcieri. You said it differently than I did, but I no 
longer worry about it, because almost no one says it the same 
way.
    Ms. Lintinger. Well, the Narragansett's, who had this issue 
obviously developed in their lands, pronounce it Carcieri. So I 
yield to them.
    Senator Moran. I will work at improving my pronunciation.
    Let me ask the Under Secretary the amount of litigation. 
Are there litigations pending now as a result of the decision 
that was just mentioned by the Councilwoman?
    Mr. Washburn. There are, Senator Moran, both administrative 
litigation before the Department and litigation in Federal 
courts around the country. There is a lot of litigation 
pending.
    Senator Moran. Can you tell us what you think, is there 
risk to tribal lands today as a result of that litigation?
    Mr. Washburn. Well, ultimately we hope not. But there is 
great uncertainty. Litigation itself creates uncertainty. It is 
a small, very small minority of land into trust decisions that 
have significant opposition. But this issue can increase the 
uncertainty, especially around those controversial land into 
trust decisions. So it is definitely a problem for tribes.
    Senator Moran. Do you have any advice to us in regard to 
this issue of a clean fix? Is there anything in the interim 
that would be of value to you?
    Mr. Washburn. We have been motoring forward. We have taken 
more than 1,900 applications of land into trust since President 
Obama has been President. A little bit of that was prior to the 
Carcieri decision. Carcieri was the Governor of Rhode Island, 
and I am not a fan, because he brought this case. But he 
probably deserves to have his name pronounced the way he 
pronounces it, and he pronounces it Carcieri.
    But we really would love to see a clean Carcieri fix. We 
think that that is within the power of this Congress. We hope 
that perhaps, in Congress, the majority has changed since this 
issue has been pending and we kind of hope that the shakeup, if 
it had any effects, that this might be something that might be 
possible. We would continue to urge Congress to pass a clean 
Carcieri fix.
    Senator Moran. I appreciate that urging. To our witnesses 
and the audience and to my co-sponsor, Senator Tester, I remain 
committed to pursuing a clean fix.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Moran.
    Senator Tester.
    Senator Tester. Thank you, Mr. Chairman. I want to thank 
Senator Moran for his leadership on a clean Carcieri fix. I 
look forward to working with him to get this thing across the 
finish line. I think it is important for Indian Country. I 
think it may be the most important issue for Indian Country, in 
fact.
    Kevin, I have the distinct honor and privilege of farming 
land that my grandfather homesteaded when he came out in 1910. 
He farmed it until the 1940s when my folks took over, then they 
turned it over to us in the 1970s. Before that point in time, 
it was pretty much Indians and buffalo.
    What constitutes an historic tribal area? It seems to me 
that unless you are just counting, in Montana, the last hundred 
years, in other States it is going to be a little longer, what 
constitutes an historic tribal area?
    Mr. Washburn. That is a tough question. One of the things, 
tribes know themselves, and they sometimes argue about whose 
historical area that is.
    Senator Tester. Oh, so it is a scrap between the tribes?
    Mr. Washburn. Sometimes, yes. Sometimes that is true.
    Senator Tester. It seems to me like unless you are just 
counting the last 100 years or 150 or 200, 250, wherever you 
are, it is all historic tribal area.
    Mr. Washburn. Vice Chairman, I have a bumper sticker that 
says Indian Country, and it has a picture of North America and 
South America next to it. I kind of view that as, it is all 
Indian Country at some point.
    Senator Tester. As far as taking land into trust, are these 
lands already owned by tribal governments?
    Mr. Washburn. Yes. That is why tribes find this so 
frustrating. We took it from them in the first place, then they 
reacquired it. They repurchased it. In many cases it was stolen 
from them. They had to repurchase it. Then we put them through 
the wringer before we actually take the land into trust.
    They never got a veto over whether a county or city was 
created in that area, but now they see the county or city 
wanting to have a veto power over them taking land into trust.
    Senator Tester. Right. And we continue to hear, at least I 
continue to hear in areas where land is being taken into trust, 
pushback from the counties, taking it out of their tax base. 
And I see that. But I also think there is some pretty good 
benefit in many, if not all, of these projects.
    My question is, why don't we hear about the benefits of 
land going into trust?
    Mr. Washburn. Because only the controversial ones get any 
attention, I think it is probably 40 to 1 favorable land into 
trust applications to one negative one. But it is the negative 
one, one out of 40 or 50 or something like that, that tends to 
get all the attention.
    Often, counties and cities are in favor of land going into 
trust, because it serves economic development for them too. But 
they don't holler about those. They holler about the ones they 
are upset about.
    Senator Tester. I want to go over to Senator Crapo's bill, 
which incorporates a lot of things from the HEARTH Act. I am a 
big believer in self-governance, I know you are too. So we are 
going to extend the HEARTH model to natural resources. I really 
think that is a good idea, but I just want to ask you about 
something that we don't really talk about, and the Federal 
Government is guilty of this as well, State government as well 
as private landowners.
    What happens in Indian Country if there is an environmental 
wreck with the decisions they made? Who pays to clean up that 
environmental wreck?
    Mr. Washburn. Under Senator Crapo's bill, it would be the 
Federal taxpayer that would pay if there is an environmental 
wreck. Because the liability remains on the Federal Government. 
And there is some heartburn about that. We generally structure 
liability rule in the United States so that the actor who is 
acting bears responsibility for their actions. This bill 
doesn't do that exactly.
    Senator Tester. So we have a guy behind you, and I don't 
want to put him on the spot, and it has to be with the 
concurrence of the Chairman, that is shaking his head no. Can I 
ask him if he can come up? Do you want to come up and tell me 
if you have a different opinion and why? You have to identify 
yourself for the record.
    Mr. Gunn. Sir, my name is Brian Gunn, I am counsel for the 
Coeur D'Alene Tribes and I have been working on this bill.
    The HEARTH Act provision that is in S. 383 extends the 
HEARTH Act to forest management activities only. And that 
provision, that the same liability, waivers of liability that 
are in the existing HEARTH Act are in that language. So the 
provisions is not intended to increase liability at all.
    Senator Tester. No, I don't think that was the question, 
though. The question was who is liable. So we both agree. Thank 
you very much for the clarification.
    One last thing, and I only have a second left, but I have 
to ask the lady, Brenda, the question is, could you tell me 
very quickly, because my time has run out, the kind of economic 
development projects that your tribe has not been able to do 
because of a lack of a Carcieri fix bill?
    Ms. Lintinger. Well, we have had several business 
opportunities that have come online that we have explored and 
done due diligence and have not been realized. As I said 
earlier, the status of the land is always an integral part for 
any business development.
    Our tribe, as you may or may not know, had a determination 
by the Bureau of Indian Affairs that we do not have a Carcieri 
issue. However, that is insufficient for us. We can't stop 
there, even though we have that determination. Because there is 
still this existence of a two-tier or two-class system within 
the Country. That is unacceptable to us.
    So while it may not impact us directly in the same way, 
there are other tribes who will be impacted in a greater 
fashion.
    Senator Tester. I got it.
    Ms. Lintinger. And we can't stand silently by for that.
    Senator Tester. Thank you for your testimony and thank you 
all for being here today and testifying. We look forward to 
working with you and doing right by Indian Country. Thank you 
very much.
    The Chairman. Thank you, Senator Tester. Senator Hoeven?

                STATEMENT OF HON. JOHN HOEVEN, 
                 U.S. SENATOR FROM NORTH DAKOTA

    Senator Hoeven. Thank you, Mr. Chairman. I would like to 
thank all the witnesses for being here today.
    Ms. Lintinger, when I served as Governor of North Dakota, 
the Governor of Rhode Island at that time was Governor 
Carcieri. I think Senator Moran was right, I don't think any 
two people ever pronounced his name the same.
    Ms. Lintinger. My inclination was Carcieri.
    Senator Hoeven. I heard that version, too, amongst others. 
And I do remember the lawsuit, I think it was ongoing at the 
time.
    Thanks to all of you for being here. Secretary Washburn, 
thank you for your help and support with the Native American 
Children's Protection Act, which I sponsored, along with 
Senator Tester. It has now passed both the Senate and the 
House. So we have to reconcile a final version and then it is 
off to the President. Of course, that is all about protecting 
Native American children in foster homes. Your assistance was 
invaluable, and I want to thank you for that.
    Mr. Washburn. Thank you for your leadership. Thank you for 
getting that bill passed.
    Senator Hoeven. I appreciate it and I wanted to put that on 
the record, that your help and support was vital.
    I want to talk to you about the Land around Lake Sakakawea. 
For over 10 years, the Department of the Interior and the Army 
Corps of Engineers have been engaged in a potential transfer of 
garrison project lands from the Army Corps of Engineers to be 
taken into trust by the Interior. In 2007, North Dakota's 
entire delegation went to the Corps and Interior laying out 
several of our concerns. We wanted to make sure several issues 
raised by the local people were addressed before any transfer 
occurred.
    One of the primary concerns raised back then was the 
potential that public access to Lake Sakakawea would be 
reduced. For years, this area has been used by many North 
Dakotans and many others from on and off the reservation for 
hunting, fishing and other recreational activities.
    Under this transfer, there is concern from cabin owners, 
hunters, fishers, and others that access, as far as their 
access to the lake or areas around the lake, concern that that 
access could be restricted. Additionally, Interior and the 
Corps never specifically identified which acres would be 
transferred, which concerns the North Dakota Game and Fish 
Department, because it has wildlife management areas that could 
be caught up in the transfer.
    There are still serious concerns that have yet to be 
addressed. And it is my understanding that since 2007, neither 
the Corps nor Interior has held any public meetings to hear 
from locals before it again moved forward with this proposal. 
In fact, two weeks ago, Governor Jack Dalrymple wrote to 
Secretary Jewel citing similar concerns the delegation had 
expressed in 2007 and 2008. I was Governor at that time.
    With this in mind, can you please discuss what action the 
BIA and Department of the Interior are taking to address the 
concerns raised by the State and locals? Is there a plan to 
ensure that the rights to access the acres in question by 
Indian and non-Indian citizens alike are protected? Is there a 
plan for public meetings to take input before any action is 
taken?
    Mr. Washburn. Senator Hoeven, I guess what we would say is 
we are following the law. The law that Congress enacted says 
that the lands that were not needed by the Corps for the flood 
control project must be returned to the tribe. It has been hard 
to determine, it has taken decades to determine actually what 
did the Corps need.
    But now that that need has been determined, it is just 
another broken promise to the tribes until we return the land 
to them, as we promised we would in that congressional statute.
    So the statute didn't provide for public input. We are 
interested in public input. But this is mandatory. Congress has 
directed us to return to the tribes the land that is not needed 
for the flood control project. Because it was taken from them 
in the first place on the theory that part of this land is 
needed for the project. So that has been our effort.
    I will tell you that from my conversations with folks, it 
sounds like they all share the same interests. The tribe 
largely wants that land for tourism and economic development. 
So they need people to be able to access the lake. And so they 
seem to be very onboard with just the concerns you mentioned, 
that the public have access. That indeed is one of their number 
one goals.
    So I don't think that is actually a real problem, at least 
from the tribes' perspective. So we will continue to follow the 
law as best we can. We will certainly, we are interested in 
public input but we really have an obligation to these tribes. 
We took the land from them and we promised we would give back 
what we didn't need. And we haven't done that yet.
    Senator Hoeven. Mr. Secretary, you need to check. In many 
cases, that land was taken from individuals, not from the 
tribe, from individuals. And you have many, many interests 
represented around that lake. You have an entire congressional 
delegation and a governor and an entire State that want you to 
make sure darned sure all interests are protected. You need an 
open, transparent process, including hearings, to make sure you 
hear from people on the ground. I think the law does require 
that.
    I understand you have your interpretation of the law. There 
are other interpretations too. Regardless, we need to protect 
everybody's rights. And when you say it was taken from the 
tribe, you need to check. In many cases, it was taken from 
individuals, both Indian and non-Indian. So let's make sure we 
are very inclusive in this process, open and transparent. You 
have to have some kind of hearings, some kind of process.
    Also, please look at that letter from the Governor and make 
sure that there is a response to the issues that are raised in 
that letter.
    Mr. Washburn. We will do that, Senator. Thank you.
    Senator Hoeven. Thank you, Mr. Secretary. And again, we 
have worked on many issues. I know you are thorough and 
professional and you are someone we can work with. So we look 
forward to making sure this is done carefully and that 
everybody's rights and interests are protected and considered 
fairly.
    The Chairman. Thank you, Senator Hoeven.
    Secretary Washburn, I want to follow up on one of Senator 
Crapo's questions to be sure we get a clear answer. It was 
referred to the Indian Trust Fund Management Reform Act of 
1994. Could you point to a reform that was tasked in that piece 
of legislation that the Office of Special Trustee has not yet 
implemented? It is 21 years, and they have been there, and we 
just have concerns about this.
    Mr. Washburn. Let me just say that these things do develop 
a life of their own, organically, as Senator Crapo recognized. 
So no, I cannot do that.
    But I will tell you, they have come to perform a very 
important function to meet the trust responsibility that the 
United States has to Indian people and Indian tribes. That is a 
very important function. We count on them to perform that 
function and I think they perform it well.
    The Chairman. So then why did the Administration yesterday 
decide that they weren't going to be here to testify today and 
pull him off a panel and they had already been noticed and we 
had already had it printed up that they were going to be here?
    Mr. Washburn. Chairman, this is the 20th time I have been 
before this Committee in the last three years, and I haven't 
been given a gold watch. Not everybody enjoys coming over here 
for, I think you may have another so often. Honestly, I haven't 
been here since March, and I thought maybe you had lost my 
phone number.
    The Chairman. We were looking forward to having both of you 
here.
    Mr. Washburn. Well, it is a privilege for me to come over 
here, of course, but not everybody enjoys it as much as I do.
    The Chairman. Well, sometimes it is not about the enjoyment 
of the individual, it is about the cause that needs to be done, 
the efficiency of government, the efficiency of making sure 
taxpayers' dollars are being used properly. For somebody to 
say, I don't enjoy it, so I am not going to go, is really not 
an acceptable answer to the United States Senate or this 
Committee.
    Mr. Washburn. Chairman, you talked about duplication of 
effort. You got me, and you can beat on me all day long. But 
you talked about duplication of effort in your opening 
statement.
    The Chairman. We had some specific questions for that 
individual. And for the Administration yesterday, to first 
approve and then the day before the hearing say oh, no, we are 
going to pull the rug out, that is unacceptable. Because I 
believe that we have to work together to improve many of the 
outdated systems and processes that are preventing tribes from 
fully exercising their sovereignty for the benefit of their 
people. That is what this is really about. I think it is 
especially true when it comes to Indian lands.
    So we have heard many concerns about the land to trust 
application process. You indicate some of them. Based on your 
experience at Interior and outside the Department, can you 
identify and describe some specific portions of Part 151 
process that could be improved? We hear things and staff hears 
things in terms of specific concerns.
    Mr. Washburn. Let me just say, there was a strong effort 
during the Clinton Administration to improve the Part 151 
process. A lot of people worked really hard on that for about 
three years. Ultimately, it all came to naught. It was never 
implemented even though a final rule was passed. It was stopped 
by the new Administration that came in after President Clinton.
    So a lot of effort, we looked at that and thought that we 
wanted to get things done for Indian Country. So I can't tell 
you about specific things that need to change with 151. We have 
done some tinkering with it and honestly improved it. But that 
is working, too. We have taken 1,900 applications for land into 
trust and successfully moved them through the system.
    So that is working very well for tribes. We have 300,000 
acres to prove it.
    The Chairman. One of the concerns Committee staff has heard 
relates to changes in land use after land has been taken into 
trust. Do you believe that that part of 151 needs additional 
protections, for changes in land use?
    Mr. Washburn. We don't think the tribes need more red tape 
on them after they already have land into trust. We are trying 
to restore tribal sovereignty by getting land back to tribes. 
So we would not be in favor of anything that imposes additional 
regulatory hurdles on tribes as they seek to exercise their 
sovereignty on their lands that are in trust.
    The Chairman. To Vice Chairman Stensgar, the Committee is 
committed to expanding tribal sovereignty and self-
determination. With proper safeguards and support, giving 
tribes the freedom to manage their own lands seems like an 
important step in that direction, which would benefit all of 
Indian Country.
    My question is, can you explain how allowing tribes to take 
greater authority and responsibility in the management of your 
lands would help expand tribal sovereignty and self-
determination?
    Mr. Stensgar. This bill is a step forward in Indian self-
determination. It would allow us the opportunity to control how 
our trust assets are managed. It would certainly give the 
tribes and individuals a benefit. Tribes and individuals would 
have the opportunity to obtain appraisals without any 
paternalism or authorization. It just takes a giant step 
forward in Indian self-determination and tribal destiny.
    The Chairman. Thank you.
    Secretary Washburn, one final thing on this, on 151. Your 
office announced new rules for the Part 83 Federal recognition 
acknowledgement process. The new rules provide greater 
transparency in posting Part 83 applications online. I am just 
wondering if a similar approach would be useful for the Part 
151 applications.
    Mr. Washburn. We would be willing to look at that. If you 
pass a clean Carcieri fix, I think that is something we can 
make happen.
    The Chairman. Thank you.
    Any further questions from any other Committee member?
    Thank you very much for being here. Some people may put 
some written questions to you. We will hold the Committee 
record open for an additional week so that members can get 
questions to you. If they do, I hope you will respond quickly.
    Thank you very much for being here today.
    [Whereupon, at 3:50 p.m., the hearing was adjourned.]

                            A P P E N D I X

  Prepared Statement of Jacqueline Pata, Executive Director, National 
                      Congress of American Indians
    Dear Chairman Barrasso and Vice-Chairman Tester:
    On behalf of the National Congress of American Indians, I would 
like to thank the Senate Committee on Indian Affairs for holding an 
oversight hearing that discussed on S. 383--The Indian Trust Asset 
Reform Act. Indian lands and natural resources are a primary source of 
economic activity for tribal communities, but the antiquated, 
inefficient federal trust management system is very harmful to many 
reservation economies. NCAI strongly supports the legislation and urges 
swift passage.
    S. 383 will take an essential step in the effort to modernize the 
trust management system into a process that recognizes that tribes are 
in the best position to make decisions for their communities. Through 
the trust asset demonstration project created in the bill, tribes will 
have the ability to manage and develop their lands and natural 
resources without unnecessary federal encumbrances. This provision of 
the bill also authorizes tribes to engage in surface leasing or forest 
management activities--mirroring the framework of the highly successful 
HEARTH Act of 2012, which puts tribes in the position to make decisions 
about their lands and resources.
    Further, S. 383 addresses one of the most significant bottlenecks 
in the trust system: the Office of the Special Trustee. This office was 
intended to be an oversight office when it was created by Congress over 
twenty years ago, but now has taken over management functions and adds 
another silo of bureaucracy outside the purview of the BIA. The bill 
requires the Secretary of the Department of the Interior (DOI) to 
submit a report that will include a transition plan for the Office. 
Additionally, the Secretary, through tribal consultation, will 
consolidate the appraisals and valuations processes under a single 
administrative entity under DOI as well as establish minimum 
qualifications to prepare appraisals and valuations of Indian trust 
property.
    Thank you for your consideration of this important legislation. We 
request that the Committee supports and moves this legislation to 
Senate floor for consideration.

    Attachments

   The National Congress of American Indians--Resolution #ANC-14-051
TITLE: Supporting Trust Asset Modernization Legislation
    WHEREAS, we, the members of the National Congress of American 
Indians of the United States, invoking the divine blessing of the 
Creator upon our efforts and purposes, in order to preserve for 
ourselves and our descendants the inherent sovereign rights of our 
Indian nations, rights secured under Indian treaties and agreements 
with the United States, and all other rights and benefits to which we 
are entitled under the laws and Constitution of the United States, to 
enlighten the public toward a better understanding of the Indian 
people, to preserve Indian cultural values, and otherwise promote the 
health, safety and welfare of the Indian people, do hereby establish 
and submit the following resolution; and
    WHEREAS, the National Congress of American Indians (NCAI) was 
established in 1944 and is the oldest and largest national organization 
of American Indian and Alaska Native tribal governments; and
    WHEREAS, the United States' fiduciary responsibilities to Indians 
are founded on the settled law of nations, an inherent presupposition 
of our constitutional structure, and commitments in treaties and 
written agreements securing peace in exchange for vast tracts of land; 
and
    WHEREAS, the foregoing historic federal-tribal relations and 
understandings have benefitted all people of the United States for 
centuries and established enduring obligations to which the national 
honor has been committed; and
    WHEREAS, the United States has assumed enforceable trust 
responsibilities over lands and resources held by the United States in 
trust for Tribal Nations and Tribal citizens even if nothing is said 
expressly in the governing statutes or regulations, and the most 
exacting common-law fiduciary standards should govern such federal 
management of Indian trust assets; and
    WHEREAS, the United States' fiduciary responsibilities to Indian 
tribes include and are not limited by a duty to promote tribal self-
determination, and the fact that the United States may simultaneously 
perform another task for another interest that Congress has obligated 
it by statute to do does not compromise or limit the United States' 
enforceable fiduciary obligations to Indians; and
    WHEREAS, notwithstanding the established law and policy during the 
Self- Determination Era, employees of the Executive Branch during this 
period have repeatedly sought to avoid, limit, and repudiate federal 
trust duties; and
    WHEREAS, the American Indian Trust Funds Reform Act of 1994 
temporarily created the Office of the Special Trustee, an agency within 
the Department of Interior that is wholly separate from the Bureau of 
Indian Affairs but that, over time, has come to perform certain 
functions and activities historically performed by the Bureau of Indian 
Affairs; and
    WHEREAS, the creation of a bureaucracy within the Office of the 
Special Trustee to handle Indian trust assets has resulted in confusion 
and delays in processing trust transactions, with insufficient 
oversight by the beneficiary Tribal Nations and Tribal citizens; and
    WHEREAS, there is no longer a need or reason to have the Office of 
the Special Trustee as an agency within the Department of Interior that 
is separate and distinct from the Bureau of Indian Affairs; and
    WHEREAS, while the Office of the Special Trustee has implemented 
positive reforms in the past 10 years, the position of Special Trustee 
for American Indians has been vacant for approximately 5\1/2\ years; 
and
    WHEREAS, NCAI and many Tribal Nations and citizens have continued 
to advocate for meaningful administrative and congressional trust 
reform to help ensure that the Executive Branch fully meets all trust 
obligations of the United States as trustee to Indians; and
    WHEREAS, the U.S. Department of the Interior has established a 
temporary trust commission to evaluate the Department's management and 
administration of Indian trust assets, and to make recommendations to 
improve the federal Indian trust administration system, including 
regarding termination of the Office of the Special Trustee and whether 
any legislative or regulatory changes are necessary to permanently 
implement improvements and to prevent future trust mismanagement; and
    WHEREAS, the Commission on Indian Trust Administration and Reform 
issued a report in December of 2013, setting forth numerous 
recommendations regarding the administration of Indian trust assets 
that require further study, review and discussion within Indian 
Country; and
    WHEREAS, there is widespread recognition and agreement among Indian 
tribes that any proposal to modernize or reform the administration of 
Indian trust assets should include options and opportunities for Indian 
tribal governments to make trust management decisions themselves as 
well as modernization of existing trust laws, regulations, policies and 
practices that restrict or inhibit tribes from exercising their 
inherent sovereign authority to engage in sustainable economic 
development for the benefit of their current members and future 
generations.
    NOW THEREFORE BE IT RESOLVED, that as a primary priority NCAI urges 
Congress to enact trust reform legislation, either as stand-alone 
legislation or as part of another legislative vehicle to the extent 
such vehicle is available and appropriate under the circumstances, that 
will reaffirm the above foundational history and legal principles, 
require Executive Branch management of Indian trust assets to meet all 
federal trust obligations with full accountability to Indian 
beneficiaries, and require federal officials to honor and uphold the 
trust responsibilities of the United States to Indian tribes and 
individual Indian beneficiaries; and
    BE IT FURTHER RESOLVED, that NCAI urges Congress to transfer the 
functions of the Office of the Special Trustee, with supporting 
appropriated funds, to the Bureau of Indian Affairs (BIA) or local BIA 
offices as appropriate, under the supervision and authority of a Deputy 
or Under Secretary for Indian Affairs, who would also oversee other 
Indian trust functions within the Department of the Interior; and
    BE IT FURTHER RESOLVED, that NCAI urges Congress to enact a self-
determination mechanism to increase tribal control and planning for 
tribal trust assets and streamline processes to expedite transactions 
and promote economic development, while maintaining federal trust 
oversight and responsibilities; and
    BE IT FURTHER RESOLVED, that this Resolution supersedes and 
replaces Resolution SAC-12-023; and
    BE IT FINALLY RESOLVED, that this resolution shall be the policy of 
NCAI until it is withdrawn or modified by subsequent resolution.
    CERTIFICATION The foregoing resolution was adopted by the General 
Assembly at the 2014 Mid-Year Session of the National Congress of 
American Indians, held at the Dena'ina Civic & Convention Center, June 
8-11, 2014 in Anchorage, Alaska, with a quorum present.

   The National Congress of American Indians--Resolution #MSP-15-029
TITLE: Reaffirming Support for Congressional Passage and Enactment into 
        Law of the Indian Trust Asset Reform Act
    WHEREAS, we, the members of the National Congress of American 
Indians of the United States, invoking the divine blessing of the 
Creator upon our efforts and purposes, in order to preserve for 
ourselves and our descendants the inherent sovereign rights of our 
Indian nations, rights secured under Indian treaties and agreements 
with the United States, and all other rights and benefits to which we 
are entitled under the laws and Constitution of the United States, to 
enlighten the public toward a better understanding of the Indian 
people, to preserve Indian cultural values, and otherwise promote the 
health, safety and welfare of the Indian people, do hereby establish 
and submit the following resolution; and
    WHEREAS, the National Congress of American Indians (NCAI) was 
established in 1944 and is the oldest and largest national organization 
of American Indian and Alaska Native tribal governments; and
    WHEREAS, congressional introduction and enactment of a bill that 
would establish an Indian trust asset demonstration project and 
restructure the Office of the Special Trustee, and this draft 
legislation, the Indian Trust Asset Reform Act, was introduced in both 
the House and the Senate as H.R. 409 and S. 165 in the 113th Congress; 
and
    WHEREAS, members of Congress in both parties reintroduced the 
Indian Trust Asset Reform Act in the 114th Congress as H.R. 812 and S. 
383, and the bill has bipartisan support from members of Congress 
across the U.S.; and
    WHEREAS, on April 14, 2015, the House Subcommittee on Indian, 
Insular, and Alaska Native Affairs heard testimony on how H.R. 812 
would benefit Indian country and promote self-determination, and the 
bill was well received; and
    WHEREAS, the NCAI and a number of Indian tribal governments from 
across Indian country have endorsed the Indian Trust Asset Reform Act.
    NOW THEREFORE BE IT RESOLVED, that the NCAI supports congressional 
passage and enactment into law of H.R. 812/S. 383, including changes 
that are necessary to secure passage in both the House and the Senate 
that are consistent with the scope and purposes of the bill, is and 
remains a top trust reform priority; and
    BE IT FURTHER RESOLVED, that this resolution shall be the policy of 
NCAI until it is withdrawn or modified by subsequent resolution.
    CERTIFICATION The foregoing resolution was adopted by the General 
Assembly at the 2015 Midyear Session of the National Congress of 
American Indians, held at the St. Paul River Centre, St. Paul, MN, June 
28 to July 1, 2015, with a quorum present.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Steve Daines to 
                          Hon. Kevin Washburn
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