[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
__________
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COMMITTEE ON INDIAN AFFAIRS
JOHN BARRASSO, Wyoming, Chairman
JON TESTER, Montana, Vice Chairman
JOHN McCAIN, Arizona MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska TOM UDALL, New Mexico
JOHN HOEVEN, North Dakota AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Anthony Walters, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on 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
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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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