[Senate Hearing 117-8]
[From the U.S. Government Publishing Office]
S. Hrg. 117-8
A CALL TO ACTION: NATIVE COMMUNITIES'
PRIORITIES IN FOCUS FOR THE 117TH CONGRESS
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 24, 2021
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
__________
U.S. GOVERNMENT PUBLISHING OFFICE
44-248 PDF WASHINGTON : 2021
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COMMITTEE ON INDIAN AFFAIRS
BRIAN SCHATZ, Hawaii, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington JOHN HOEVEN, North Dakota
JON TESTER, Montana JAMES LANKFORD, Oklahoma
CATHERINE CORTEZ MASTO, Nevada STEVE DAINES, Montana
TINA SMITH, Minnesota MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico JERRY MORAN, Kansas
Jennifer Romero, Majority Staff Director and Chief Counsel
T. Michael Andrews, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on February 24, 2021................................ 1
Statement of Senator Cantwell.................................... 52
Statement of Senator Cortez Masto................................ 46
Statement of Senator Hoeven...................................... 48
Statement of Senator Lujan....................................... 53
Statement of Senator Murkowski................................... 2
Statement of Senator Schatz...................................... 1
Statement of Senator Smith....................................... 50
Witnesses
Forsman, Hon. Leonard, President, Affiliated Tribes of Northwest
Indians........................................................ 26
Prepared statement........................................... 28
Kitka, Julie, President, Alaska Federation of Natives............ 36
Prepared statement........................................... 39
Lindsey, Hon. Carmen ``Hulu'', Chair, Board of Trustees, Office
of Hawaiian Affairs............................................ 29
Prepared statement........................................... 31
Sharp, Hon. Fawn, President, National Congress of American
Indians........................................................ 4
Prepared statement........................................... 5
Appendix
Danner, Robin Puanani, Chairwoman, Sovereign Council of Hawaiian
Homestead Associations, prepared statement..................... 73
Nuvangyaoma, Hon. Timothy, Chairman, Hopi Tribe, prepared
statement...................................................... 57
Reitmeier, Kim, Executive Director, ANCSA Regional Association,
prepared statement............................................. 63
Scott, Carol Wild, Esq., Legislative Chair, Veterans and Military
Law Section, Federal Bar Association, prepared statement....... 58
Seattle Indian Health Board, prepared statement.................. 60
Swartz, Jr., Hon. Warren C., President, Keweenaw Bay Indian
Community, prepared statement.................................. 66
United South and Eastern Tribes Sovereignty Protection Fund,
prepared statement............................................. 67
A CALL TO ACTION: NATIVE COMMUNITIES' PRIORITIES IN FOCUS FOR THE 117TH
CONGRESS
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WEDNESDAY, FEBRUARY 24, 2021
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. Brian Schatz,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
The Chairman. Good afternoon. I will call this oversight
hearing to order.
I am honored to kick off the first oversight hearing as the
Chairman of the Committee, Putting Native Communities'
Priorities Directly in the Spotlight, as our first order of
business. Leaders from across Indian Country, Hawaii, and
Alaska, welcome. Thank you for being here.
I would also like to extend a warm aloha to the Office of
Hawaiian Affairs Board of Trustees Chair, Carmen ``Hulu''
Lindsey. Congratulations on your appointment as chair, and
thank you for your leadership to support the well-being of the
Native Hawaiian people. One of my goals as chairman is to bring
Native Hawaiian issues and priorities to the forefront, and I
look forward to continuing our partnership on the Committee.
I want to be clear that today's hearing isn't a check-the-
box exercise. It is a real opportunity for members of the
Committee to chart a path forward by listening to and learning
from Native leaders for the next two year and beyond. Now more
than ever, Congress must be tuned in and listening. Native
communities are experiencing disproportionate impacts from
multiple crises, COVID-19, economic insecurity, racial
injustice, and climate change.
So as the strongest voice for Native priorities in the
Congress, this Committee will act to address these challenges
by working together in its bipartisan tradition, and to uphold
the Federal treaty and trust responsibilities to tribes and
Native communities across the Country, from Hawaii to Alaska
and to the continental United States.
The last time this Committee held a priorities meeting, it
was to hear from the Trump Administration about its priorities
for Indian Country, a perfectly appropriate thing to do. But
today's hearing is different. We are bringing the focus back to
Native communities. We want to hear directly from you about
your priorities for the 117th Congress, because consultation
should not apply just to the Executive Branch, but also to
Congress to inform our work, to advance Indian Country and
Native communities' priorities.
I look forward to hearing from each of the witnesses
joining us today. I thank everybody for participating.
I will now turn to the vice Chair, Senator Murkowski, for
any opening statement.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. I am looking
forward to our partnership on this Committee. The oversight
hearing that we have scheduled here today is a very important
one for all of the reasons that you have mentioned. I too want
to welcome our witnesses. Your participation and your testimony
really will help set the direction for us this Congress.
You have outlined, Mr. Chairman, some of the priorities. I
think it is important to recognize and acknowledge that we do,
this Committee takes seriously the priorities of our Native
communities. They have guided the legislation that we have seen
come out of this Committee over the years.
With strong and unified tribal voices laying out the needs
of tribes, we have seen passage of significant pieces of
legislation. You think about some of the ones in recent years,
there was the Tribal Law and Order Act, the Indian Child
Welfare Act, the Indian Arts and Crafts Act, the Native
American Languages Act, the Native Act, Savanna's Act, just
last year. So many others.
I am really proud to have worked to help the shepherd the
reauthorization of the Indian Health Care Improvement Act. I
have worked on Native youth suicide issues with former
chairman, Byron Dorgan. The work that we have been able to do
to support Native education and language programs, as we
advanced the Alice Spotted Bear and the Walter Soboleff
Commission on Native Children. So many great initiatives here.
And I think this Committee, as we mentioned before, is one
that has a reputation of being collaborative, of being
bipartisan. I think that the work that we do to address the
extraordinary diversity of tribes is an important priority, and
this Committee will continue to do so. So whether it is
targeting pandemic relief or addressing structural barriers to
economic recovery, there are varying needs on reservations that
face Native Hawaiians or Native people in Alaska. So hearing
from leaders such as we have today is critical to our effort.
When we think about diversity, it is a reminder to us all
that the blessings that we have with the leadership from our
Native people, whether it is in tribes on the east coast,
Native Hawaiians or Alaska Natives, there are differences. We
recognize the differences. We also recognize the differences in
governance structure.
This year marks the 50th anniversary of the passage of
ANCSA, the Native Claims Settlement Act. This law changed the
treatment of Alaska Natives and their lands, setting up a
different model than the reservation system. Part of that
bargain with the passages of that law was that services to
Alaska Natives would not be cut off. ANCSA was amended to
include a provision that eliminated all doubt as to whether the
Federal service obligation to Alaska Natives remained after the
passage of ANCSA. Ensuring that the legislation continues to be
fully implemented and meets the goals and the intent behind the
law has been a commitment of mine while Senator.
I raise that because my hope is that as colleagues come to
understand the differences and distinctions, the great
diversity among Native American peoples, whether they are in
the State of Montana, State of Hawaii, or State of Alaska, we
all recognize that this Country, the United States, has a
unique fiduciary trust obligation to American Indians, Alaska
Natives, Native Hawaiians, wherever they are.
That will be the goal of this Committee, to ensure
fulfillment of these trust and treaty obligations. So it is, it
is about listening, listening first and foremost.
I am hopeful that we will get to a place, Mr. Chairman,
where we have the ability to move about more freely, where we
are able to not only see our Native leaders here in person in
the Committee, but that we will be able to get out into their
communities, out to visit on reservations, to visit with
tribes. And again, continue that very, very important dialogue.
The issues are profound in so many ways, as we think about the
effort to promote economic recovery, through job creation,
workforce development, following this pandemic. What we do to
address public safety and law enforcement, enhancing health
care access, how we deal with infrastructure needs, whether it
is broadband or water and sanitation, whether it is dealing
with housing issues and overcrowding. There is so, so much to
be done. I am looking forward to taking up these efforts.
Today we are going to have an opportunity to receive
testimony from our Alaska Native witness, and a leader, and a
friend of mine. Julie Kitka is President of the Alaska
Federation of Natives. AFN is the largest statewide Native
organization in our State, more than 140,000 Native people.
Formed back in 1966 to settle land claims, AFN continues to be
the significant forum and voice of Alaska Natives in addressing
critical issues of public policy and government.
Thank you, Julie, for testifying virtually. Know that we
value not only your testimony and your insight today, but
really for the leadership that you have provided. I should note
that Julie just celebrated 30 years with AFN on New Year's Day.
I appreciate all of her work.
I also want to recognize President Sharp for being here
with us today, and thank her for the opportunity to speak to
the NCAI membership yesterday with you, Senator Schatz. Again,
good engagement. I am looking forward to today and to this
Congress.
The Chairman. Thank you very much.
We will now turn to our witnesses. I will introduce the
witnesses. We will start with Ms. Sharp. First, we have the
Honorable Fawn Sharp, President of the National Congress of
American Indians. Then we have the Honorable Leonard Forsman,
President of the Affiliated Tribes of Northwest Indians,
Portland, Oregon. Then we have the Honorable Carmen ``Hulu''
Lindsey, Chai of the Board of Trustees of the Office of
Hawaiian Affairs. And Ms. Julie Kitka, President and CEO of the
Alaska Federation of Natives, from Anchorage, Alaska.
President Sharp, you may begin.
STATEMENT OF HON. FAWN SHARP, PRESIDENT, NATIONAL CONGRESS OF
AMERICAN INDIANS
Ms. Sharp. Thank you very much. [Greeting in Native
tongue.]
Good morning, Chairman Schatz and Vice Chairman Murkowski,
and members of the Senate Committee on Indian Affairs.
On behalf of the National Congress of American Indians, I
thank you for holding this hearing. I am Fawn Sharp, President
of the Quinault Indian Nation and President of the National
Congress of American Indians, the oldest and largest
organization comprised of sovereign tribal nations and their
citizens.
As the 117th Congress commences, Indian Country is in a
national emergency that while intensified by the COVID-19
pandemic has its roots in the Federal Government's neglect of
its fiduciary obligations to Indian Country. That has led to
our vulnerability to the COVID-19 pandemic and resulted in our
communities at times having the highest per capita COVID-19
infection rate in the United States.
While COVID-19 has had an impact all across Indian Country,
and while it is our foremost priority, Congress must address
the structural barriers that impair the lives and livelihoods
of our citizens through a public health and an economic
recovery plan for Indian Country. This Committee is best
situated to provide leadership toward this tribal Marshall
Plan, and has an historic opportunity to harness Congress'
plenary power to remove barriers and support Indian Country's
socioeconomic development on a sovereign to sovereign basis.
Today, my testimony will focus on an overview of critical
needs in the following areas. First, I would like to address
COVID-19 relief. Despite the pandemic's disproportionate impact
to our communities, Indian Country received only .5 percent of
the $2 trillion in aid provided in the CARES Act. Our
communities continue to battle this infection while struggling
to deliver health care, access to vaccines, and to stabilize
our governments.
In recognition of this need, in February of 2021, NCAI and
18 tribal organizations sent a letter to Congressional
leadership addressing the urgent tribal priorities that
included requests for $15 billion for tribal health and $20
billion in direct aid to tribal governments. NCAI is encouraged
that many of the asks that were included in the House package
were made and we requested these tribal provisions be retained
in the final bill, including the $20 billion in direct aid to
tribal governments.
Additionally, we request that Congress commit to include
tribal nations in all forthcoming COVID-19 packages to address
the significant tribal assistance needs.
Second, I will focus on infrastructure. As documented in
the United States Commission on Civil Rights, the 2018 Broken
Promises Report, Indian Country has substandard infrastructure
in every sector. The statistics are harrowing. I strongly urge
each and every Committee member to carefully examine those
findings.
Accordingly, I call upon this Congress to prioritize tribal
infrastructure and to reform the chronic and widespread
underfunding of the trust relationship. My written testimony
highlights specific actions that can improve the living
conditions of our citizens through infrastructure investment in
detail.
Additionally, Congress must prioritize the timely funding
of the trust responsibility. In the 116th Congress, legislation
was introduced authorizing advance appropriations with
bipartisan and bicameral support. Advance appropriations must
be enacted during this Congress in order to achieve the basic
stability and certainty that is owed to tribal nations by the
Federal Government.
Third, I will address tribal homelands. Tribal homelands
are essential to the economies and cultures of tribal nations.
Since 1934, Federal policy supported the restoration through
the land into trust process under Section 5 of the Indian
Reorganization Act. In 2009, the Supreme Court created
confusion in this process which resulted in a decade of land
into trust delays and lawsuits defended by taxpayer dollars.
Since the 111th Congress, members of this Committee have
consistently introduced legislation a clean fix that would
include, number one, restoring the Interior Secretary's
authority to take land into trust for all federally recognized
tribal governments, and two, reaffirm existing trust lands.
NCAI requests this Committee prioritize passage of a clean
Carcieri fix.
Fourth and finally, I would like to address climate change.
Climate change threatens the health, culture and economies of
tribal peoples. Due to these impacts, tribal nations are key
partners, and we must be at the table at all national and
international engagement on this subject. We are
disproportionately impacted by climate change, and we certainly
deserve a seat at every table.
Finally, I urge this Committee to support the nomination of
Representative Haaland as Secretary for Interior to support the
tribal priorities described above. Representative Haaland is
amply qualified and has demonstrated time and time again
expertise and a record of bipartisan support. Accordingly, we
ask this Committee's members to support her swift confirmation
to expedite Interior's performance of its trust and treaty
obligations to tribal nations and peoples.
In conclusion, I thank you for this opportunity to testify.
I look forward to your questions. [Phrase in Native tongue.]
[The prepared statement of Ms. Sharp follows:]
Prepared Statement of Hon. Fawn Sharp, President, National Congress of
American Indians
On behalf of the National Congress of American Indians (NCAI),
thank you for holding this hearing to address tribal priorities for the
117th Congress. I am Fawn Sharp, President of the Quinault Indian
Nation and President of NCAI.
Founded in 1944, NCAI is the oldest and largest representative
organization serving the broad interests of Tribal Nations and
communities. Tribal leaders created NCAI in response to federal
policies that threatened the existence of Tribal Nations. Since then,
NCAI has fought to preserve the treaty and sovereign rights of Tribal
Nations, advance the government-to-government relationship, and remove
structural impediments to tribal self-determination.
These three principles are derived from the ``Declaration of Indian
Rights,'' passed by 183,000 American Indians and Alaska Natives (AI/
ANs) who convened in 1954 to address the termination crisis, and remain
the solutions to our present crises.
As the 117th Congress commences, Indian Country is in a national
emergency that-while intensified by the coronavirus-19 (COVID)
pandemic-has its roots in the federal government's neglect of its
fiduciary obligations to Tribal Nations and citizens. This situation
was foreshadowed in 2018 by the United States Commission on Civil
Rights' (USCCR) Broken Promises Report which found that:
Federal programs designed to support the social and economic
well-being of Native Americans remain chronically underfunded
and sometimes inefficiently structured, which leaves many basic
needs in the Native American community unmet and contributes to
the inequities observed in Native American communities. \1\
This existing crisis created disparities that led to American
Indian and Alaska Native (AI/AN) vulnerability to the pandemic and
resulted in our communities having at times the highest per-capita
COVID-19 infection rate in the U.S. \2\ This
lethal breach of trust led to deaths of over 5,307 and the number
continues to grow. We have lost our language keepers, youth, leaders,
and loved ones to the viral socio-economic conditions that have spread
this scourge and impaired our response.
While Indian Country's foremost priority for the 117th Congress is
relief to battle the pandemic, Congress must address the structural
barriers that impair the lives and livelihoods of AI/ANs through a
public health and economic recovery plan for Indian Country. The Senate
Committee on Indian Affairs (SCIA) is best situated to lead this
``Tribal Marshall Plan'' and has a historic opportunity to harness
Congress' plenary power to support Indian Country's development out of
the imposed third-world conditions that existed pre-pandemic.
In support of these efforts, I incorporate for the record NCAI's
2021 tribal priorities for all committees of jurisdiction \3\ and our
FY 2022 Budget Request which contains a historic analysis of the
chronic underfunding of programs administered by the U.S. Department of
the Interior (Interior). \4\ To that end, my testimony today will
address needs in the following areas: COVID-19 relief; infrastructure;
advanced appropriations and data; health, economic development; lands
and cultural heritage; energy and climate change; public safety and
justice; and child and family welfare.
I. COVID-Relief
Presently, the rate of AI/AN infection and deaths from COVID-19
continues to remain high. As of February 18, 2021, the Indian Health
Service (IHS) reports nearly 184,585 cases within the IHS, tribal, and
urban Indian health care system (known commonly together as ``I/T/U'').
\5\ According to the Centers for Disease Control and Prevention (CDC),
AI/AN communities have lost at least 5,307 lives to COVID-19, the
majority of whom are over the age of 55. \6\ Today, despite being only
0.4 percent of the weighted distribution of the U.S. population, AI/AN
COVID-19 deaths represent 1.2 percent of all U.S. deaths related to
this virus. This disparity is even greater in some parts of Indian
Country. \7\
Despite the pandemic's disproportionate impact on AI/AN
communities, Indian Country received only .5 percent of the $2 trillion
in aid provided in the Coronavirus Aid, Relief, and Economic Security
(CARES) Act.
In recognition of this unmet need, on February 2, 2021 NCAI and 18
tribal organizational partners sent a letter to Congressional
leadership and the White House addressing urgent tribal priorities in
the following categories: tribal government and economic relief;
health, education, and nutrition aid; transportation, housing,
broadband needs; and emergency management assistance. \8\ This letter
requested $15 billion for tribal health and $20 billion in direct
relief to tribal governments and flexible use of funds.
The House Budget Reconciliation included many of these urgent
tribal priorities. As the Senate continues negotiations on the next
relief package, NCAI requests that the Senate prioritize all tribal
provisions that were included in the House package, including retention
of the $20 billion provided for direct relief to Tribal governments.
This aid is critical for addressing the economic devastation our
governments face due to declining revenues which fund services in our
communities for both tribal and non-tribal citizens.
Additionally, as the United States continues its coordinated
vaccination distribution plan, we urge members of SCIA to support
Tribal Nations in receiving a minimum of five percent of the statutory
set-aside in funds to support the entire I/T/U system for COVID-19
vaccine distribution. Tribal Nations should also be able to receive
vaccines from both their state or directly from IHS and not be forced
to choose between the two. Tribal Nations are integral to the national
vaccine strategy and access to vaccines is essential to this
intergovernmental public health partnership. In addition to retaining
tribal provisions in the present relief package, we request that SCIA
uphold its trust responsibility and commit to including Tribal Nations
in all forthcoming COVID-19 packages to address significant tribal
assistance needs.
II. Infrastructure
A. Water
Current water infrastructure in Indian Country is severely
underfunded and inadequate to meet the health and safety needs of
tribal communities. Nearly 48 percent of Native homes do not have
access to reliable water sources, clean drinking water, or basic
sanitation. \9\ A 2018 GAO Report found that an estimated $3.2 billion
in funding was needed for water infrastructure projects to address
existing sanitation deficiencies in Indian homes, and an additional
$2.4 billion in funding was estimated for future tribal drinking water
infrastructure needs over the next 20 years. \10\ The absence of
adequate and reliable potable water supplies has contributed to
unemployment and mortality rates on tribal lands that are much higher
than those of adjacent non-Indian communities. \11\
i. Support Tribal Water Settlements and Permanently Extend the
Reclamation Water Settlement Fund (RWSF)
Given these needs, tribal water settlements are vitally important
to securing access to water on tribal lands. These settlements often
represent decades of negotiations between tribal, federal, state, and
local stakeholders and seek to improve water systems throughout the
country. \12\ It is essential for Indian water rights settlements to be
resolved and fully funded to fulfill the federal government's
obligation to manage water resources held in trust on behalf of Tribal
Nations. One tool that can be used to adequately fund the
implementation of tribal water settlements is the Reclamation Water
Settlement Fund (RWSF).
The RWSF represents a critical resource for funding infrastructure
projects, such as irrigation canals, dams and storage reservoirs,
treatment facilities, and distribution facilities, tied to Indian water
rights settlements. These infrastructure projects ensure that wet water
reaches tribal lands. Presently, many tribes that have gone through the
arduous process of obtaining these settlements experience chronic and
substantial shortfalls in appropriations from Congressional
authorizations. These shortfalls result in the partial construction of
water infrastructure that in some instances becomes operationally
useless. \13\ The lack of development of tribal water infrastructure,
exacerbated by federal underfunding, essentially eliminates the
possibility of economic, agricultural or energy development on the
tribal lands awaiting that needed infrastructure. \14\
In the 116th Congress, Senator Tom Udall introduced S. 886, the
Indian Water Rights Settlement Extension Act which proposed to
permanently extend the RWSF. Currently the RWSF, codified at 43 U.S.C.
407, is only authorized to receive deposits beginning in FY 2020 and
ending FY 2029, yet this fund is already deemed critical and will be
heavily relied upon by enacted and future Indian water rights
settlements. Future Indian water rights settlements are currently
authorized only to tap into the RWSF for infrastructure needs until FY
2034 when this fund expires. Having a secure funding mechanism is
critical to streamlining the Indian water rights settlement process,
and--in turn--ensuring access to clean drinking water for tribal
citizens, and water certainty for states and the surrounding non-Indian
communities. In accordance with Resolution #DEN-07-069, NCAI strongly
supports reintroduction and passage of legislation to permanently
extend the RWSF. \15\
B. Broadband
Funding is needed throughout Indian Country for rapid deployment,
adoption, affordability, and access to high-speed Internet (broadband).
According to a 2019 Federal Communications Commission (FCC) report,
individuals residing on tribal lands are nearly 4.5 times as likely to
lack any terrestrial broadband Internet access as those on non-tribal
lands. \16\ Even when examining fixed broadband deployment at speeds
lower than ``broadband,'' only 6 percent of homes on non-tribal lands
lack coverage by any wired provider, while 25 percent of homes on
tribal lands have no wired option for 10/1 Mbps service. \17\ Societal
and market behaviors are changing rapidly and everyday tasks and
activities are being driven more online. An immediate robust investment
into tribal communities is critical to ensure that tribal communities
are not entirely left behind as our education, healthcare, government
services, and commerce undergo years of changes in a short time.
i. Expand DOI National Tribal Broadband Grant (NTBG) Program and Hold
Oversight Hearing on Interior's Role in Broadband Deployment in
Indian Country
The National Tribal Broadband Grant Program (NTBG) established
within Interior is administered by the Office of Indian Energy and
Economic Development (IEED). It is a competitive, discretionary grant
program that awards approximately twenty-five to thirty grants ranging
from approximately $40,000 to $50,000. \18\ Currently, the program only
provides a few tribal governments with grant funding to hire
consultants to perform feasibility studies for deployment or expansion
of broadband transmitted, variously, through digital subscriber line,
cable modem, fiber, wireless, satellite and over power lines. \19\ The
NTBG program should be expanded beyond its current capacity to provide
for the implementation of these feasibility studies and increased
funding should be appropriated for the build-out and deployment of
broadband networks in Indian Country.
Further, competitive grant models are cost prohibitive for certain
Tribal Nations to apply for and introduce uncertainty into any long-
term planning that relies on such funds. The result is that those
communities that need access the most are effectively barred from
competitive grant programs. The NTBG program should be expanded and
operate on a non-competitive funding model in order to improve access
for Tribal Nations applying to the program. Expansion of the NTBG could
also entail incorporation of some of the recommendations in the
National Tribal Broadband Strategy (NTBS).
The NTBS was published in January 2021 by Interior as a proposed
roadmap for action and investment by the federal government in
broadband access and adoption for AI/AN communities. This strategy
outlines 28 recommended actions that agencies should take to help
address the digital divide. \20\ The first of these recommendations is
to create a new Broadband Development Program (BDP) within IEED to
implement the NTBS and coordinate efforts within and beyond Indian
Affairs (IA) to drive tribal broadband development. Under this proposed
recommendation, the BDP would administer the NTBG program, provide
technical assistance to tribes, and build partnerships between various
tribal broadband stakeholders. \21\ In accordance with our NTBG related
asks above, the creation of the BDP could help to foster improvements
to the NTBG and improve access to the program.
In addition to the creation of the BDP, the NTBS also details
various administrative and legislative recommendations that should be
considered by Congress. SCIA should conduct an oversight hearing on
Interior's role in broadband deployment in Indian Country that includes
a review of the NTBS in order to gather expert and tribal leader
feedback on the recommendations contained within the strategy. While
many of the recommendations have consensus-based support, others may
conflict with the needs and requests of Tribal Nations. For example,
the NTBS proposes to establish a program for federal match and seed
funding within BDP to provide initial investment for tribal broadband
infrastructure projects. \22\ The strategy also proposes the creation
of Critical Infrastructure Corridors (CICs) to identify zones for
incentivized investment in critical infrastructure to unserved and
underserved tribal communities. These CICs would be identified by
overlaying Opportunity Zones, NEPA exemption areas, and existing
infrastructure networks with underdeveloped and underserved tribal
communities. \23\ Various Tribal Nations and leaders have voiced their
opposition to federal match requirements and the use of opportunity
zones to determine priority and eligibility for tribal broadband
funding programs.
In summary, NCAI urges Congress to pass legislation that invests in
broadband infrastructure development and deployment and increases
access to affordable telecommunications services on Indian lands. \24\
We further recommend that Congress conduct an oversight hearing on
Interior's role in broadband infrastructure build-out in Indian
Country. \25\
C. Housing
Housing infrastructure in Indian Country continues to lag behind
the rest of the United States. Over 70 percent of existing housing
stock in tribal communities is in need of upgrades and repairs, many of
them extensive. \26\ In 2017, The U.S. Department of Housing and Urban
Development (HUD) reported that, ``the lack of housing and
infrastructure in Indian Country is severe and widespread, and far
exceeds the funding currently provided to tribes.'' \27\ The lack of
affordable housing contributes to homelessness and overcrowding. Tribal
communities experience overcrowded homes at a rate of 16 percent,
roughly eight times the national average. \28\ HUD research also shows
that such overcrowding has a negative effect on family health and
contributes to the ongoing problems of domestic violence and poor
school performance in Indian Country. \29\ Funding new construction
across the board will help alleviate issues of overcrowding.
In addition to the historic funding shortfalls, the location of
many tribal communities increases the material and labor costs of home
construction and impose additional housing development costs upon
communities already confronting enormous economic challenges. \30\
Building materials must often be brought into tribal communities from
miles away over substandard roads or even by air, and the availability
of ``qualified and affordable contractors'' is limited. \31\ Given
these extensive funding needs, it is critical that Congress support (1)
reauthorization of NAHASDA; (2) increase funding for the Bureau of
Indian Affairs' (BIA) Housing Improvement Program (HIP); and (3)
permanently reauthorize the Tribal HUD-VASH Program.
i. Reauthorize NAHASDA and Increase Funding for IHBG Formula Grants (FA
Reviewed)
The Native American Housing Assistance and Self-Determination Act
(P.L. 104-330) (NAHASDA), first enacted in 1996, authorized Tribal
Nations to self-determine their housing programs. It gave flexibility
for Tribal Nations to develop, construct and maintain housing for their
members, transforming how federal housing programs addressed housing
needs in tribal communities. NAHASDA consolidated existing housing
funds into a single block grant--the Indian Housing Block Grant
(IHBG)--resulting in tens of thousands of additional housing units
being constructed, as well as increased tribal capacity to address
related infrastructure and economic development challenges. The IHBG is
a formula-based grant that provides certainty and security for long-
term housing and community development. Unfortunately, IHBG has been
mostly level-funded for the past 20 years, failing to even keep pace
with inflation while housing needs continue to increase. \32\
In the 116th Congress, Senator John Hoeven introduced S. 4090: The
NAHASDA Reauthorization Act. S. 4090 proposed to reauthorize NAHASDA
programs through 2031, create an Assistant Secretary for Indian Housing
at HUD, and update several key provisions including: re-establishing a
Drug Elimination program for tribal communities; streamlining
environmental review requirements; allowing housing assistance for
students; recognizing tribal sovereignty to govern maximum rent
requirements; allowing tribal housing programs to access IHS sanitation
funding; tribal eligibility for HUD Housing Counseling and Homelessness
Assistance grants; and reauthorizing Native Hawaiian housing programs.
NCAI strongly urges Congress to reintroduce and pass legislation that
reauthorizes NAHASDA through 2031 \33\ and provides increased funding
appropriations for IHBG formula grants of at least $1 billion to help
address the ongoing housing crisis in Indian Country.
ii. Increase funding for the BIA Housing Improvement Program (HIP)
HIP is a home repair, renovation, replacement, and new housing
grant program administered by the BIA and federally recognized Tribal
Nations for low-income AI/ANs. In 2015, the BIA updated its regulations
and expanded the eligible use of HIP funds to include down payment
assistance for low-income working families seeking to become private
homeowners. \34\ This new activity expands homeownership opportunities
for Native families and allows leveraging of federal housing funds to
increase the number of families served and projects funded.
Additionally, HIP recipients receive BIA funding priority for water and
sewer infrastructure. \35\
Despite the need, the HIP program has undergone funding
fluctuations. It was funded at $23.1 million in 2005 \36\ and then
eliminated from the 2008 budget and not funded again until 2016 at $8
million. The prior Administration proposed the elimination of this
program and it has been funded at a flat rate of $9.7 million in
subsequent years. \37\ For a decade, NCAI has strongly advocated for
restoration of this funding to at least $23 million to address the
substantial unmet housing needs in Indian Country. Accordingly, we
strongly urge the 117th Congress to increase funding for this program
which serves some of the neediest in Indian Country.
iii. Permanently Reauthorize the Tribal HUD-VASH Program Native
veterans have a long history of distinguished service to this
country. Per capita, they serve at a higher rate in the Armed
Forces than any other group of Americans and have served in all
the nation's wars since the Revolutionary War. Native veterans
have even served in several wars before they were even
recognized as U.S. citizens or eligible to vote. Despite this
esteemed service, homelessness is a concern for our Native
veterans. To combat this issue, Congress created the HUD-
Veterans Affairs Supportive Housing (HUD-VASH) program. The
program has been a nationwide success because it combines
rental assistance, case management, and clinical services for
at-risk and homeless veterans. Unfortunately, this program is
not fully available to Native veterans living on tribal lands.
In the 116th Congress, Senator Jon Tester introduced S.257, the
Tribal HUD-VASH Act of 2019. S. 257 would codify and make permanent the
Tribal HUD-VASH program within the larger HUD-VASH program and ensure
adequate funding for the program. In addition, the bill would make all
Tribal Nations and their tribal housing programs eligible for the HUD-
VASH program, which to date has remained limited to the original 26
recipients. The bill would also call on IHS to assist the program as
requested by HUD or the Department of Veterans Affairs (VA).
NCAI has a standing resolution supporting this legislation. \38\
Accordingly, NCAI urges this Committee to pass similar legislation
early in the 117th Congress.
D. Roads and Transportation
The economy and wellbeing of Indian Country are dependent upon
transportation infrastructure. Without safe and well-maintained roads,
bridges, and public transportation, Tribal Nations are unable to
adequately provide essential services to their citizens. Tribal Nations
construct, improve, and maintain transportation facilities that are
used by tribal citizens and surrounding communities alike and require
funding to promote public safety, economic development, and community
wellbeing.
There are approximately 160,000 miles of public roads in the
National Tribal Transportation Facilities Inventory, \39\ placing sole
or shared jurisdictional control over the construction and maintenance
of these facilities with tribal governments. These roads are often the
primary means of access to Native and non-Native residents and visitors
alike. The lack of sufficient transportation infrastructure throughout
Indian Country hampers economic development opportunities for Tribal
Nations and their citizens and increases risks for all motorists who
traverse these roads.
The integrity of the transportation infrastructure systems in
Indian County includes BIA-owned roads and facilities that have a
direct impact on tribal and surrounding non-tribal communities. In
2018, in coordination with the Tribal- Interior Budget Council, the BIA
developed and conducted a road maintenance survey intended to develop
data on road maintenance budget needs. \40\ The road maintenance survey
included both tribal and BIA respondents. The survey found, in part,
that the estimated value of deferred road maintenance for all
respondents was $498 million. \41\ This finding begins to quantify the
chronic underfunding of tribal transportation programs that led to such
a staggering maintenance backlog statistic, and demonstrates the need
for a robust funding solution. It is imperative that federal funding
levels for the Tribal Transportation Program (TTP), Tribal Technical
Assistance Program (TTAP), Tribal Transit Program, and BIA Road
Maintenance Program are increased. For many tribal governments, this
federal funding is the only funding source to improve or maintain road
systems.
i. Address the backlog of BIA Indian Reservation Roads and Bridge
Maintenance
The BIA is responsible for maintaining approximately 29,400 miles
of roads in Indian Country, including 900 bridges. However, funding for
BIA Road Maintenance has remained stagnant for several appropriations
cycles, while deferred maintenance has risen to over $300 million. The
condition of BIA System roads and bridges is increasingly concerning
for tribal citizens and members of surrounding communities.
For FY 2020, $36.06 million was appropriated for BIA Road
Maintenance, and has remained steadily around this amount for prior
fiscal years; meanwhile, the road maintenance need continues to
increase. Additional funding for the BIA Road Maintenance program is
needed to begin to address public safety and commercial activity
concerns that affect tribal communities and surrounding areas.
Congress must increase annual appropriations for the BIA Road
Maintenance Program to address the unacceptable backlog of unmet road
maintenance needs for fair, poor, and failing routes, and structurally
deficient BIA System bridges, especially for school bus routes. NCAI
requests Congress increase the annual funding for the BIA Road
Maintenance Program to $75 million.
ii. Support Elimination of the Obligation Limitation Deduction on TTP
Funds
A limitation is placed on Federal-aid highway and highway safety
construction program obligations to act as a ceiling on the obligation
of contract authority that can be made within a specified time period.
Prior to enactment of the Moving Ahead for Progress in the 21st Century
Act, the TTP program, formerly the Indian Reservation Roads, was exempt
from the obligation limitation and its subsequent deduction. Currently,
the TTP program is subject to the Federal Obligation Limitation and
shares in a rescission of funding each year, while other programs
remain exempt. Federal obligation imitation deductions on TTP funds can
be in excess of $50 million in a single year. Even with the $10 million
annual increases in funding under the Fixing America's Surface
Transportation Act, after the federal obligation limitation deduction,
it was one step forward and five steps back in funding each year,
against a tribal infrastructure landscape that is crumbling in places
and non-existent in others. These rescinded funds due the Federal
Obligation Limitation are desperately needed to maintain the safety and
condition of transportation facilities used by Native and non-Native
citizens alike. During the 116th Congress, surface transportation
reauthorization in the Senate included many desperately needed
reauthorization solutions for tribal transportation, including the
entirety of S. 1211, the Addressing Underdeveloped and Tribally
Operated Streets Act that was voted out of this Committee during the
116th Congress. However, only the House included a solution to
eliminate the Federal Obligation Limitation on TTP funds as part of its
surface transportation reauthorization effort during the 116th
Congress. \42\ SCIA must advocate with the Senate Committee on
Environment and Public Works and the rest of the Senate to include a
solution to the devastating recessionary effects of the obligation
limitation deduction on TTP funds.
III. Appropriations and Data
A. Support Advance appropriations for IHS and DOI Indian Affairs
Delays in federal funding have an outsized impact on the daily
lives of tribal citizens who already face underfunding of healthcare
and education, and backlogs in physical infrastructure--all of which
fall under the federal government's treaty and trust obligations to
Tribal Nations. Authorizing advance appropriations for BIA, the Bureau
of Indian Education (BIE), and IHS is a solution to the issue of
delayed funding. Advance appropriations are an agreement to fund
certain programs at a set amount in advance of when that funding is
made available. These advance appropriations do not become available
until the fiscal year they are designated to fund and can be modified
to reflect changing conditions that may need revised appropriations at
a later date. Advance appropriations are budget neutral and potentially
flexible funds that help entities and programs manage specific planning
concerns while insulating against the outsized effects of federal
funding uncertainty on tribal governments and communities. In the 116th
Congress, legislation was introduced authorizing advance appropriations
for certain BIA, BIE, and IHS accounts with bipartisan and bicameral
support. This common sense solution to an outsized problem for Indian
Country must be introduced and enacted during the 117th Congress, and
it must include all Indian Affairs and IHS accounts in order to achieve
the basic stability and certainty that is owed to Tribal Nations by the
federal government.
B. Federal Data Deficiencies for Tribal Programs
The federal government does not collect the data necessary to
measure unmet programmatic obligations across tribal programs. As a
result, any measure of progress for tribal programs is arbitrarily
compared to historical budgets that are documented as underfunded and
insufficient to meet the trust and treaty obligations of the federal
government to Tribal Nations and their citizens. Failure to collect
this data and put forward a needs-based budget directly harmed Tribal
Nations during legislative COVID-19 relief negotiations because Tribal
Nations were often asked to supply data that documented the extent of
unmet needs, and tribal relief asks were compared against chronically
underfunded annual appropriations. Certain unmet obligations
assessments have been completed, such as the annual BIA report to
Congress required under the Tribal Law and Order Act. However, these
efforts are limited in scope and fundamentally affected by the quality
of data that goes into such estimates. This Committee must work with
Congress to require all federal departments or agencies with tribal
programs to include an annual estimate of the cost to fully fund the
responsibilities of each tribal program within the department or
agency. Each program estimate should include a detailed explanation of
the methodology and underlying data relied on to provide such
estimates. Each methodology must be developed in consultation and
collaboration with Tribal Nations. The estimates must also identify
data deficiencies that limit accuracy and provide a plan for remedying
those deficiencies.
C. Empower Tribal Governments to Collect and Certify Their Own Data for
use by the Federal Government
More than four and a half decades of self-determination and self-
governance in federal Indian policy have clearly and repeatedly
demonstrated that empowering Tribal Nations is a fiscally responsible
and effective use of funds providing government services to AI/ANs. The
federal government has tribal data deficiencies, and the solution must
be collaboratively developed and maintained by tribal and federal
partners working together. Tribal governments enter into annual funding
agreements to operate federal programs and are good financial stewards
of the funds they receive. Providing resources to tribal governments to
collect and certify certain data consistent with any negotiated funding
agreements in place could allow for improvements in federal data and
tribal program outcomes, as well as certain mutual assurances that the
data, once received by the federal government, will not be misused.
D. Enact Strict and Consistent Confidentiality Requirements on all
Tribal Data Collected by the Federal Government, Including
Restrictions on Internal use and Transfer of Tribal Data
Between Agencies and Penalties for Misuse
Government actions are often data-driven and certain information is
critical to allocate spending for tribal programs. Unfortunately, the
unauthorized public release of tribal data during the Coronavirus
Relief Fund (CRF) implementation renewed tribal distrust and skepticism
in the federal government's collection and use of tribal data. Even
without a data leak, datasets taken out of context (such as NAHASDA-
certified Census Bureau data used by the Department of the Treasury for
CRF allocations to tribal governments) \43\ confuse specific
jurisdictions for federal programs and can substantially distort real
conditions in tribal communities. Administrative guardrails and
protections must be developed in consultation and collaboration with
Tribal Nations to restore faith in the federal government as partner
and as trustee. These measures would provide express assurances to
tribal governments that the United States has a fiduciary obligation to
safeguard and properly use tribal data that is collected for
fulfillment of its federal trust and treaty responsibilities. Simply
put, it is a fundamental matter of government-to-government trust.
E. Move Contract Support Costs and Payments for Tribal Leases from
Discretionary to Mandatory Spending
The Indian Self-Determination and Education Assistance Act (ISDEAA)
requires the Secretary of the Interior and the Secretary of Health and
Human Services (HHS) to pay Tribal Nations the funding associated with
federal programs and Contract Support Costs (CSC), which are the
administrative and overhead costs of running the programs. The
Secretaries of Interior and HHS must also enter into leases with Tribal
Nations or eligible tribal organization for facilities used to
administer and deliver services under the ISDEAA. Appropriations
Committees have repeatedly stated in explanatory statements that
obligations of this nature are typically addressed through mandatory
spending, but since they fall under discretionary spending, they impact
other discretionary programs. Appropriating CSC and Payments for Tribal
Leases on a mandatory basis would solve this problem once and for all
by bringing the appropriations process into line with the clear legal
requirements of the authorizing statute. A simple amendment to a
permanent appropriations statute could solve these decades-long funding
dilemmas. At no net cost, the government would avoid liability, protect
Indian programs, and honor tribal contracts.
IV. Health and Education
A. Health
The federal government's obligation to provide healthcare was
prepaid by Tribal Nations. The United States assumed this
responsibility through a series of treaties with Tribal Nations,
exchanging compensation and benefits for Tribal Nations' land and
resources, and to obtain peace. Despite these obligations, AI/ANs have
long experienced significant health disparities when compared to other
Americans. To minimize these disparities NCAI calls on the Senate to
ensure the following priorities are addressed during the 117th
congress.
i. Address Tribal Health Infrastructure
The public health infrastructure crisis across Indian Country has
its roots in the historic underfunding of the federal government's
fiduciary responsibility to Tribal Nations. The most recent IHS report
submitted to Congress on IHS and tribal health care facilities reported
that the unmet need for IHS facilities is over $10 billion. Underfunded
facilities coupled with inadequate water and sanitations systems, and
outdated electronic health record systems creates a less than ideal
health environment and negatively impacts the social, physical, and
mental wellbeing of tribal and neighboring communities.
The Broken Promises Report found that inadequate health facilities
is one correlating factor in AI/ANs having ``life expectancies that are
5.5 years shorter than the national average.'' \44\ Currently, the
average age of an IHS hospital is greater than 37 years compared to 10
years for mainstream hospitals. \45\ Further, the federal government
spends just $35 per capita on IHS facilities, compared to $374 per
capita for the nation as a whole. \46\ This disparate funding has
resulted in the square footage of IHS health care facilities being at
only 52 percent for the populations it is intended for. \47\ Given that
AI/AN populations are rapidly growing, Congress must have the courage
to address this issue head on by appropriating large amounts of funding
to address the backlog of need and build for the future.
In addition to physical infrastructure, updating IHS's current
Electronic Health Records (EHR) systems is an urgent priority.
Currently, in various tribal communities patients are forced to hand
carry their medical records with them when seeing a clinician so they
can guarantee their service provider has the resources needed to make
informed medical decisions. Implementing a well thought out EHR system
can address many issues and results in health professionals being able
to make better informed decisions about their patients, reduce medical
errors, and coordinate closer with other medical sites. NCAI is
grateful for the emergency funding provided within COVID-19 emergency
legislation to improve tribal EHR; however, in order to make
substantial upgrades to the current system, Congress must commit to
providing dedicated and sustainable funding. That said, NCAI urges
members of this committee to introduce and pass legislation for
dedicated funding to ensure tribal health systems are not left further
behind in the nation's transition to electronic health systems.
Additionally, the Broken Promises Report highlighted the
underfunding of water sanitation programs within tribal communities,
citing the estimated need of $2.8 billion to provide safe drinking
water and adequate sewage systems for all Native homes. \48\ Lack of
safe drinking water and inadequate sanitation systems has made it
nearly impossible for many AI/AN communities to abide by CDC's
sanitation and hygiene standards during the current COVID-19 health
emergency. In the 116th Congress, S. 4168 was introduced by Senator
Kristen Sinema. S. 4168 would have dedicated funding in the amount of
$1.335 billion each year for the period of fiscal years 2020 to 2024.
Last year, NCAI passed #PDX-20-017, ``Calling for Increased Funding for
Health Care and Sanitation Infrastructure for American Indian and
Alaska Native Tribal Nations.'' \49\ Accordingly, NCAI supports efforts
like S. 4168 and requests that Congress enact legislation to address
tribal sanitation needs.
ii. Address Mental and Behavioral Health and Addiction in Indian
Country
The high rates of behavioral health challenges among AI/AN people
creates an urgency for Tribal Nations, Congress, and federal agencies
to partner in a manner that seeks to improve the health and well-being
of all AI/AN people. Currently, Tribal Nations struggle to address
challenges like mental health, due to an inability to implement federal
programs in a flexible manner that ensures such programs reflect
community values and use proven methods for addressing complex issues.
When Tribal Nations can fully adjust programs and incorporate their
individual community values there has been success in increased
participatory engagement and behavioral health challenges have
decreased.
NCAI supports the re-introduction and passage of this legislation
and in 2012 passed Resolution SAC-12-054, ``Increase Funding for
Prevention of Methamphetamine and Suicide in Indian Country.'' \50\
Accordingly, NCAI requests Congress include Tribal Nations in
additional mental health legislation to support effective and
culturally appropriate tribal responses to the opiate epidemic and
addiction crisis in tribal communities.
iii. Expanding Telehealth Services
In addition to reducing risk from COVID-19, telehealth expands care
to those who may live far away from an IHS or tribal facility. During
the COVID-19 pandemic, the Centers for Medicare and Medicaid in
partnership with Congress enacted waivers to, among other things,
support the expansion of telehealth to protect public health and
deliver care to distant populations. This has been instrumental in
ensuring the safety and wellbeing of our tribal communities and should
be extended and expanded upon once the pandemic is over.
Additionally, while Indian Country is grateful for the waivers that
have been given, the disparity between the rates that CMS pays for in-
person and telehealth service have still yet to be addressed and will
not encourage the use of telehealth in the future. Currently, in-person
medical services are paid at the OMB/IHS All Inclusive Rate, which is
$479 per visit in the lower 48 states and $710 in the State of Alaska.
\51\ Unfair to tribal Federal Qualified Health Centers using telehealth
services, CMS's reimbursement rate for the same medical appointment via
telehealth is only $92.03 per visit. \52\ NCAI supports the Tribal
Technical Advisory Group to the Center for CMS that, ``Given their
unique history and reimbursement methodology, that directive should not
apply to Tribal FQHCs, which should instead be reimbursed for the
service at the same All Inclusive Rate that applies for patients seen
on site.'' \53\ Accordingly, NCAI urges this committee to support the
expansion of the existing telehealth waivers, allow payment disparities
to be retroactive to the start of the Public Health Emergency and to
make sure Tribal Nations are receiving the resources needed to provide
care to their patients. In addition, NCAI supports making these
expanded waivers permanent so that our tribal health systems can
develop this method of care to increase services to AI/ANs after the
pandemic ends.
B. Education
Native students have faced and continue to face obstacles both
inside and outside the classroom. We know that the challenges Native
students face are significant, but we also know that Native students
can succeed, and Native education can improve. Tribal Nations across
the country have partnered with state and local jurisdictions to
establish innovative programs that recognize the unique cultural and
educational needs of Native students. In these areas, Native students
are thriving, graduating, and are ready to lead in their communities
and beyond. In order to provide Tribal Nations and our Native students
the education they deserve, NCAI calls on Congress to address the
following:
i. Address Crumbling School Infrastructure with Innovative Solutions
Schools operating within the BIE system are woefully outdated and,
in some cases, dangerous for students and staff. At the end of FY 2019,
BIE reported 71 schools in poor condition, \54\ which puts Native
students at a significant, unfair learning disadvantage. The current
cost as estimated by Interior's Office of Inspector General for
replacing or rehabilitating BIE school facilities exceeded $4.6
billion. \55\ Further, Interior identified $629 million in deferred
maintenance for BIE-funded education facilities and $86 million in
deferred maintenance for BIE educational quarters. \56\ To begin to
address this issue, Congress passed H.R. 1, the American Recovery and
Reinvestment Act (ARRA) of 2009, allocating $200,000,000 for calendar
year 2009 and $200,000,000 for calendar year 2010 in tax credit bonds
for purpose of construction, rehabilitation, and repair of schools
funded by the BIA.
While this funding was appreciated, no Tribal Nations were able to
use the ARRA tax credit bonds due to a lack of capital outlay and an
escrow account to support the issuance of school modernization bonds.
Tribal Nations recognize the need for adequate school facilities for
students in their communities and have been working with the
Administration and Congress to come to solutions for alternative school
construction funding options under existing statutory authority. Some
Tribal Nations have discussed and even developed a school construction/
lease-back proposal whereby the community takes over the school design
and construction function, and, when completed, leases the facility
back to Interior. While this is a great solution for Tribal Nations
that have the resources and capital to complete school design and
construction, additional innovative solutions must be made. Therefore,
NCAI urges this committee work with Tribal Nations to develop
additional innovative models of funding for BIE school construction and
related infrastructure, provided that new funding sources or methods
must supplement and not supplant existing funding methods. Further,
NCAI calls on members of this Committee to support increased funding
levels as requested in NCAI's FY 2022 Budget Book to address this
critical need.
ii. Support Native Languages
The survival of our Native languages is essential to the success of
tribal communities and way of life. However, without urgent and
sustained intervention, far too many Native languages risk extinction.
According to the United Nations Educational, Scientific and Cultural
Organization, 74 Native languages will disappear within the next decade
if we don't take significant action. \57\ This has been exacerbated by
COVID-19, which has had a devastating toll on the lives of our Native
elders who are often our communities' last fluent speakers.
In the 116th Congress, S. 4510, the Native American Language
Resource Center Act was introduced by Senator Brian Schatz. This
legislation would create grants for our institutions of higher
education to establish, operate, and staff a Native American language
resource and training center, which would improve the capacity to teach
and learn Native American languages. NCAI urges this Committee to pass
similar legislation early in the 117th Congress to help provide the
resources needed to protect our Native languages for the next
generation.
iii. Support for the Creation of Native Community-Based Curricula
Development
Native Americans are unfortunately invisible to many. Most
Americans likely have attended or currently attend a school where
information about Native Americans is either completely absent from the
classroom or relegated to brief mentions, negative information, or
inaccurate stereotypes. This results in an enduring and damaging
narrative regarding Native peoples, Tribal Nations, and their citizens.
Even though some exceptional efforts are happening around the
country to bring accurate, culturally responsive, tribally specific,
and contemporary content about Native Americans into mainstream
education systems, much work remains to be done. Therefore, NCAI urges
Congress to introduce legislation to support community-based curricula
development. Giving Tribal Nations and tribal organizations the
resources they need to create culturally responsive curriculum will
make it more likely that states implement and require our history, told
accurately, be included in public school systems.
V. Economic Development
In 2018, the USCCR documented the dire socio-economic conditions in
Indian Country with its Broken Promises Report, which found that:
Indian Country faces many economic development challenges.
Over 25 percent of Native Americans live in poverty, which is
higher than the poverty rate of any other racial group in the
U.S. For Native Americans living on reservations, the
unemployment rate is around 50 percent and for certain
reservations, the average unemployment rate is much higher,
hovering around 80 percent and up. \58\
The current COVID-19 pandemic has especially highlighted Indian
Country's need for increased investments in infrastructure, housing,
education, healthcare and broadband. Despite these unmet needs, few
federal programs exist that provide stable funding to fulfill this
trust responsibility and Tribal Nations encounter difficulty accessing
credit to fund these development needs through lending institutions
which currently have very little incentive to extend credit and capital
services onto tribal lands. Capital barriers particularly impact tribal
governments because dual taxation leads Tribal Nations to rely more
heavily on tribal enterprises that require access to credit services to
support these enterprises. Addressing dual taxation and access to
capital are essential to federal trust responsibility to support the
development of tribal economies.
A. Addressing the Effects of Dual Taxation on Tribal Economies
Congress has trust and treaty responsibilities to ensure federal
tax policy affords Tribal Nations the same opportunities as other
governments to provide for their citizens. The ISDEAA formally
committed the United States to supporting tribal self-determination and
self-governance, as embodied in the following passage:
The Congress declares its commitment to the maintenance of the
Federal Government's unique and continuing relationship with, and
responsibility to, individual Indian tribes and to the Indian people as
a whole.In accordance with this policy, the United States is committed
to supporting and assisting Indian tribes in the development of strong
and stable tribal governments, capable of administering quality
programs and developing the economies of their respective communities.
\59\
Like all sovereigns, Tribal Nations need revenues to fund
governmental services and public goods. The Supreme Court, in Merrion
v. Jicarilla Apache Tribe, held that ``the power to tax is an essential
attribute of Indian sovereignty because it is a necessary instrument of
self-government and territorial management.'' \60\ Despite the Supreme
Court's recognition of tribal taxation authority, taxation of economic
activities on tribal lands is often subject to attempts by state and
local governments to tax the same economic activity, which results in
complex, confusing, and unpredictable rules. This dual taxation creates
disincentives to invest in businesses on tribal lands and results in
Tribal Nations often foregoing their inherent right to tax in order to
retain private investment on their lands. This forfeiture of critical
revenue contributes to the distressed economic conditions that exist on
many tribal lands. Indian Country has long pursued solutions \61\ to
dual taxation and in November 2020 passed NCAI Resolution #PDX-20-013,
entitled Calling Upon Congress to Support the Modernization of Federal
Indian Traders License Statute and Regulations in Keeping with the
Indian Self Determination Policy. Accordingly, NCAI urges Congress to
consider legislative action to address dual taxation on tribal lands.
VI. Cultural Heritage and Lands
A. Cultural Heritage
The protection and preservation of Native American religious
practices, customs, sacred and cultural places, and items of patrimony
is a priority for Tribal Nations. Existing federal law has resulted in
the limited repatriation of ancestral remains, cultural items, and some
safeguards for sacred places. \62\ Legislation, however, is needed to
increase protections of tribal cultural and religious practices, sacred
places, and items of patrimony and to prevent the export and sale of
sacred items in foreign auctions. \63\
i. Improve Domestic Legislation to Better Protect Native American
Cultural Patrimony and Ancestral Remains
In the 30 years since the passage of the Native American Graves
Protection and Repatriation Act (NAGPRA), many ancestors and sacred
items have been returned to their homelands. For all the success of
NAGPRA, more needs to be done. For example, approximately 117,000
ancestral remains have yet to be repatriated and Tribal Nations have
little recourse when the statute is violated despite the existence of
civil penalties. \64\ Congress can address these continuing issues by
improving NAGPRA with the following amendments.
Creating mechanisms that support private citizen efforts to
return items of Native American cultural heritage; \65\
Increasing the penalties for violations and non-compliance by
institutions in possession of Native American ancestral remains
and ensure adequate enforcement mechanisms; \66\
Amend NAGPRA to ensure the definition of ``Native American''
matches the intent of the law. \67\
With respect to the last bullet, in Bonnichsen v. United States,
367 F.3d 864, at 879-882 (9th Cir. 2004), the Ninth Circuit found that
the remains of Techaminsh Oytpamanatityt (Ancient One), or Kennewick
Man, were not ``Native American'' within the meaning of NAGPRA and
therefore could not be repatriated. \68\ In doing so, the court
inappropriately narrowed the definition of ``Native American.''
Congress should amend the definition of Native American in NAGPRA to
read as follows: ```Native American' means of, or relating to, a tribe,
people, or culture that is or was indigenous to any geographic area
that is now located within the boundaries of the United States.''
ii. Prevent the Export of Tribal Objects of Cultural Patrimony
NAGPRA was a monumental piece of a legislation \69\ that resulted
in the return of many ancestral remains and sacred items and items of
cultural patrimony. However, Tribal Nations cannot prevent the export
of these items to foreign countries or take advantage of international
treaties, to which the United States is a party, to facilitate their
return from foreign countries. Congress can address this issue by
passing the Safeguard Objects of Tribal Patrimony (STOP) Act.
Originally introduced in the 115th Congress (S. 1400), and again in the
116th (S. 2165), this bill would prohibit the export of Native American
items of cultural patrimony obtained in violation of current federal
law, increase the penalties for such acts, and facilitate inter-
governmental coordination to expedite the return of already exported
items from foreign countries to their tribal homelands. NCAI requests
that Congress re-introduce and enact the STOP Act during the 117th
Congress. \70\
B. Lands
Federal, state, and private lands are carved from the ancestral
territories of Tribal Nations. Between 1776 and 1887, Tribal Nations
lost approximately 1.5 billion acres of their homelands; \71\ between
1887 and 1934 Tribal Nations lost another 90 million acres as a result
of federal policies. \72\ Through its acquisition of tribal lands and
resources, the United States formed a unique political relationship
with Tribal Nations. This relationship is enshrined in the U.S.
Constitution, \73\ treaties, statutes, \74\ Supreme Court decisions,
\75\ and executive orders \76\ and recognizes the United States'
fiduciary obligation to safeguard tribal lands. \77\
Through passage of the Indian Reorganization Act of 1934 (P.L. 73-
383) (IRA), Congress repudiated the devastating policy of allotment,
which impoverished tribal communities by causing the loss of 90 million
acres of tribal homelands. \78\ Importantly, the IRA provides for the
recovery of tribal homelands and imposes a duty on the Secretary of the
Interior, as trustee for Tribal Nations, to take land into trust for
the benefit of these nations. The IRA also prohibits the creation of
classes of Tribal Nations.
The IRA was a recognition that tribal homelands--whether within or
outside current reservation boundaries--remain the heart of tribal
governance, economies, healthcare, education, public safety and justice
services, employment, and the protection of cultural and natural
resources. Presently, Tribal Nations encounter significant barriers in
the restoration of their homelands administratively and the management
of resources within their ancestral territories which impact tribal
treaty, trust, subsistence, and cultural rights and needs. To address
these impediments, Tribal Nations have the below priorities.
i. Support the Restoration of Tribal Homelands and Pass a Clean
Carcieri Fix
On February 24, 2009 the Supreme Court held in Carcieri v. Salazar,
129 S.C. 1058 (2009) that the Secretary of the Interior lacked
authority to take land into trust under Section 5 of the IRA for Indian
tribes that were not under federal jurisdiction at the time of the
Act's passage in 1934. Since the 111th Congress, \79\ Members of SCIA
have either co-sponsored or introduced legislation to ``fix'' the
Supreme Court's flawed decision. Most recently, during the 116th
Congress, Senator Jon Tester (D-MT) introduced, S. 2808, a simple
bipartisan amendment to the IRA that would undo the damage Carcieri v.
Salazar has inflicted on Indian country. The amendment would (1)
restore the Interior Secretary's authority to take land into trust for
all federally recognized Tribal Nations; and (2) re-affirm existing
trust lands. NCAI strongly supports passage of a clean Carcieri fix in
the 117th Congress. \80\
ii. Protect Tribal Homelands and Sacred Places including View Sheds and
Soundscapes
Congress must continue to support tribal management and co-
management of their traditional homelands. Last Congress, S. 3019, the
Montana Water Rights Protection Act was passed as part of H.R. 133, the
Consolidated Appropriations Act of 2021, and restored the National
Bison Range to the Confederated Salish and Kootenai Tribes (CSKT) and
returned management of the range to the CSKT. Importantly, the bill
recognized that CSKT like many Tribal Nations have an extensive history
of successful partnerships with Federal agencies with respect to the
management of lands and resources. When Tribal Nations have the ability
to make culturally appropriate management decisions about their
homelands and natural resources they bring health, cultural, and
economic benefits to their citizens and surrounding communities.
Accordingly, we request that Congress support legislation that:
Meaningfully integrates Tribal Nations into federal land
management planning, practices, and decisionmaking and provides
consultation enforcement mechanisms; \81\
Supports tribal co-management of federal lands by expanding
existing authorities such as tribal assumption of federal
responsibilities through self-governance compacts and self-
determination contracts and enhance protections and tribal
management for their sacred places; \82\
Meaningfully incorporate tribal expertise and Traditional
Knowledge, with protections, into the federal decisionmaking
process, including deference to tribal decisionmaking regarding
trust and treaty resources. \83\
Tribal homelands remain the foundation to tribal governance.
Management of tribal traditional homelands, including those within
federal public lands, must be holistic, inclusive and incorporate the
fundamental principles and practices of tribal co-management. This
approach will unite the expertise of diverse perspectives to build a
participatory framework that will benefit everyone. Congress must
uphold its fiduciary obligations to work in partnership with Tribal
Nations to protect and preserve their homelands.
VII. Climate Change and Energy
A. Climate Change
The cultures, traditions, lifestyles, communities, foods, and
economies of Tribal Nations are often dependent upon natural resources
that are disappearing faster than they can be restored because of
dramatic shifts in weather and climate. \84\ As such, they are
disproportionately affected by even incremental environmental changes.
\85\ Tribal Nations are at the front lines of the climate crisis
responding to sea level rise, coastal erosion, ocean acidification,
increased frequency and intensity of wildfires, extended drought, and
altered seasonal duration. \86\ These weather events have dramatic
impacts on traditional cultural and subsistence practices and sacred
places, tribal fisheries, timber harvesting and agricultural
operations, eco-tourism, and infrastructure. \87\ Despite these
challenges, Tribal Nations are leading the way in climate action
mitigation, adaptation, and resiliency responses for their communities
and are integral to the global and national responses to the climate
crisis. \88\
Tribal Nations have the following, non-exhaustive list of
priorities and goals for Congressional climate responses:
Legislation must include full and meaningful consultation
with decision makers that requires Tribal Nations' free, prior,
and informed consent and includes enforcement mechanisms; \89\
Tribal Nations must be integrated into Congressional and
Executive Branch climate planning, including on federal climate
committees and working groups; \90\
Restoring tribal land, water, wildlife and fisheries
resources is critical to tribal climate responses. This
includes identification and assessment of the full cost of
climate impacts on Tribal Nations; \91\
Co-management opportunities should be created and furthered
to support intergovernmental partnerships and integrate tribal
traditional knowledge in climate responses.
Any inclusion of Traditional Ecological Knowledge must be
conditioned on Tribal Nations' free, prior, and informed
consent; \92\
Tribal Nations must be included in climate financing action
through increased appropriations, grants, public-private
financing opportunities, and removal of barriers to tribal
climate responses, including competitive grants and matching
fund requirements.
Financing climate mitigation and adaptation measures must be
comprehensive and support a wide range of climate-related
activities, including wildfire management, coastal restoration,
drought resiliency, and for the development and repair of
tribal infrastructure.
Financing must also be flexible and responsive to tribal
needs and decisionmaking, and national efforts towards a
carbon-neutral economy must ensure that the socio-economic
needs of tribal energy producers are addressed. \93\
Any federal assistance provided to state and local
governments should also be provided to tribal governments
through tribal-specific funding mechanisms.
Interior's Tribal Resilience Program is an important mechanism
providing funding for projects that support tribal climate resilience
and incorporate science, including Traditional Knowledge, into our
climate approaches. Appropriations for this program fall short of the
need. Congress should support doubling the current funding levels,
increasing funding caps across all application categories, and expand
the project funding beyond the current 2-year limitation. \94\
Tribal Nations have the solutions to the climate crisis and we
request that SCIA support legislation in the 117th Congress that
incorporates the above tribal principles.
B. Energy
Tribal energy resources are vast, largely untapped, and critical to
America's efforts to achieve energy security and independence, reduce
greenhouse gases, and promote economic development for both Indian
Country and the United States as a whole. These resources include: one
quarter of the nation's on-shore oil and gas reserves, one-third of the
nation's western low-sulfur coal, \95\ almost 3.5 percent of the
nation's wind energy, and approximately five percent of the nation's
total solar energy potential. \96\
Despite the energy potential in Indian Country, Tribal Nations face
many challenges, including that approximately 14 percent of homes on
reservations lack access to electricity \97\ and unique federal laws,
regulations, and policies create additional burdens for energy
development on tribal lands. \98\ Given the historic, social, and
economic impediments Tribal Nations and citizens face, and the
relatively short time in which they have been involved in energy
development, the successes of Indian Country are clear indicators of
future potential. Tribal Nations have several energy related priorities
for the 117th Congress.
First, Tribal Nations need assistance financing energy development
through use of tools such as loans, grants, and technical assistance.
\99\ For example, Interior's IEED Indian Loan Guarantee Program (ILGP)
promotes tribal renewable and conventional energy development and
mineral resource development for the purposes of economic development.
IEED is responsible for many creative and successful initiatives that
encourage energy resource development on tribal lands, spur economic
and business development assistance and training, expand job and skills
training opportunities, and leverage limited federal funding to provide
access to capital for business development. However, there is a strong
need for additional appropriations. With additional funding, the
program could develop additional tribal capacity in managerial and
technical capabilities, develop resource integration projects, and
establish and maintain environmental programs in support of economic
development. This program should be funded at a minimum of $25 million.
Relatedly, Interior needs additional resources to enter into and
help implement Tribal Energy Resource Agreements (TERAs). Tribal
Nations can, and should, play a role in regulating the energy services
industry on their lands and TERAs would assist in that endeavor.
Without this authority, Tribal Nations, tribal citizens, and tribal
enterprise utility customers located on tribal lands are, in effect,
subject to state regulatory practices and decisions that have
substantial impacts on energy development on tribal lands. \100\ To
this end, Tribal Nations should not be subject to non-statutory funding
eligibility requirements. These demands are a barrier to tribal
participation in energy development funding programs and stifle Indian
country's energy potential. \101\
Finally, any energy-related legislation must include principles of
parity and meaningful tribal consultation. This is critical since
Tribal Nations must have the opportunity to provide their energy
resources in an open market. Doing so will assist Tribal Nations and
America in addressing critical energy needs. \102\
With respect to consultation, Tribal Nations are best suited to
make culturally and economically relevant decisions about the
development and use of their energy resources. As such, Tribal Nations
must be fully and meaningfully consulted with respect to the
development of their energy resources. This includes both on and off-
reservation development of energy resources that impact tribal
interests. \103\
Despite the energy potential in Indian Country, Tribal Nations face
many challenges, including underfunding, and unique federal laws,
regulations, and policies that apply to energy development on tribal
lands. Investing in and empowering Tribal Nations provides strong
returns and outcomes for tribal and rural communities.
VIII. Public Safety
Tribal communities continue to be plagued by the highest crime
victimization rates in the country. A recent study by the National
Institute of Justice found that more than four in five AI/AN adults
have experienced some form of violence in their lifetime. \104\ Among
AI/AN women, 55.5 percent have experienced physical violence by
intimate partners in their lifetime, and 56.1 percent have experienced
sexual violence. \105\ The study also found that 90 percent of these
victims were victimized by a non-Indian perpetrator. \106\ The
complicated jurisdictional framework at play in Indian Country, which
limits tribal authority to prosecute non-Indians, continues to
undermine safety for victims of violence in tribal communities. Tribal
Nations are the only governments in America whose authority to protect
their communities from domestic and sexual violence, child abuse,
stalking, and trafficking is limited by federal law based on the
political status/race of the defendant.
Seven years ago, when Congress passed VAWA 2013, it included a
provision that reaffirmed the inherent sovereign authority of Tribal
Nations to exercise criminal jurisdiction over certain non-Indians who
violate qualifying protection orders or commit domestic violence
against AI/AN victims on tribal lands. However, victims of sexual
violence, stalking, and trafficking, and AI/AN children and elders were
left out. The limited scope of the federal law also leaves Tribal
Nations unable to prosecute when a non-Indian domestic violence
offender assaults a tribal law enforcement or corrections officer.
These victims need the same protections that were extended to adult
domestic violence victims in VAWA 2013.
NCAI calls on Congress to reauthorize VAWA in the 117th Congress
with key provisions addressing tribal jurisdictional issues such as
those included in the Justice for Native Survivors of Sexual Violence
Act and the Native Youth and Tribal Officer Protection Act, both of
which have received bi-partisan support in this Committee in the past.
These bills aim to reaffirm tribal jurisdiction over non-Indians for
certain crimes involving children and elders, sexual violence,
stalking, sex trafficking, obstruction of justice, and assaults against
law enforcement and corrections personnel. VAWA reauthorization
legislation must also include provisions aimed at improving the
response to cases of missing and murdered AI/AN women; create a pilot
project for Alaska Tribal Nations to exercise criminal jurisdiction;
and clarify that Tribal Nations in Maine are able to implement the VAWA
2013 jurisdiction provisions. NCAI through resolution ECWS-19-005
strongly supports these provisions, \107\ which passed the House with
bipartisan support in the 116th Congress.
In addition to addressing the jurisdictional gaps left open by VAWA
2013, we urge the Committee to prioritize reauthorization of the Tribal
Law & Order Act (TLOA), which expired in 2015. TLOA is a comprehensive
law designed to improve numerous facets of the public safety system in
Indian Country. Tribal Nations have identified a number of areas where
the law needs to be strengthened, and past reauthorization legislation
has enjoyed bi-partisan support from this Committee.
A. Emergency Response
Since the COVID-19 pandemic began, only 15 percent of Tribal
Nations (91 Tribal Nations) have been able to access the billions of
COVID-19 disaster funds through the Federal Emergency Management Agency
(FEMA). \108\
On July 1, 2020 this Committee hosted an oversight hearing with the
FEMA Region IX Administrator to address these issues, yet the
roadblocks continue to persist. \109\ In 2020, NCAI passed resolution
PDX-20-066 calling on Congress to hold oversight hearings on FEMA's
response to Tribal Nations during the COVID-19 pandemic and ensure that
Tribal Nation perspectives are included in all FEMA COVID-19 after
action reports. \110\ NCAI now also calls on SCIA to hold oversight
hearings to highlight and identify the roadblocks that Tribal Nations
face when trying to access lifesaving resources through FEMA. We then
ask this Committee to advance legislation that removes those roadblocks
and ensures that disaster resources actually reach tribal citizens in
Indian Country.
IX. Strengthen Services for Indian Children by Reauthorizing the Indian
Child and Family Violence Protection Act
The Indian Child Protection and Family Violence Prevention Act
(P.L. 101-630) (ICPFVPA) was enacted to fill funding gaps in tribal
child welfare services--specifically child abuse prevention, child
protection, and child abuse treatment--and to ensure better
coordination between child welfare and domestic violence programs.
Child abuse prevention funding is vital to the wellbeing and stability
of AI/AN communities. Beyond the emotional trauma that maltreatment
inflicts, victims of child abuse are more likely to require special
education services, enter the juvenile and criminal justice systems,
have long-term mental health needs, and have lower earning potential
than their peers. \111\ Financially, child maltreatment costs tribal
communities and the United States $210,012 per victim. \112\
Tribal Nations, like states, need adequate resources to effectively
prevent and respond to child abuse and neglect in their communities.
However, unlike states, Tribal Nations do not have meaningful access to
Health and Human Services Child Abuse Prevention and Treatment Act
Program (CAPTA) grant programs. The programs authorized under ICPFVPA
were created to fill this gap, however without reauthorization and
appropriations, Tribal Nations are left without funding for child
protection and child abuse prevention services. In the 116th Congress,
Representatives Reuben Gallego and Paul Cook introduced the Native
American Child Protection Act (H.R. 4957) to reauthorize and fully fund
the ICPFVPA. The bill passed the House with bipartisan support. NCAI
supports re-introduction of this legislation and requests that SCIA
members support the swift passage of this legislation to strengthen
lifesaving services for Indian children.
X. Conclusion
NCAI appreciates the opportunity to present Indian Country's
priorities for the 117th Congress to the Committee. We look forward to
working with the Indian Affairs Committee and its members during this
Congress to advance the interests of Tribal Nations in accordance with
the federal trust responsibility.
ENDNOTES
1 U.S. Commission on Civil Rights, Broken Promises: Continued
Federal Funding Shortfall for Native Americans (Broken Promises
Report), usccr.gov/pubs/2018/12-20-Broken-Promises.pdf.
2 Coronavirus Resource Center, COVID-19 United States Cases by
County, Johns Hopkins University of Medicine, coronavirus.jhu.edu/us-
map.
3 NCAI, Executive Council Winter Session (ECWS) Legislative One-
Pager, Upholding the Treaty and Trust Obligations Through Improved
Federal Budgets for Indian Country, ncai.org/conferences-events/ncai-
events/FINAL 2021 ECWS Days One Pager-Budget.pdf ;NCAI ECWS Legislative
One-Pager, Climate Change and Energy, ncai.org/conferences-events/ncai-
events/FINAL 2021 ECWS Days One Pager-Climate Energy--.pdf; NCAI ECWS
Legislative One-Pager, Addressing the COVID-19 Pandemic In Indian
Country ncai.org/FINAL 2021 ECWS Days One Pager-DHS.pdf; NCAI ECWS
Legislative One-Pager, Investing in Tribal Infrastructure, ncai.org/
conferences-events/ncai-events/FINAL 2021 ECWS Days One Pager-
Infrastructure.pdf6; NCAI ECWS Legislative One-Pager, Addressing
Violence Against Women, ncai.org/FINAL 2021 ECWS Days One Pager-Public
Safety and Justice.pdf; NCAI ECWS Legislative One-Pager, Providing
Tribal Nations Tax Parity and Access to Capital, 6ncai.org/conferences-
events/ncai-events/FINAL 2021 ECWS Days One Pager-Taxpdf; NCAI ECWS
Legislative One-Pager, Tribal Cultural Rights and Homelands Protection,
ncai.org/FINAL 32021 ECWS Days One Pager-Tribal Cultural.pdf
4 NCAI,. Fiscal Year 2022 Indian Country Budget Request: Restoring
Promises. Washington, DC. ncai.org/resources/ncai-publications/NCAI
IndianCountry FY2022 BudgetRequest.pdf
5 Coronavirus Cases by IHS Area, Indian Health Services, ihs.gov/
coronavirus/
6 Deaths involving coronavirus disease 2019 (COVID-19) by race and
Hispanic origin group and age, by state, February 17, 2021, National
Center for Health Statistics, data.cdc.gov/NCHS/Deaths-involving-
coronavirus-disease-2019-COVID-19/ks3g-spdg
7 Weekly Updates by Select Demographic and Geographic
Characteristics, Provisional Death Counts for Coronavirus Diseases,
Centers for Disease Control and Prevention, cdc.gov/nchs/nvss/vsrr/
covid weekly/#Race Hispanic (in New Mexico, AI/ANs makeup approximately
11 percent of the weighted population, yet represented at least 43.7
percent of the state's deaths caused by COVID-19. In Arizona, the
weighted distribution of the AI/AN population is 2 percent; however,
the distribution of COVID-19 deaths has been at least 21.6 percent).
8 Letter from NCAI, et al. to Charles Schumer, Senator, et al.
COVID-19 Recovery Legislative Proposal, (Feb. 2, 2021), ncai.org/Covid-
19/resources-for-indian-country/COVID Letter 2.1.2021-
FINALTransmitted.pdf.
9 House Committee on Natural Resources, Democratic staff, Water
Delayed is Water Denied: How Congress Has Blocked Access to Water for
Native Families, (2016), at 2, http://
democratsnaturalresources.house.gov/imo/media/doc/
House%20Water%20Report FINAL.pdf.
10 Government Accountability Office (GAO), Drinking Water and
Wastewater Infrastructure: Opportunities Exist to Enhance Federal
Agency Needs Assessment and Coordination on Tribal Projects, (2018), at
2, gao.gov/assets/700/691757.pdf
11 Native American Rights Fund, The Importance of Indian Water
Rights Settlement Funding, at 2 (2014), eenews.net/assets/2015/05/18/
document daily 02.pdf
12 Ibid.
13 NCAI, Natural Resource Conservation Policy: Incorporating Tribal
Perspectives, 11 (2011), nrcs.usda.gov/Internet/FSE DOCUMENTS/
stelprdb1045669.pdf
14 Ibid.
15 NCAI Resolution DEN-07-069, Use of the Reclamation Fund for
Indian Water Rights Settlements, ncai.org/attachments/Resolution
ameOMwycvcgUJDjPPXzJXwbYeCnHPqOdcsJPzraFmUxNGiHQRbO--DEN-07-069.pdf
16 Federal Communications Commission, Report on Broadband
Deployment in Indian Country, Pursuant to the Repack Airwaves Yielding
Better Access for Users of Modern Services Act of 2018, at 5, (2019),
aipi.clas.asu.edu/sites/default/files/05011019fccreport on broadband
deployment in indian country pursuant to the repack airwaves yielding
better access for users of modern services act of 2018.pdf
17 Id., at 5.
18 National Telecommunications and Information Administration,
Broadband USA, Broadband Funding Guide: Department of Interior, 2
broadbandusa.ntia.doc.gov/sites/default/files/doi bbusa federalfunding
fy20 0.pdf
19 Id., at 1.
20 Department of Interior, Indian Affairs, National Tribal
Broadband Strategy, at 6, (2021), bia.gov/sites/bia.gov/files/assets/
as-ia/doc/
2020.%20December.%20National%20Tribal%20Broadband%20Strategy%20FINAL-
cover%20change.pdf
21 Id. at 7.
22 Id. at 13.
23 Ibid.
24 See, NCAI, U.S. House Committee on Energy and Commerce Hearing
on Addressing the Urgent Needs of Our Tribal Communities Written
Testimony of President Fawn Sharp National Congress of American
Indians, 6-8, July 8, 2020, energycommerce.house.gov/sites/
democrats.energycommerce.house.gov/files/documents/Testimony-Sharp-
Tribal%20Communities%20Hearing 070820.pdf
25 Department of Interior, Indian Affairs, National Tribal
Broadband Strategy, (2021), bia.gov/sites/bia.gov/files/assets/as-ia/
doc/
2020.%20December.%20National%20Tribal%20Broadband%20Strategy%20FINAL-
cover%20change.pdf
26 U.S. Department of Housing and Urban Development, Fiscal Year
2017 Congressional Justifications, 11-12, (2016), hud.gov/sites/
documents/FY 2017 CJS COMBINED.PDF.
27 Broken Promises Report, at 137, (2018), usccr.gov/pubs/2018/12-
20-Broken-Promises.pdf.
28 U.S. Department of Housing and Urban Development, Housing Needs
of American Indians and Alaska Natives in Tribal Areas: A Report From
the Assessment of American Indian, Alaska Native, and Native Hawaiian
Housing Needs, (2017), huduser.gov/portal/sites/default/files/pdf/
HNAIHousingNeeds.pdf
29 Department of Housing and Urban Development (HUD), Fiscal Year
2017 Congressional Justifications, 11-4, hud.gov/sites/documents/FY
2017 CJS COMBINED.PDF
30 Broken Promises Report, at138, (2018), usccr.gov/pubs/2018/12-
20-Broken-Promises.pdf.
31 Ibid.
32 U.S. Department of Housing and Urban Development, Fiscal Year
2017 Congressional Justifications, 11-12, (2016), hud.gov/sites/
documents/FY 2017 CJS COMBINED.PDF.
33 NCAI Resolution PDX-20-055, NAHASDA Reauthorization, 2020,
ncai.org/attachments/Resolution
zLcDLBJjazSdLkmeWKIMhDmfuqZKQgveoNYpUaKaMUwGZFkNYzw PDX-20-
055%20SIGNED.pdf
34 Federal Register, Department of the Interior, Bureau of Indian
Affairs, 25 CFR Part 256, Housing Improvement Program, final rule, Vol.
80, No. 217, 69590, 2015, govinfo.gov/content/pkg/FR-2015-11-10/pdf/
2015-28547.pdf.
35 Department of Health and Human Services, Indian Health Service
Fiscal Year 2019 Congressional Justifications, (2019), ihs.gov/sites/
budgetformulation/themes/responsive2017/display objects/documents/
FY2019CongressionalJustification.pdf
36 National American Indian Housing Association, Recommended Fiscal
Year 2019 Funding Levels for Tribal Housing Programs, (2019), at 2,
http://naihc.net/wp-content/uploads/2018/03/NAIHC-Budget-
Recommendations-FY2019-FINAL-2.pdf
37 NCAI, Analysis of FY 2020 President's Budget, (2019), at 13,
ncai.org/FY2020 Presidents Budget Analysis.pdf
38 NCAI Resolution ECWS-14-001, Support for Indian Veterans Housing
Rental Assistance Demonstration Program in the Native American Housing
and Self-Determination Act Reauthorization ncai.org/attachments/
Resolution rGJmzKMOpmPXCODBFDEimNAVXIDwbXbVyXGHmPeVbMNxlCXSRjF--ECWS-
14-001%20resolution.pdf
39 U.S. Department of the Interior, Statement of Michael Black,
Director, Bureau of Indian Affairs, before the Senate Committee on
Indian Affairs, Oversight Hearing on Tribal Transportation: Pathways to
Safer Roads in Indian Country, at 2, (2015), bia.gov/sites/bia.gov/
files/assets/as-ia/ocla/MBlackStatementSCIA-TribalTransportationSCIA-4-
22-15%28FINAL%29.pdf
40 U.S. Department of the Interior, Tribal Interior Budget Council,
Transportation Subcommittee Report Out, http://ncai.org/TIBC-RM-
Subcomittee-Nov9-2017-Final.pptx.
41 Ibid.
42 NCAI Resolution PDX-20-027, Support Funding Increases to and the
Expansion of Federal Transportation Infrastructure, Tribal Transit, and
Highway Safety Programs Important to Tribal Nations, ncai.org/
attachments/Resolution
prDUgaLNPKRTNERWxszSdDMdSlugRdzKsBSzcoWTwZsAyozKMJt PDX-20-
027%20SIGNED.pdf
43 U.S. Department of the Treasury, Coronavirus Relief Fund
Allocations to Tribal Governments (May 5, 2020), home.treasury.gov/
system/files/136/Coronavirus-Relief-Fund-Tribal-Allocation-
Methodology.pdf.
44 Broken Promises Report, at 208, usccr.gov/pubs/2018/12-20-
Broken-Promises.pdf.
45 ihs.gov/newsroom/factsheets/healthfacilitiesconstruction/
46 Centers for Medicare and Medicaid Services. National Health
Expenditure data. Accessed on September 21, 2015, at cms.gov/Research-
Statistics-Data-and-Systems/Statistics-Trends-and-Reports/
NationalHealthExpendData/NHE-Fact-Sheet.html
47 IHS. The 2016 Indian Health Service and Tribal Health Care
Facilities' Needs Assessment Report to Congress. 2016, at 4 ihs.gov/
newsroom/includes/themes/newihstheme/display objects/documents/RepCong
2016/IHSRTC on FacilitiesNeedsAssessmentReport.pdf
48 Broken Promise Report, usccr.gov/pubs/2018/12-20-Broken-
Promises.pdf
49 NCAI Resolution PDX-20-017, Calling for Increased Funding for
Health Care and Sanitation Infrastructure for American Indian/Alaska
Native Tribal Nations,ncai.org/attachments/Resolution
ziEgUwOewCQXGqVxbdHNGGfKVQSOJsbMFnpLzfHaEWWmZxtgOkM--PDX-20-
017%20SIGNED.pdf
50 NCAI Resolution SAC-12-054, Increase Funding for Prevention of
Methamphetamine and Suicide in Indian Country,ncai.org/attachments/
Resolution YzBtYXKlYEEkfscSvEfPEqDDbYykwDcjLwXsbhakwzROfRZEHxt SAC-12-
054.pdf
51 85 Fed. Reg. 21864 (April 20, 2020), govinfo.gov/content/pkg/FR-
2020-04-20/pdf/2020-08247.pdf.
52 See CMS ``MLN Matters'' SE 20016, updated April 30,
2020,cms.gov/files/document/se20016.pdf.
53Tribal Technical Advisory Group to the Centers for Medicare &
Medicaid Services, Letter to the Honorable Seema Verma, Administrator,
June 1, 2020, RE: Policy and Regulatory Revisions in Response to the
COVID-19 Public Health Emergency (CMS-1744-IFC)--Tribal Recommendations
and Requests.
54 Bureau of Indian Education, FY 2021 Congressional Budget
Justification, bia.gov/sites/bia.gov/files/assets/as-ia/obpm/
2021%20BIE%20Greenbook.pdf
55 U.S. Department of the Interior, Office of Inspector General,
Condition of Indian School Facilities, C-EV-BIE-0023-2014, 2016,
doioig.gov/sites/doioig.gov/files/FinalEval BIESchoolFacilitiesB
093016.pdf
56 Statement of Jason Freihage, Deputy Assistant Secretary For
Management Office Of The Assistant Secretary For Indian Affairs
Department of The Interior Before The Subcommittee on Interior,
Environment, and Related Agencies, House Committee on Appropriations on
Education Facilities And Construction (July 24, 2019), congress.gov/
116/meeting/house/109835/witnesses/HHRG-116-AP06-Wstate-FreihageJ-
20190724.pdf.
57 Moseley, Christopher (ed.). 2010. Atlas of the World's Languages
in Danger, 3rd ed.. Paris, UNESCO Publishing, http://unesco.org/
languages-atlas/
58 Broken Promises Report,usccr.gov/pubs/2018/12-20-Broken-
Promises.pdf.
59 Indian Self-Determination and Education Assistance Act of 1975,
25 U.S.C. 5301 et seq. (1975) (emphasis added)
60 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982).
61 NCAI Resolution SAC-12-042, Supporting Solutions, Including
Federal Legislation if Necessary, that Will Reverse or Mitigate the
Effects of the 1989 Decision of the U.S. Supreme Court in the Case of
Cotton Petroleum v. New Mexico, ncai.org/attachments/Resolution
eSZGOknIxfLFmwOulmyCZfYhlDDfJaXmDIpmHrPLCrZkFiyFFTO SAC-12-042.pdf;
NCAI Resolution SD-15-045, Urging the Department of Interior to Address
the Harms of State Taxation in Indian Country and Prevent Dual Taxation
of Indian Communities, ncai.org/attachments/Resolution
pmLuqCrTfDSNTWYJfSoWcGNXLesAZIFoJShRbLnbTsnktQZzdmj--SD-15-045.pdf;
NCAI Resolution DEN-18-018, Urging the Department of the Interior
to Restart its Process of Updating the ``Licensed Indian Trader''
Regulations, ncai.org/attachments/Resolution
pkSZaduxisqpuxoAYmfZOTYOxIoleoUzWbQFdtmTiqPzlMLEhHy--DEN-18-
018%20Final.pdf;
and NCAI ResolutionABQ-19-015, Urging the Secretary of the Treasury
to Assist in Ending Dual Taxation of Economic Activity in Indian
Country, ncai.org/attachments/Resolution
LkQTZurnehEkDFmoZXhntmxoKQKEROQUbLLtflbXCHaDieVMCQd ABQ-19-015.pdf.
62 See e.g., Arizona Republic, Tribes' human remains and cultural
items have been scattered across the U.S. Here's how they get returned,
azcentral.com/story/news/local/arizona/2020/06/25/how-nagpra-law-helps-
return-native-americanremains-tribes/3211191001/.
63 See e.g., Senate Committee on Indian Affairs, Field Hearing,
``The Theft, Illegal Possession, Sale, Transfer, and Export of Tribal
Cultural Items,'' (S. Hrg. 114-535) (Oct. 18, 2016); GAO Report,
``Native American Cultural Property: Additional Agency Actions Needed
to Assist Tribes with Repatriating Items from Overseas Auctions,''
(GAO-18-537) (2018).
64 National Native American Graves Protection and Repatriation Act
Program Inventory, grantsdev.cr.nps.gov/NagpraPublic/Home/Inventory
(last visited, Feb. 18, 2021); see e.g., GAO Report, ``Native American
Graves Protection and Repatriation Act: After Almost Twenty Years, Key
Federal Agencies Have Still Not Complied with the Act,'' (GAO 10-768)
(2010)
65 NCAI Resolution REN-19-003, Supporting Legislation to Facilitate
International Repatriation of Tribal Nations' Tangible Cultural
Heritage and Coordination among Federal Agencies,
XbNGoCknSZuPPVEfngajJaERjsfwmjyGnxVyKIRWwaeDzMXPMXNP REN-19-
003%20FINAL.pdf.
66 NCAI Resolution PDX-20-070, NCAI Initiative on Sacred Places and
Cultural Rights Laws and Developing Legislation,ncai.org/attachments/
Resolution hlWapXboBodcDdyihesIEdrdoASofspeNKZLSrHIqPUiqkgWgYF--PDX--
0920-070%20SIGNED.pdf.
67 NCAI Resolution TUL-05-029, Supporting Amending NAGPRA
Definition of ``Native American;'' ncai.org/attachments/Resolution
ktlzvLFbGsHkHWrkqFagelqjLPcXMUXrBvvXrAjBTBkDFeKYXvk TUL-05-029.pdf;
Supra, note 5.
68 Ultimately, Techaminsh Oytpamanatityt was repatriated to
claimant Tribal Nations, see e.g., NPR, ``A Long, Complicated Battle
Over 9,000-Year-Old Bones Is Finally Over,'' (2016), npr.org/sections/
codeswitch/2016/05/05/476631934/a-long-complicated-battle-over-9-000-
year-old-bones-is-finally-over.
69 See e.g., U.S. Senate, Committee on Indian Affairs, Report to
the Senate on Providing for the Protection of Native American Graves
and the Repatriation of Native American Remains and Cultural Patrimony,
(101 S. Rpt. 473); Jack F. Trope & Walter R. Echo-Hawk, The Native
American Graves Protection and Repatriation Act: Background and
Legislative History, 24 ARIZ. ST. L.J. 35, (1992); C. Timothy McKeown &
Sherry Hutt, In the Smaller Scope of Conscience: The Native American
Graves Protection & Repatriation Act Twelve Years After, 21 UCLA J.
ENVTL. L. & POL'Y 153, (2002).
70 NCAI Resolution REN-19-003, Supporting Legislation to Facilitate
International Repatriation of Tribal Nations' Tangible Cultural
Heritage and Coordination among Federal Agencies, ncai.org/attachments/
Resolution bNGoCknSZuPPVEfngajJaERjsfwmjyGnxVyKIRWwaeDzMXPMXNP REN-19-
003%20FINAL.pdf;
71 Claudio Saunt, West of the Revolution (2014); see also,
accompanying interactive map at, http://usg.maps.arcgis.com/apps/
webappviewer/index.html?id=eb6ca76e008543a89349ff2517db47e6 (last
visited, Feb. 18, 2021).
72 General Allotment Act of Feb. 8, 1887, 25 U.S.C. 331 (repealed
1934); Dawes Act Amendment of 1906, 25 U.S.C. 349 (repealed 1934);
see generally, Cohen's Handbook of Federal Indian Law 1.04, 1.05
(Nell Jessup Newton et. al. eds., 2012). See also, Brendale v.
Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 436
n.1 (1989); Atkinson Trading Co. v. Shirley, 532 U.S. 645, 650 n.1
(2001); County of Yakima v. Confederated Tribes & Bands of Yakima
Indian Nation, 502 U.S. 251, 253-257 (1992).
73 U.S. Const., Art. I, 8, cl. 3, (``Commerce Clause'') and Art.
II, 2, cl. 2 (``Treaty Clause'').
74 See e.g., National Historic Preservation Act (NHPA), Pub. L. No.
89-665, as amended by Pub. L. No. 96-515; Native American Graves
Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001 et seq. 75
Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v.
Georgia, 20 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1832);
United States v. Winans, 198 U.S. 371 (1905).
76 See e.g., Presidential Memorandum of January 26, 2021,
``Memorandum on Tribal Consultation and Strengthening Nation-to-Nation
Relationships''.
77 Cherokee Nation v. Georgia, 20 U.S. 1 (1831). See also, Indian
Tribal Justice Support Act of 1993, 25 U.S.C. 3601-31 (stating,
``The United States has a trust responsibility to each tribal
government that includes the protection of the sovereignty of each
tribal government''); United States v. Mitchell, 463 U.S. 206, 225
(1983), (reiterating, ``the undisputed existence of a general trust
relationship between the United States and the Indian People''); United
States v. Navajo Nation, 537 U.S. 488 (2003).
78 General Allotment Act of Feb. 8, 1887, 25 U.S.C. 331 (repealed
1934); Dawes Act Amendment of 1906, 25 U.S.C. 349 (repealed 1934).
79 Indian Country Today, ``Tester Re-Introduces a `Clean Carcieri
Fix,' indiancountrytoday.com/archive/tester-re-introduces-clean-
carcieri-fix-4hr-jxvB-E6Z8EU3sZkZOw.
80 NCAI Resolution RAP-10-024, To Support Legislation to Address
the Supreme Court Decision in Carcieri v. Salazar, ncai.org/
attachments/Resolution
oiGOSYZkdNCzZHOUkmLuFtLzAGVAKgIErwWMyEKWqiSixNMKwJq RAP-10-024.pdf.
81 NCAI Resolution PDX-20-003, Calling for the Advancement of
Meaningful Tribal Co-Management of Federal Lands, ncai.org/attachments/
Resolution FamhBAHVFLnQfgvKBsgXjzIrdYAbDzKIaVtsEdSjWIbSZtJDkFR PDX-20-
003%20SIGNED.pdf.
82 Id. Note 20; NCAI Resolution BIS-02-043, Sacred Lands; National
Congress of American Indians Resolution, #PHX-08-069C: NCAI Policy
Statement on Sacred Places; The National Congress of American Indians,
ncai.org/attachments/Resolution
MEiHQoBUWknVjsqcJUWQNFxIyAjPXEntkmaXbcWTxiBwyqmMuIN PHX-08-
069cFINAL.pdf; NCAI Resolution ATL-14-032, Calling for Protection of
Native Peoples' Sacred Places, Sacred Objects and Ancestors under
United States, Native Nations and International Law, Policy and
Practice; ncai.org/attachments/Resolution
IdzEZaLwaLwIqbTUdSdFHioFkTzlokgGkHyUnvNYcTCOVVFlUEU ATL-14-032.pdf;
NCAI Resolution ABQ-10-065, Calling for Legislation to Provide a Right
of Action to Protect Native Peoples' Sacred Places, ncai.org/
attachments/Resolution
VApsecvWsjrwXrclzXvxzxELsRVlaptSOXGIXgvxqshvXahisOB ABQ-10-065 rev.pdf;
NCAI Resolution DEN-18-035, Supporting Legislation to Improve
Protections and Authorize the Restoration of Native Sacred Places on
Federal Lands, ncai.org/attachments/Resolution
PYCnwKpRbfWPiYzlKHPLmgHJMNoHiIZVffWZqBIifEouNkSdFeS DEN-18-
035%20Final.pdf.
83 NCAI Resolution PDX-20-003, Calling for the Advancement of
Meaningful Tribal Co-Management of Federal Lands, ncai.org/attachments/
Resolution FamhBAHVFLnQfgvKBsgXjzIrdYAbDzKIaVtsEdSjWIbSZtJDkFR PDX-20-
003%20SIGNED.pdf; see also, NCAI Resolution REN-13-035, Request for
Federal Government to Develop Guidance on Recognizing Tribal Sovereign
Jurisdiction over Traditional Knowledge, ncai.org/attachments/
Resolution opZRyVFLdvvUFJrFgQGBcyGXoYlMduwfYOSaRAnursVMQYYNsCN REN-13-
035%20final.pdf.
84 Broken Promises Report, at 193 (2018).
85 Fourth National Climate Assessment, Vol. II: Impacts, Risks, and
Adaptation in the United States, Chapter 15 (2018).
86 Broken Promises Report, 193-194 (2018); Fourth National Climate
Assessment, Vol. II: Impacts, Risks, and Adaptation in the United
States, Chapter 15 (2018).
87 Fourth National Climate Assessment, Vol. II: Impacts, Risks, and
Adaptation in the United States, Chapter 15 (2018).
88 NCAI, Climate Action Resource Center, ncai.org/ptg/climate,
(last visited, Feb. 19, 2021).
89 NCAI Resolution PHX-16-058, United States Federal Agency
Consultation, Consent, Funding, and Actions to Address Climate Change
Impacts to Tribal Treaty and Trust Resources, ncai.org/attachments/
Resolution RQiEDgHAWYpzQLoUKEdwjuxDCxyGCwKeLQhGWLAKzxTUAAUehsK PHX-16-
058%20final.pdf.
90 NCAI Indians Resolution SD-15-024, Support for the Tribal
Climate Change Principles: Responding to Federal Policies and Actions
to Address Climate Change document and its Swift Implementation by the
Federal Government, ncai.org/attachments/Resolution
NZdlSoySpGDwyQAPQHLWnPZLOBFtqiQXqWoQXOVmdKCaPLkzSqm SD-15-024.pdf.
91 See e.g., NCAI Resolution ABQ-19-036, Calling on Congress to
Support and Pass Recovering America's Wildlife Act, or Similar
Legislation with a Tribal Wildlife Conservation and Restoration
Account, ncai.org/attachments/Resolution
wdmLQlFJtJWBerRSGeAYFkjXqdVikLhFyqxMmWUrHzSQVdFGGjo ABQ-19-036.pdf.
92 NCAI Resolution PDX-11-036, Traditional Ecological Knowledge and
Climate Change, ncai.org/attachments/Resolution
MZlrscMWUDNfPdJGEJQVODCZZtiNPdZRrWVaNmDdEYTmqgYqTat PDX-11-036
final.pdf.
93 Supra. Note 30. See also, NCAI Resolution ATL-14-050, Support
the Wildfire Disaster Funding Legislation, ncai.org/attachments/
Resolution QpVTbEqVjmjgrNAPeUJdzfXCaXahfjUDwgklXihJcGGiWidclwo ATL-14-
050.pdf.
94 Bureau of Indian Affairs, Trust Services, Tribal Climate
Resilience Program, Solicitation, (2020),bia.gov/sites/bia.gov/files/
assets/bia/ots/tcrp/FY21NOFO%20for%20TCRP.pdf.
95 See e.g., Property and Environment Research Center, PERC Policy
Perspective: Unlocking the Wealth of Indian Nations: Overcoming
Obstacles to Tribal Energy Development, (2014),perc.org/wpcontent/
uploads/old/pdfs/IndianPolicySeries%20HIGH.pdf.
96 National Renewable Energy Laboratory, Techno-Economic Renewable
Energy Potential on Tribal Lands, (2018), nrel.gov/docs/fy18osti/
70807.pdf.
97 Department of Energy Department of Energy FY 2017 Congressional
Budget Request--Volume 3. (Feb. 2016), p. 755. energy.gov/sites/prod/
files/2016/02/f30/FY2017BudgetVolume3.pdf.
98 Broken Promises Report, at 182, (2018).
99 NCAI Resolution FTL-04-110, Support for Legislation to Enhance
the Development of Indian Tribes' Energy Resources, ncai.org/
attachments/Resolution
QJdbbwFnrWmGVaJqGSHocjqqFSERrkvVBOJzsMmkGfVBtLNwMrp ftl04-110.pdf.
100 Id.
101 NCAI Resolution TUL-13-043, Support for Removal by Congress and
the President of Barriers to Full Control by Tribal Nations of the
Development of Their Renewable and Non-renewable Energy Resources,
ncai.org/attachments/Resolution
ttpWzJwjtHdUfEAcemlckTRjoAGzZhJvZoAOdLMxjazDEdHsjYQ TUL-13-
043%20Final.pdf.
102 NCAI Resolution RAP-10-050, In Support of the Indian Energy
Promotion and Parity Act of 2010, ncai.org/attachments/Resolution
qIVBoCiVrzsphSvbVtxDGRAkClWuwPTgnRpGrZyiFMpCrCwqBga RAP-10-050.pdf.
103 NCAI Resolution SD-15-038, Indian Country's Priorities for
Federal Energy Legislation, ncai.org/attachments/Resolution
qMHMstHTzqxRxkfyszNHlJtQWsJwCTsRfxceShlONcPiSBAVith SD-15-038.pdf; see
also, NCAI Resolution, REN-19-001, Opposing Mining on Public Lands and
Around the Grand Canyon without Tribal Nations' Free Prior and Informed
Consent, ncai.org/attachments/Resolution
fEBoYKOrTODFcWRgdViPRcbNmdjBuOuhGLIbNztNyaAqDLlALfA REN-19-
001%20FINAL.pdf; NCAI Resolution REN-19-024, Staying Mineral Leasing
and Paleontological Use Permitting in Areas of Tribal Interest, such as
the Buffalo Strip and Ball Ranch Area of Critical Environmental
Concern, Where Tribal Nations Do Not Consent, ncai.org/attachments/
Resolution AgWCYVGVVOfVmUHPUmQqpmRGwechoEDblkAfndgPpHJPvAwfICv REN-19-
024%20FINAL.pdf
104 U.S. Department of Justice, Violence Against American Indian
and Alaska Native Women and Men: 2010 Findings from the National
Intimate Partner and Sexual Violence Survey, 2, (2016), ncjrs.gov/
pdffiles1/nij/249736.pdf.
105 Id.
106 Id.
107 NCAI Resolution ECWS-19-005, Urging Congress to Pass a Long-
term Reauthorization of the Violence Against Women Act that Includes
Key Protections for Native Women, ncai.org/attachments/Resolution
DKtUnmfhXSxCkRmoIHulitfxDPHWNFNWOvRcwcsoXQKMhhVnsBZ ECWS-19-005.pdf.
108 Federal Emergency Management Agency, By the Number: Coronavirus
Pandemic Whole-of-America Response, pg. 2, February 16, 2021.
109 Senate Committee on Indian Affairs, Oversight Hearing on
``Evaluating the Response and Mitigation to the COVID-19 Pandemic in
Native Communities'' and Legislative Hearing to Receive Testimony on
S.3650, indian.senate.gov/hearing/oversight-hearing-evaluating-
response-and-mitigation-covid-19-pandemic-native-communities, July 1,
2020.
110 NCAI Resolution PDX-20-006, Holding the Department of Homeland
Security Accountable to Tribal Nations, ncai.org/attachments/Resolution
wgnCWyNGKOayyakuupKOvWukzknuIjvkrrkmHKMMnSHEUaHRtLR PDX-20-
066%20SIGNED.pdf.
111 Fang, X., Brown, D. S., Florence, C. S., & Mercy, J. A., The
Economic Burden of Child Maltreatment in the United States and
Implications for Prevention, Child Abuse & Neglect, 36, 156-65, (2012).
112 Ibid.
The Chairman. Thank you very much.
Next, we have Mr. Leonard Forsman.
STATEMENT OF HON. LEONARD FORSMAN, PRESIDENT, AFFILIATED TRIBES
OF NORTHWEST INDIANS
Mr. Forsman. [Greeting in Native tongue]. Welcome,
everyone, from Port Madison Indian Reservation here in
Suquamish, Washington. I am Leonard Forsman, I am Chairman of
the Suquamish Tribe and also President of the Affiliated Tribes
of Northwest Indians, which represents many tribes in the
northwest, Washington, Oregon, Idaho, Alaska, California,
Montana, and beyond. I would like to thank you for the
opportunity, Chairman Schatz, and Vice Chair Murkowski, for the
opportunity to speak here on behalf of ATNI.
Climate change has had a profound impact on Indian Country,
in affecting our sovereign rights, access to our usual
customary fishing, hunting and gathering places here in the
Pacific Northwest and the Columbia River, on the coast, and
here in Puget Sound. It is affecting our ability to live our
traditional way of life and our economic livelihoods.
Chief Seattle, who is buried here on our reservation, and
who I descend from, stated in 1854, just before the Treaty of
Point Elliott was signed, that every part of the soil is sacred
in the estimation of my people. Every hillside, every valley,
every plain and grove has been hallowed by some sad or happy
event in days long vanished. It is in the spirit of his words
that will continue my testimony.
Climate change is causing more and extensive and frequent
flooding, causing tribal elders throughout our area to move
from homes, especially in Alaska, which you will hear more
about later, I am sure, that they have occupied since time
immemorial. It is also causing pollution here in the Puget
Sound from overflowing sewer plants. More and more extensive
wildfires are being caused by climate change, impacting our
children's respiratory health, damaging sensitive ecosystems
and polluting the water.
Ocean acidification is threatening our traditional first
foods, especially clams and crabs, that the Puget Sound and
coastal tribes depend upon for commercial, spiritual and
cultural purposes. Our spiritual relatives, the Southern
Resident Killer Whales of Puget Sound, are endangered by the
drastic reduction of salmon runs in the northwest, causing them
to starve. The same could be said for the salmon. Fishermen of
my tribe and many tribes around me in the Affiliated Tribes of
Northwest have minimal, if any, opportunity to harvest salmon.
Climate impacts have also altered fishing conditions and
impacted streams and rivers where salmon spawn, while the Snake
River Dam and other obstructions continue to prevent the return
of salmon runs. Over 500 years, tribes have suffered inequity,
injustice and disrespect as our traditional ecosystems have
been ravaged by the impacts of development, which are now being
amplified by climate change.
The Federal Government has a trust responsibility based on
treaties and other agreements to tackle this issue immediately
and into the future. After all, what good is a treaty right if
our environment and our ecosystems can no longer sustain fish
to catch, animals and fish to harvest?
Tribes are leading efforts to tackle climate change. The
Swinomish Indian Tribal Community is reviving ancient clam
gardens to improve nearshore habitat while addressing ocean
acidification. The Blue Lake Rancheria has constructed a
microgrid on its 100-acre reservation as part of its plan to
transition to a zero-carbon community.
The Navajo Nation is replacing coal with a solar project
that supplies energy to 36,000 homes on their reservation.
Tribes in Alaska, Louisiana, and Washington are developing
plans to relocate to escape rising sea levels.
The Fourth National Climate Assessment, published in 2018,
had a chapter on Indian Country. It found that climate change
threatens tribal communities in unique ways. The report
concluded that the climate change threat to natural resources
and the environment would have a profound negative impact on
our heritage, our practices and our identity as tribes and our
individual tribal members and families.
A tribal review of the House's 2020 Congressional Climate
Action Plan identified the following priorities for Indian
Country: invest in tribal infrastructure to build a just and
equitable clean energy economy; restore ecological resilience
and maintain tribal access to first foods and other cultural
resources; promote environmental justice and health of tribes
while upholding tribal sovereignty; and honor the rights of
tribes in climate governance.
In conclusion, to fully accomplish our goals to address
climate change impacts in the tribal communities, we need to
have Congress ensure that front line tribal communities have
the resources they need to address the inequitable climate
change impacts that we are facing. Congress should increase
funding for BIA's Tribal Resilience Program, so that tribes can
plan, create, and implement tribal adaptation strategies.
In addition, more funding should be directed to FEMA, the
Corps of Engineers, and NOAA with the express purpose of
helping to relocate tribal infrastructure that is threatened by
climate change and rising sea levels.
I would like to say that many of these priorities are being
developed by NCAI, and I am one of the co-chairs of the Climate
Change Task Force. I want to thank you for the opportunity to
testify today. Affiliated Tribes of Northwest Indians stands
ready to assist the Committee as it works to find solutions to
address climate change.
[The prepared statement of Mr. Forsman follows:]
Prepared Statement of Hon. Leonard Forsman, President, Affiliated
Tribes of Northwest Indians
Tribal Nations in the U.S. are among the frontline communities
feeling the full force of the climate crisis. We are already
experiencing significant climate impacts that affect our rights as
sovereign Nations, our access to our usual and accustomed places, our
traditional lifeways, and our livelihoods. Our peoples have lived on
our traditional lands since time immemorial, but our elders are being
forced to move from their homes because they are experiencing more
extensive flooding. More of our children have been inflicted with
respiratory illness and have difficulty breathing during recent
wildfire seasons, which are worse than ever before. And our traditional
first foods, including clams, crabs, and fisheries are threatened by
our acidifying oceans. The Suquamish Tribe and our ancestors have
always had a sacred relationship with the Southern resident killer
whale population in the Puget Sound, but they are starving because of
the drastic reduction in our salmon runs. These reductions are strongly
correlated with climate impacts and with the presence of dams on the
Snake River. The inequities and injustices that the citizens of Tribal
Nations in the US have experienced in the last 500 years are being
amplified by the climate and the US government has a Trust
Responsibility to tackle this issue immediately and moving forward.
There are Tribes throughout the United States that are at the
forefront of taking action on climate change. For example,
To adapt to ocean acidification, the Swinomish Indian Tribal
Community is reviving ancient clam gardens to improve nearshore
habitat and give tribal members more opportunities to harvest
traditional foods.
The Blue Lake Rancheria has constructed an electrical
microgrid on its 100-acre reservation, which is part of the
Tribes' transition to a zero-carbon community.
The Navajo Nation is working to increase renewable energy--
the Kayenta Solar Plant now supplies energy to 36,000 homes on
the Navajo Nation.
Numerous Native communities in Alaska, coastal Louisiana, and
Washington State are developing plans for relocating and
protecting their existing infrastructure in response to rising
seas.
The 4th National Climate Assessment, published in 2018, includes a
dedicated chapter on Tribes and Indigenous Peoples. The Key Messages in
the chapter are:
1. Climate change threatens Indigenous peoples' livelihoods
and economies.
2. The health of Tribal individuals and communities will be
uniquely challenged by climate impacts, which threaten the
natural resources that we depend upon, our cultural heritages,
identities, and physical and mental health.
3. Institutional barriers limit our access to traditional
territory and resources and also preclude us from engaging in
Federal policies and programs and accessing adequate funding.
In autumn 2020, in a Tribally led review of the US House's 2020
Congressional Climate Action Plan (CAP). The Tribal Review identifies
key Tribal priorities that include:
Invest in Tribal infrastructure to build a just, equitable,
and resilient clean energy economy;
Support climate-resilient Tribal communities by upholding the
Federal Trust Responsibility;
Promote environmental justice and health of Tribes while
upholding Tribal sovereignty;
Restore ecological resilience and maintain Tribal access to
first foods and other cultural resources;
Honor the rights of Indigenous Peoples in climate governance
and climate science by honoring the Rights of Indigenous
Peoples.
In May 2020, upon request from the U.S. House of Representatives
Subcommittee on the Interior, the BIA Tribal Resilience Program
assessed the unmet infrastructure needs of Tribal Nations for
addressing climatic threats. The report identified a significant unmet
financial need for existing tribal infrastructure threatened by climate
that includes:
$3.45 billion over the next 50 years for Alaska which equates
to $90-$110 million in the first 10 years to address tribal
infrastructure threats;
$1.9 billion for Tribes in the Contiguous 48 States. This
represents a known underestimate of the total Needs ($462
million for Planning and $1.45 billion for implementation
projects).
In conclusion, to fully accomplish our climate-related goals, the
United States must ensure that frontline communities have the resources
that they need to address the inequitable climate impacts that we are
facing. Federal funding from BIA's Tribal Resilience Program is
critical for Tribes seeking to plan and implement climate adaptation
strategies. In FY 2022, funding for the BIA Tribal Resilience Program
should be increased to $50 million. In addition, $150 million should be
allocated to agencies such as FEMA, the USACE, and NOAA and committed
to protecting or relocating existing tribal infrastructure (including
cultural sites) threatened by climate.
I appreciate the opportunity to provide this testimony and ATNI
stands prepared to assist the U.S. Senate Indian Affairs Committee in
future hearings to address climate impacts and solutions on behalf of
Tribal Nations.
The Chairman. Thank you very much.
Next, we have Chair ``Hulu'' Lindsey, Office of Hawaiian
Affairs.
STATEMENT OF HON. CARMEN ``HULU'' LINDSEY, CHAIR, BOARD OF
TRUSTEES, OFFICE OF HAWAIIAN AFFAIRS
Ms. Lindsey. Aloha, members of the Senate Committee on
Indian Affairs. My name is Carmen ``Hulu'' Lindsey, and I am
the Chairperson of the Board of Trustees of the Office of
Hawaiian Affairs. Thank you for inviting me to provide
testimony on behalf of the Native Hawaiian community to the
Senate Committee on Indian Affairs.
I want to offer my aloha to Committee chairman and Hawaii's
Senator, Brian Schatz. Chairman Schatz, you have proven
yourself a reliable and respected champion for Native
Hawaiians, for American Indians, and for Alaska Natives.
Chairman Schatz, I especially want to thank you for the
critical relief programs like rental assistance, small business
grants, broadband access, tele-health, and education that you
created to ease the suffering caused by this pandemic. Those
programs were desperately needed.
Vice Chair Murkowski, I send my aloha and congratulations
to you as well on your return to this important post. Hawaii
and Alaska have enjoyed a long history of working together, due
to the cultural ties we have developed over so many years as
communities living outside the continental United States.
Mr. Chairman, Madam Vice Chair and members of the
Committee, I appreciate the bipartisanship way your Committee
has worked over the years to ensure that the Federal Government
honors its trust responsibility to all Native Americans:
American Indians, Alaska Natives, and Native Hawaiians. I have
submitted my lengthy written remarks, along with a copy of
OHA's testimony from your December 2020 hearing on self-
determination. Together, these statements address the needs and
successes of our Native Hawaiian community.
I am one of nine publicly elected OHA trustees, all of whom
are Native Hawaiian. OHA is a semi-autonomous agency of the
State of Hawaii, mandated to better the conditions of Native
Hawaiians. We advocate on behalf of Native Hawaiians. We advise
and inform Federal officials about Native Hawaiians. And we
coordinate Federal activities relating to Native Hawaiians. To
prepare for today's hearing, we met with Native Hawaiian
health, housing, and education organizations. In health, Papa
Ola Lokahi, in housing, the Department of Hawaiian Home Lands,
and in education, the Native Hawaiian Education Council. Their
needs and their priorities are reflected in our written
testimony.
OHA's policy priority for the Congress is simply this: to
further the self-determination of Native Hawaiians. We ask this
Senate Committee to honor the Federal Government's trust
responsibility to Native Hawaiians. Support Federal programs
that benefit Native Hawaiians. And ensure parity by the Federal
Government to all Native Americans, Native Hawaiians included.
Congress has consistently recognized Native Hawaiians as
the indigenous once-sovereign people of the State of Hawaii,
who have never relinquished our right to self-determination.
Though the Federal trust responsibility may look different from
tribe to tribe and from community to community, that trust
responsibility is owed by the Federal Government to all Native
Americans.
Unfortunately, for the past two decades, executive orders
requiring Federal agencies consult with Native Americans have
left Native Hawaiians out. To address this, OHA urges the
passage of legislation extending consultation by the Federal
Government to Native Hawaiians. To meet its trust
responsibility to Native Hawaiians we urge Congress to
reauthorize, expand and increase funding for the Native
Hawaiian Health Care Improvement Act, the Native Hawaiian
Housing Block Grants, the Native Hawaiian Education Act, and
the Native American Languages Act.
Mahalo again for allowing me the opportunity to provide
remarks.
[The prepared statement of Ms. Lindsey follows:]
Prepared Statement of Hon. Carmen ``Hulu'' Lindsey, Chair, Board of
Trustees, Office of Hawaiian Affairs
Aloha e Chairman Schatz, Vice Chairman Murkowski, and the Members
of the U.S. Senate Committee on Indian Affairs.
Mahalo nui loa (Thank you very much) for inviting me to testify on
behalf of the Office of Hawaiian Affairs (OHA) and our beneficiaries--
the Native Hawaiian community. I extend my aloha and congratulations to
Chairman Brian Schatz and Vice Chairman Lisa Murkowski on your new
leadership positions on the U.S. Senate Committee on Indian Affairs.
This Committee has a long history of bipartisanship and collegiality
among its Members. That spirit is critical to elevating the voices of
Native leaders and fulfilling the federal government's trust
responsibility owed to all Native people of the United States. Your
work here empowers the Native community to continue exercising true
self-determination--our right to chart our own course and maintain our
distinct traditions, cultures, and Native ways.
Chairman Schatz, OHA recognizes your work on behalf of our families
in Hawai'i. You have been a champion on stopping the trafficking of
Hawaiian women and children, including Native perspectives in federal
climate action, and addressing disparities for Native Hawaiians in
health, education, broadband access, and food security. We are
particularly grateful for your recent efforts to ensure that Native
Hawaiians were eligible for federal Coronavirus Disease (COVID- 19)
relief, and that you provided us with the information we needed to
obtain federal resources. We deeply appreciate your strong support to
fund federal programs providing health care, housing, education, and
other essential services to Native Hawaiians.
Background on OHA and its standing to represent Native Hawaiians
Established by our state's Constitution, \1\ OHA is a semi-
autonomous agency of the State of Hawai`i mandated to better the
conditions of Native Hawaiians. Guided by a board of nine publicly
elected trustees, all of whom are Native Hawaiian, OHA fulfills its
mandate through advocacy, research, community engagement, land
management, and the funding of community programs. Hawai`i state law
recognizes OHA as the principal public agency in the state responsible
for the performance, development, and coordination of programs and
activities relating to Native Hawaiians. \2\ Furthermore, state law
directs OHA to advocate on behalf of Native Hawaiians; \3\ to advise
and inform federal officials about Native Hawaiian programs; and to
coordinate federal activities relating to Native Hawaiians. \4\
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\1\ Haw. Const., art. XII, 5 (1978).
\2\ Haw. Rev. Stat. 10-3(3).
\3\ Haw. Rev. Stat. 10-3(4).
\4\ Haw. Rev. Stat. 10-6(a)(4).
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Priorities for the 117th Congress
Your inclusion of Native leaders in your first oversight hearing is
reassuring. Allowing us to share--in our own words--how the Committee
and the Congress can best meet the federal government's continuing
trust responsibility to our people is an important part of honoring it.
In preparation for this hearing, OHA met with other Native Hawaiian
organizations to ensure that the broad needs of our diverse community
are represented. These partners include Papa Ola Lokahi (POL), the
Department of Hawaiian Home Lands (DHHL), and the Native Hawaiian
Education Council (NHEC). Together, we provide health, housing,
economic development, and education, among other services to Native
Hawaiians. The priorities OHA presents today align with one guiding
principle--furthering self-determination for Native Hawaiians.
To accomplish this, we ask this Committee to: (1) honor the federal
government's trust responsibility to the Native Hawaiian people by
ensuring that Native Hawaiians are included in all federal consultation
policies; (2) support federal programs for Native Hawaiians, by
reauthorizing, strengthening, and expanding federal programs focusing
on the health care, housing, economic development, and education of
Native Hawaiians; and (3) ensure parity in the treatment for all Native
Americans, including American Indians, Alaska Natives, and Native
Hawaiians.
(1) Honor the federal government's trust responsibility owed to Native
Hawaiians
Native Hawaiians are owed the same trust responsibility as any
other Native American group. To meet this obligation, Congress--
oftentimes through the bipartisan work of this Committee and its
Members--has created policies to promote education, health, housing,
and a variety of other federal programs that support Native Hawaiian
self-determination. Similar to American Indians and Alaska Natives,
Native Hawaiians have never relinquished our right to self-
determination despite the United States' involvement in the illegal
overthrow of Queen Lili`uokalani in 1893 and the dismantling of our
Hawaiian government. In fact, over 150 Acts of Congress consistently
and expressly acknowledged or recognized a special political and trust
relationship to Native Hawaiians based on our status as the Indigenous,
once-sovereign people of Hawai`i. Among these laws are the Hawaiian
Homes Commission Act, 1920 (42 Stat. 108) (1921), the Native Hawaiian
Education Act (20 U.S.C. 7511) (1988), the Native Hawaiian Health
Care Improvement Act (42 U.S.C. 11701) (1988), and the Hawaiian
Homelands Homeownership Act codified in the Native American Housing
Assistance and Self Determination Act, Title VIII (25 U.S.C. 4221)
(2000).
While the federal trust responsibility has many facets, one of the
most critical safeguards of effective self-determination is the ability
to consult with the federal government. Under President Clinton's
Executive Order 13175, and subsequent memoranda from the Bush, Obama,
and now Biden Administrations, the U.S. Government recognizes the right
to sovereignty and selfdetermination of this nation's Native people.
While this is a step in the right direction, the omission of Native
Hawaiians from federal consultation requirements has stifled and
limited Native Hawaiian voices from being able to comment upon and
inform federal projects and programs for the past two decades. Despite
our exclusion from these executive orders, Congress's thoughtful
inclusion of Native Hawaiians in key legislation like the Native
American Graves Protection and Repatriation Act (NAGPRA) (25 U.S.C.
3001) and the National Historic Preservation Act (NHPA) (16 U.S.C.
470 et seq.) have demonstrated that Native Hawaiians can be effectively
included in consultation now, with representation through Native
Hawaiian organizations. Indeed, OHA receives and reviews approximately
240 requests for federal consultations each year, including Section 106
NHPA and NAGPRA reviews. The federal government takes many more actions
affecting the Native Hawaiian community than are covered by these two
statutes without ever giving Native Hawaiians an opportunity to
consult. This must change.
Ensuring Native Hawaiians are informed of all proposed federal
actions and allowed to voice their comments and perspectives on them
will help to correct this country's historic wrongs against Native
Hawaiians. Moreover, this will also improve the quality of federal
undertakings and projects. Federal consultation with entities that
serve Native Hawaiians such as OHA, DHHL, NHEC, POL, and the Native
Hawaiian Health Care Systems enables Native Hawaiians to access this
basic tenet of self-determination--having a meaningful say in our own
governance. We urge this Committee to pass legislation requiring
meaningful federal consultation across the entire federal government
and to extend these rights to all Native Americans, including Native
Hawaiians.
(2) Support federal programs for Native Hawaiians
While consultation is critical to self-determination, so is the
provision of the resources and governmental programs to provide for the
health, housing, education, and economic well-being of Native
Hawaiians. Chairman Schatz and the other members of our congressional
delegation have ensured that Congress continues to fund our essential
federal programs annually; however, three of these acts must now be
reauthorized, strengthened, and expanded by the Congress.
Over the past several decades, the Native Hawaiian Health Care
Improvement Act (NHHCIA), the Hawaiian Homelands Homeownership Act
(HHHA), and the Native Hawaiian Education Act (NHEA) have enabled
Native Hawaiians to receive culturally appropriate services relating to
health, housing, and education. These Acts have delivered services to
tens of thousands of Native Hawaiians through diverse programs
including revitalizing the Native Hawaiian language, building and
maintaining homes and infrastructure, and providing telehealth services
during a global pandemic. Further, the Native Hawaiian Revolving Loan
Fund (NHRLF)--administered by OHA--and the U.S. Treasury's Community
Development Financial Institutions Fund's (CDFI Fund's) Native American
CDFI Assistance Program have supported the emergence and growth of
thousands of Native Hawaiian businesses. We urge this committee to
reauthorize, strengthen, and expand all these programs to further
support Native Hawaiian self-determination.
Native Hawaiian Health Care Programs
Native Hawaiian self-determination in health care means that Native
Hawaiians have the power to choose the health care services most needed
in their communities. Similar to our Native relatives on the continent,
Native Hawaiians face disproportionate threats to our physical and
mental health, including poverty, \5\ suicide and depression, \6\
infant mortality, \7\ alcohol abuse, \8\ homelessness, \9\ and
prejudice. Native Hawaiian infants are twice as likely to die (infant
mortality rate of 7.9 per 1,000 live births) than their White peers
(infant mortality rate of 3.5 per 1,000 live births) in the State of
Hawai`i. \10\ Native Hawaiians are also more likely to suffer from
coronary heart disease, diabetes, and asthma than non-Native Hawaiians
in the State. \11\ Nearly 16,000 Native Hawaiians suffer from diabetes
and more than 36,000 suffer from asthma. \12\
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\5\ Anita Hofschneider, Poverty Persists Among Hawaiians Despite
Low Unemployment, HONOLULU CIVIL BEAT (Sept. 19, 2018), https://
www.civilbeat.org/2018/09/poverty
-persists-among-hawaiians-despite-low-unemployment/.
\6\ NATIVE HAWAIIAN MENTAL HEALTH AND SUICIDE, OFFICE OF HAWAIIAN
AFFAIRS (Feb. 2018), http://www.ohadatabook.com/HTH_Suicide.pdf.
\7\ Ashley H. Hirai et al., Excess Infant Mortality Among Native
Hawaiians: Identifying Determinants for Preventive Action, AM. J. OF
PUB. HEALTH (Nov. 2013),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3828695/pdf/
AJPH.2013.301294.pdf.
\8\ NATIVE HAWAIIAN HEALTH STATUS, OFFICE OF HAWAIIAN AFFAIRS 22
(July 2019), http://www.ohadatabook.com/NHHS.html.
\9\ ISSUE BRIEF: COVID-19 AND NATIVE HAWAIIAN COMMUNITIES, NATIVE
HAWAIIANS OVER-REPRESENTED IN COVID-19 AT-RISK POPULATIONS, OFFICE OF
HAWAIIAN AFFAIRS 2 (2020).
\10\ Hirai, supra note 7.
\11\ OFFICE OF HAWAIIAN AFFAIRS, supra note 9 at 2.
\12\ Id. at 1-2.
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To address the major health disparities then apparent, Congress
enacted the precursor to NHHCIA in 1988, which was most recently
reauthorized in 2009. The NHHCIA established the Native Hawaiian Health
Care program, which funds the Native Hawaiian Health Care Systems
administered by POL. Together the five Systems on the islands of
Kaua'i, O'ahu, Maui, Moloka'i, and Hawai'i provide primary health care,
behavioral health, and dental services. They also offer health
education to manage disease, health related transportation, and other
services. The Systems serve tens of thousands of patients across the
State each year. NHHCIA also established the Native Hawaiian Health
Scholarships Program for Native Hawaiians pursuing careers in
designated health care professions. It supports culturally appropriate
training and the placement of scholars in underserved Native Hawaiian
communities following the completion of their education. More than 300
scholarships have been awarded through this program and more than 98
percent of program alumni are now licensed and practicing in Hawai'i.
According to POL, the pandemic has highlighted the urgent need for
several amendments to the NHHCIA. OHA and POL have advocated for
increased funding to the Systems and removing the matching requirements
in parity with other Native health care centers; applying 100 percent
of the Federal Medical Assistance Percentage (FMAP); expanding Federal
Tort Claims Act coverage to POL, the Systems, and their employees in
parity with other Native health care centers; allowing federal program
funding to be used to collect and analyze health and program data which
currently falls under the ten percent administrative cost cap for the
program; allowing the Systems to be eligible for supplemental federal
funding streams; and providing a tax exemption for the scholarships
program. Additionally, POL has established partnerships with other
organizations to reach Native Hawaiians living across the country,
offering capacity building, technical assistance, and workshops to
promote holistic health and well-being as Native Hawaiians. Through
POL's partnerships, it can care for all Native Hawaiians, including
those unable to access the Systems in Hawai'i. We urge the Committee to
support increased funding for, reauthorization of, and expansion of the
NHHCIA, including these amendments so that POL and the Systems may be
able to expand what they can accomplish.
Native Hawaiian Housing Programs
The HHHA facilitates Native Hawaiian self-determination by
supporting part of DHHL's mission--to develop and deliver land and
housing to Native Hawaiians. Congress enacted the HHHA in 2000. The
HHHA established the Native Hawaiian Housing Block Grant (NHHBG)
program and the Section 184A Loan Guarantees for Native Hawaiian
Housing. The NHHBG provides much needed funding to DHHL to deliver new
construction, rehabilitation, infrastructure, and various support
services to beneficiaries living on DHHL lands. The 184A Loan Guarantee
program provides eligible beneficiaries with access to construction
capital on DHHL lands by fully guaranteeing principal and interest due
on loans. The program currently serves owner-occupant single family
dwellings on the DHHL lands. Together, these programs help DHHL to
carry out the vision of our Prince Jonah Kuhio Kalaniana'ole, who as
the then-Territory of Hawai`i's Congressional Delegate 100 years ago,
spearheaded one of the first Acts of Congress implementing the trust
responsibility to Native Hawaiians.
Like other Native communities, housing has become even more vital
during this pandemic. Prior to the pandemic, Native Hawaiians faced one
of the most expensive housing markets in the country. In fact, Native
Hawaiians made up nearly half of the homeless population on the island
of O`ahu, \13\ whose population accounts for approximately two thirds
of all State residents. To address housing needs, DHHL has used NHHBG
funds for emergency rental assistance for eligible Native Hawaiians;
rental subsidies for lower income elderly; rehabilitation of homes
primarily for elderly or disabled residents; homeownership
opportunities for lower income working families; and homeownership and
rental counseling to address barriers experienced by Native Hawaiians.
---------------------------------------------------------------------------
\13\ OFFICE OF HAWAIIAN AFFAIRS, supra note 9 at 2.
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Despite these efforts, DHHL estimates that they would need $728
million over the next two fiscal years to develop a minimum of 1,700
homestead lots statewide, provide needed loan financing, and carry out
rehabilitation projects by which the general welfare and conditions of
Native Hawaiians can be improved. Unfortunately, even that sum is not
enough to provide every DHHL applicant with a parcel. OHA appreciates
Chairman Schatz's active role in ensuring that DHHL is included in
COVID-19 relief for housing and related assistance. We urge this
Committee to support increased funding for, reauthorization of, and
expansion of the NHHBG and 184A Loan Guarantee programs as well.
Programs Supporting the Economic Well-Being of Native Hawaiians
Economic well-being and opportunity are central to the ability of
any community to exercise self-determination. Unfortunately, the
pandemic has devastated Hawai`i's job market. Unemployment in the State
has skyrocketed, and recovery efforts continue to lag. The U.S. Bureau
of Labor Statistics reports that as of December 2020, Hawai`i had the
highest unemployment rate in the United States at 9.3 percent. \14\
Unemployment is unlikely to decrease significantly in the near future
because one of our biggest industries--tourism--continues to be
severely impacted. According to preliminary statistics released by the
Hawai`i Tourism Authority's Tourism Research Division, visitor arrivals
were 75.2 percent lower in December 2020 compared to a year ago. \15\
Given that nearly one in four Native Hawaiians are employed in the
service industry closely tied to tourism, \16\ Native Hawaiians will
likely continue to be disproportionately affected during the State's
economic recovery.
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\14\ Unemployment Rates for States, U.S. BUREAU OF LABOR STATISTICS
(Jan. 26, 2021), https://www.bls.gov/web/laus/laumstrk.htm.
\15\ Hawai`i Visitor Statistics Released for December 2020, HAWAI'I
TOURISM AUTHORITY (Jan. 28, 2021), https://
www.hawaiitourismauthority.org/media/6395/december-2020-visitor-
statistics-press-release-final.pdf.
\16\ OFFICE OF HAWAIIAN AFFAIRS, supra note 9 at 3.
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Fortunately, several economic development and access to capital
programs are already in place to serve Native Hawaiian communities. The
Native American CDFI Assistance Program and NHRLF are both widely
recognized as being effective. Continued support for these and similar
programs are critical to minimizing the negative economic impacts of
this pandemic. For example, in its nearly three decades in operation
under OHA's administration, NHRLF has closed around 2,700 loans valued
at more than $63 million of lending to Native Hawaiian businesses and
individuals. With this in mind, OHA asks the Committee for its support
of Native CDFIs and for programmatic fixes to NHRLF, including ending
the demonstration status of the program, removing restrictions on
outdated unallowable loan activities, and reducing the Native Hawaiian
ownership percentage requirement from 100 to 50.
In spite of these successes, more programs to support the economic
well-being of Native Hawaiians are needed. OHA asks that the Committee
explore opportunities to promote economic development and access to
capital in Native communities. For example, OHA supports Chairman
Schatz's PLACE Act, introduced last Congress. OHA also asks that the
Native Hawaiian community be included in these kinds of programs now
serving Native American communities.
Native Hawaiian Education Programs
The self-determination framework supports the reclamation and
revitalization of Native identity through culture-based education and
language programs supported through programs like the NHEA. Congress
passed the NHEA in 1988 and most recently reauthorized the Act in 2015.
The NHEA established the Native Hawaiian Education Program (NHEP). This
program offers competitive grants to fund the development of innovative
education programs to assist Native Hawaiians and to supplement and
expand Native Hawaiian cultural-based education. Evidence shows that
educating students through the use of their own culture and language
leads to better academic and behavioral outcomes for students.
In 2011, Ms. Namaka Rawlins of `Aha Punana Leo, a renowned `Olelo
Hawai`i (Hawaiian language) immersion preschool and the oldest Native
American language immersion non-profit in the United States, testified
before the Committee about the successes of their preschool and the
language immersion movement generally. At the time, Ka Haka `Ula o
Ke`elikolani at the University of Hawai`i at Hilo offered the only
Ph.D. in the world that focused solely on Native language and culture
revitalization.
This Hawaiian language college provides curriculum for various
levels of immersion education, including a laboratory school for
Kindergarten through 12th Grade. Their rate of success is stunning.
Hawaiian immersion laboratory school had a 100 percent high school
graduation rate and an 80 percent college entrance rate. These rates
have remained steady for more than ten years, supporting the conclusion
that culture-based education and Indigenous language programs are
reliably and overwhelmingly successful.
Moreover, Native Hawaiian language advocates like Ms. Rawlins and
other pioneers in `Olelo Hawai'i education have played critical roles
in Native language revitalization efforts. They are ambassadors of
aloha throughout Indian Country, even serving in leadership positions
at the National Indian Education Association (NIEA) and affiliated
tribal organizations intent on revitalizing their Native languages.
The successes of the Native Hawaiian education movement are
understood throughout the community. According to conversations with
NHEC, in 2017 and 2018 alone, the 38 NHEP grantees served 95,458
individuals, including 74,311 students, 18,429 parents, and 2,718
teachers. They surpassed their target number for participants by
approximately 65 percent. Additionally, all 38 grantees targeted
serving Native Hawaiian communities and formed almost 700 strategic
partnerships with schools, government agencies, or cultural
organizations to expand the number served and to increase the overall
impact of their programs.
Despite the great work of NHEP grantees in recent years, the
effects of the pandemic still threaten the survival of some grantees
and widen existing disparities between Native Hawaiian students and
their non-Hawaiian counterparts. Even before the pandemic, data
collected in 2015 demonstrated that fewer Native Hawaiian students
attained proficiency in math and reading than their non-Hawaiian
counterparts. \17\ Compounding matters, Hawai`i is considered the state
``most prone to academic risks during the coronavirus outbreak'' and
faces the ``widest gap in the amount of teacher interaction with
lesser-educated households compared with more-educated ones.'' \18\
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\17\ A NATIVE HAWAIIAN FOCUS ON THE HAWAI'I PUBLIC SCHOOL SYSTEM,
SY2015, OFFICE OF HAWAIIAN AFFAIRS 9 (2017).
\18\ Alex Harwin & Yukiko Furuya, Coronavirus Learning Loss Risk
Index Reveal Big Equity Problems, EDUCATIONWEEK (Sept. 1, 2020),
https://www.edweek.org/policy-politics/coronavirus-learning-loss-risk-
indexreveals-big-equity-problems/2020/09.
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Non-profit education programs, particularly language immersion
programs, have faced unique hardships amid the pandemic. With the
arrival of new COVID-19 strains in Hawai`i, Native Hawaiian students
face a precarious situation. To further aggravate this risk, nearly ten
percent of Native Hawaiian households do not have a computer in their
homes, while nearly 20 percent do not have Internet access. \19\ During
the pandemic, many families have been unable to afford the cost of new
equipment and broadband service because formerly working adult parents
are now unemployed.
---------------------------------------------------------------------------
\19\ OFFICE OF HAWAIIAN AFFAIRS, supranote 9 at 3.
---------------------------------------------------------------------------
OHA again appreciates Chairman Schatz's leadership in finding ways
to assist Native Hawaiian educators through these difficult times.
Unfortunately, despite these efforts, our programs and keiki (children)
are still at risk. We urge the Committee to ensure that Native Hawaiian
programs and service providers be included in all future federal relief
efforts, that the NHEA be reauthorized, that its scope be expanded, and
that its annual funding be increased.
(3) Ensure parity in the treatment of all Native Americans, including
American Indians, Alaska Natives, and Native Hawaiians
Again, through more than 150 Acts, Congress has established its
trust responsibility to Native Hawaiians based on our status as the
Indigenous, once-sovereign people of Hawai`i. As a result of those
Acts, this Committee has the duty to ensure that the federal government
implements the trust responsibility fully and equally to all Native
Americans, including Native Hawaiians. As Chairman Schatz recently
stated, the trust responsibility ``should be the guiding light'' of
this Committee's work. While the federal trust responsibility may be
implemented differently to Native Hawaiians because of our unique
history with the United States, that trust responsibility nonetheless
still exists.
As a Native Hawaiian leader elected to ensure the well-being of the
Native Hawaiian community, I urge this Committee and the Congress to
ensure that Native Hawaiians have the same opportunities as other
Native Americans to engage in self-determination. OHA asks you to
empower all Native Americans, including Native Hawaiians, with the same
opportunity to choose their own path--understanding that each tribe,
band, nation, pueblo, village, or community is best served through
their unique, self-determined means. This necessarily includes
extending access to federal programs implementing the trust
responsibility to Native Hawaiians where appropriate, and where
consistent with Native Hawaiians' unique history and evolving political
relationship with the United States.
OHA celebrates our involvement with the Alaska Federation of
Natives, the National Congress of American Indians, and the NIEA, and
we pledge to support and work with our Native cousins across the
continent and in Alaska because all of us--American Indians, Alaska
Natives, and Native Hawaiians--are strongest when we stand and work
together.
In closing, I wish to express my appreciation and gratitude to both
the Chairman and the Vice Chairman for taking on this responsibility.
It has been an honor to have had this opportunity to address you and
your Committee members. I have included OHA's previous testimony from
your December 9, 2020 hearing and am incorporating it by reference. *
---------------------------------------------------------------------------
* The information referred to has been retained in the Committee
files.
---------------------------------------------------------------------------
I stand ready to assist you in accomplishing this most important
work, both now and in the future. A hui hou. Until we meet again.
The Chairman. Thank you.
Next, we have Julie Kitka, President and CEO of Alaska
Federation of Natives.
STATEMENT OF JULIE KITKA, PRESIDENT, ALASKA FEDERATION OF
NATIVES
Ms. Kitka. Thank you, Mr. Chairman. Thank you for inviting
us to testify. I congratulate you and Vice Chair Murkowski in
your selection as the leadership of the Committee. I also want
to thank Senators Rounds, Cortez Masto and Smith for joining in
the hearing today. At least I see them on the screen. Thank you
so much for your attention to these issues. They are very
important.
First, I want to say the significance of this hearing
cannot be overstated. It is critical, and we are not done with
the pandemic. We are still in the midst of the pandemic.
At the beginning of our first awareness of the pandemic, we
had a briefing by CDC in January of 2020, and at that time,
there was about 571 cases of the virus worldwide. The
trajectory of the virus was to be an epidemic, not a pandemic.
Now, a year later, we see how far it has spread, and no matter
how remote and isolated we are in Alaska, we knew that we would
be protected for some time by the isolation, but it clearly has
hit our communities.
I want to say what our priorities were at the beginning of
the pandemic, and they remain our priorities today, is one, to
support our tribal health system, secure the resources that
they need, for the health professionals that work for them,
including the rapid testing, the personal protective equipment,
medical supplies and ventilators. We also put as a priority to
work whatever way we could to save lives. Third was to focus on
vulnerable populations that sometimes are more at risk than
others within their population. Fourth was to support the
recovery of our economy, because of the collapse of many
sectors of the economy due to the shutdowns and the pandemic.
This is a concern nationwide as well as often worldwide.
But also to continue the engagement with different partners
during the process of this pandemic, continue to flatten the
curve, continue to expand distribution of the vaccine, and now
to make sure that as the virus mutates and variants are named,
if there is a booster shot that needs to be added to the mix of
the vaccinations, that Native Americans and Alaska Natives and
Native Hawaiians participate in that as rapidly as the priority
of the vaccination that has gone out so far.
And I want to thank you very much for the resources that
you have put out to deal with this pandemic, but also
respectfully remind you, we are still in the midst of that.
One thing that we took to heart at the beginning of the
pandemic is the pandemic required us to call upon our
traditional values and our caring for one another, leaving no
one behind. I am really pleased to say that that is how we are
making it through, and that is how we will continue to make it
through.
I want to do a shout-out to one group that there hasn't
been really too much knowledge about during this pandemic, and
that is to the U.S. military. One of the successes that we can
point to at the beginning of the pandemic is a Federal-medical
partnership in which we were able to call upon active duty
military to reach into their deep supplies.
At a time when we only had 15 swabs in two major hospitals,
that is all we had, they were able to reach into their supplies
and release 45,000 pieces of personal protective equipment and
medical supplies. Undoubtedly, that partnership has saved lives
to date, and that partnership extends to the time when we were
able to obtain rapid testing equipment on that, where we even
loaned some of the rapid testing equipment to the active duty
military to help them continue in their mission at the same as
they were protecting lives.
So I want you to know that, and when you speak with them in
other venues on that, understand our deep appreciation. We know
it has saved our peoples' lives. Again, at that time, we only
had 15 swabs.
I also wanted to say that we are very grateful for the
attention that this Administration and this Committee gives to
American Indians, and Alaska Natives and Native Hawaiians. We
all have unique forms of self-determination, based on our laws.
Rules have been put into place. But we are all brothers and
sisters, and we all need to work together. I hope that whatever
efforts you put forward incentivize inter-tribal cooperation
and collaboration, and inter-regional tribal collaboration and
cooperation, so that we can get through this pandemic in better
shape than we were when we started.
President Fawn noted that we have much work that needs to
be done in infrastructure and many areas of our communities
have been left behind on that. I want to thank you that we have
made much progress in the last few decades, but we just need to
continue to leave no one behind and move forward.
So I want to thank those who have brought us to where we
are today, and urge you to continue to focus on that. The
Native American people, I know from our perspective, are ready
to stand up to the challenge of rebuilding the economies and
recovering from this and keeping our people as safe as
possible.
I also want to ask that testimony, the time for extending
written testimony be extended. We want to supplement our
testimony. We didn't have a lot of time to put together our
testimony, and we know that other member organizations, both
our tribes, our tribal consortiums, and our Native corporations
will have specific ideas that they will want to put into the
mix. We want to make sure that we can supplement our testimony.
In summary, and I want to close on that, is yesterday, we
understand that the House marked up $1.9 billion in COVID-19
relief that will be considered in the Senate next week. That
includes numerous programs that will affect Native Americans,
programs for our tribes, for our health departments and
hopefully our health corporations as well. Of the $1 billion
that is specifically allocated for tribes, we recommend that be
increased to $2 billion, and the remaining $18 billion be
allocated by the Secretary of Treasury.
We urge that the Committee gives the Secretary of Treasury,
because Treasury is not that familiar with dealing with Native
Americans, gives some sidebars, some guidance to them as they
distribute that. Because we really need to make sure that there
is equity and that it is informed distribution as opposed to
making mistakes.
We recognize there are huge amounts of resources being put
into that, and we want to be able to stretch those resources as
far as possible and make as much progress in the recovery that
is humanly possible, using the best innovation, using the best
logistics, using the best leap forward in technology. But
really, use that as seed funds to leap ahead and not only
contribute to savings our people's lives and recovering our
health systems from the drain on their resources during this,
but also make sure that we have the infrastructure that we need
to push ahead. We don't want to be left behind as the new
economy unfolds and rebuilds in our Country. We want to be
contributing both for our people but also to the larger
society.
We also want you to think about parameters around those
resources to take into account real poverty. It is real. We
have districts in our State that are among the 10 top poorest
areas in the entire Country. We should make sure that that is
one of our goals, is to leave no one behind.
And look at unemployment rates, real unemployment rates,
not just people who have stopped looking for jobs or never had
jobs. Look at real human needs. We note that in one section of
the report, there is quite a bit of resources there in water
and resources. But when you look at what goes into the Indian
Health Service on water and sanitation needs, we have 30 plus
communities that have no water and sanitation. Even during this
pandemic, they have to haul up ice and melt it. Can you imagine
trying to wash your hands five, six times a day with basically
melted ice?
The Chairman. We will keep the record open for additional
testimony. If you could wrap up your remarks, we will be happy
to get right into the questions. Thank you very much.
Ms. Kitka. Yes. My wrap-up is, we have a different model of
self-determination in Alaska, which is based on our land claims
settlement, which was the historic largest land claims
settlement in the history of the United States, nearly 50 years
ago. In that land claims settlement, Congress directed us to
form a for-profit Native corporation, so we would have our land
and resources. So we do have a different model of tribal self-
determination in Alaska that includes both federally recognized
tribes and our Alaska Native corporations and our tribal
consortiums.
We would like you to take into account that the way that we
deploy our organizations, we view them all as tools for the
Native people, for the empowerment of the Native people, for
the well-being of the Native people. We urge that you not
exclude different segments of our Native community, because of
the way that we are structured differently.
In conclusion, I would be glad to answer any questions.
Thank you.
[The prepared statement of Ms. Kitka follows:]
Prepared Statement of Julie Kitka, President, Alaska Federation of
Natives
Thank you for this opportunity to testify. Before I begin, I want
to congratulate Senator Schatz and Senator Murkowski for being
unanimously elected as the Chairman and the Vice-Chairman of the Senate
Committee on Indian Affairs for the 117th Congress. I would also like
to welcome Senator Ben Ray Luj n to the Committee. On behalf of the
Alaska Federation of Natives, we look forward to working with the
Committee and thank you for making your first oversight hearing a call
to action on the priorities of American Indian, Alaska Native, and
Native Hawaiian communities. I would also like to thank Chairman
Senator Schatz, Vice-Chair Senator Murkowski, and the Committee for
being flexible and allowing me to testify today. I additionally
appreciate the hearing record being kept open for the two week period
to allow us to supplement our statement for the Congressional record.
Formed almost 55 years ago to achieve a fair and just settlement of
Alaska Native aboriginal land claims, AFN is the oldest and largest
statewide Native membership organization in Alaska. Our membership
includes 168 sovereign Alaska Native tribes, 166 for-profit village
Native corporations, 9 for-profit regional Native corporations
established pursuant to the Alaska Native Claims Settlement Act, and 12
regional nonprofit tribal consortia that contract and compact to
administer federal programs under the Indian Self-Determination and
Education Assistance Act. The mission of AFN, among other things, is to
advance and enhance the political voice of Alaska Natives on issues of
mutual concern. Today, we represent more than 120,000 Alaska Natives
through our members, which we interface with year-round and each
October during our three-day Annual Convention to set the Alaska Native
community's federal, state, local, and tribal priorities for the coming
year.
AFN would like to offer testimony today on the need to create
equity among indigenous peoples, federal agencies, policies, and
programs. AFN was pleased to see President Biden's Executive Order on
Advancing Racial Equity and Support for Underserved Communities Through
the Federal Government. Ensuring equity in federal programs is
critical, because as you will hear from our communities, disparities
entrenched in our laws and policies, and in our public and private
institutions, have created barriers for individuals and our Native
communities to overcome. As such, AFN asks the Committee on Senate
Committee on Indian Affairs to seriously consider increasing your time
and investment in interagency or ``whole of government'' initiatives to
root out systemic barriers and create holistic cross-cutting solutions
for key outcomes for increasing equity among federal programs,
services, and policies that affect our American Indian, Alaska Native,
and Native Hawaiian Communities. Further, AFN requests the Committee to
encourage inter-tribal and inter-regional tribal coordination and
collaboration to empower all Native Americans to address serious needs
and come back from this pandemic stronger and able to help our people
and continue to contribute to the larger society.
First, I would like to offer an overview of Alaska's unique form of
Tribal Self-Governance and Native Self-Determination. Alaska is
different. The state and its people, as observed by the U.S. Supreme
Court in Sturgeon v. Frost, are often the exception, not the rule. This
is especially true for Alaska Natives as compared to American Indians.
While both Alaska Natives and American Indians are distinct sovereign
entities that predate the formation of the United States, they differ
in the way they govern their lands and members. American Indians
generally operate through a single entity--their respective tribe--
which exercises both inherent self-governance powers and self-
determination rights over the tribe's lands and members. Alaska
Natives, on the other hand, generally operate through three distinct
but interrelated entities--the respective tribe, corporation (regional
and village), and tribal nonprofit organization--which share self-
governance and self-determination responsibilities for Alaska Native
lands and peoples. Under Alaska's unique form of tribal self-governance
and Native self-determination, Alaska Native tribes retain the inherent
sovereign authority to govern their members. ANCs and tribal
organizations do not possess self-governance powers. Rather, ANCs
manage (and own) Alaska Native lands, and tribal organizations provide
social services to Alaska Natives in their respective `service
population' and `service delivery area,' and through this join Alaska
Native tribes in furthering the self-determination of Alaska Natives.
Housing
2021 marks the 25th anniversary of Congress passing the Native
American Housing and Self Determination Act (NAHASDA). This legislation
was and continues to recognize tribal sovereign rights to develop
housing that meets the needs of our communities. Housing conditions in
Indian country are well documented as being some of the worst of the
worst in our Nation. Alaska Natives suffer from escalating and above
national average rates of overcrowding, inadequate housing, and
unemployment, in comparison to the general U.S. population, as well
within the Native American population. The rate of overcrowding, or
severe overcrowding, is such that Alaska needs more than 16,100 housing
units to alleviate overcrowding. \1\ Having adequate and safe housing
is part of the bedrock for our communities, without safe and adequate
housing, our communities suffer. Due to stalemates in funding housing
in our communities has become less available, and overcrowding and poor
housing has shown to not only affect our children performance, but it
also puts our way of life at risk. In my ability to address the housing
shortage in our Native communities, AFN would like to highlight the
first-ever Senate Committee on Indian Affairs field hearing in rural
Alaska. The hearing was held in Savoonga Alaska, a small, isolated
community on St. Lawrence Island between Russia and mainland Alaska in
the Bering Sea. The field hearing addressed overcrowded housing and the
impacts on American Indian and Alaska Natives, a panel of witnesses
gave testimonials to the issue as well as solutions to overcrowded
housing and housing affordability across Alaska. As such, AFN urges the
Senate Committee on Indian Affairs to review the recommendations from
the witness panel and to host an oversight hearing on the inequities in
housing programs and policies in our communities in the 117th Congress.
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\1\ Association of Alaska Housing Authorities 2021 Federal
Priorities
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Another immediate Committee recommendation is to prioritize the
reauthorization of the NAHASDA \2\ and to authorize funding for the
Indian Housing Block Grant at no less than $800 million, with
subsequent fiscal year increases of $50 million per year until
inflationary reductions have been recovered. \3\ NAHASDA allocates over
$90 million each year to Alaskan Tribes and communities and is the
primary vehicle for meeting critical housing needs. These efforts are
driven through Alaska's Tribes and Tribally Designated Housing Entities
which are sophisticated in leveraging funds to develop projects with
multi-layered funding sources with NAHASDA as the foundation for
building these complex funding packages.
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\2\ AFN Convention Resolution 19-27
\3\ AFN Convention Resolution 19-26
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AFN also encourages the Committee to review the Bureau of Indian
Affairs Housing Improvement Program (BIA HIP) as an opportunity to
address the housing needs of our communities. After being funded at
$23.1 million in 2005, the BIA HIP was eliminated from the FY 2008
budget to fund other high priorities. In FY 2020, the BIA HIP program
was funded at approximately $11 million. For additional background,
Alaska's demonstrated need in 2019, based on eligible applicants,
exceeded $436 million. \4\ As such, AFN urges Congress to fund the BIA
HIP with an appropriation amount of $23 million. \5\
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\4\ Association of Alaska Housing Authorities 2021 Federal
Priorities
\5\ AFN Convention Resolution 19-25
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Public Safety
Many Alaska Native villages have no local law enforcement or police
of any kind. For example, in May of 2019, 98 tribal communities in
Alaska had no state-funded law enforcement, and about 70 of those
communities had no local police of any kind. Jurisdictional and
geographic barriers consistently prove too high a burden for
traditional law enforcement, and health systems to overcome, resulting
in disproportionate rates of heath, physical and sexual violence.
According to the Indian Law Resource Center, nearly half of all Native
women have experienced sexual violence. Alaska Native women continue to
suffer the highest rate of forcible sexual assault and have reported
rates of domestic violence up to 10 times higher than in the rest of
the United States. A new approach with more tribal input, authority,
and control is needed to address the inequities in our public safety
system.
The public safety crisis in rural Alaska was elevated, on June 28,
2019, when former U.S. Attorney General William Barr took a significant
step to remedy the public safety plight of hundreds of thousands of
Alaskans, the majority of which are Alaska Natives, by declaring a
federal law enforcement emergency in rural Alaska. The historic
declaration made more than $10 million dollars in U.S. Department of
Justice (DOJ) funds immediately available to Alaska Native tribes and
tribal organizations to address short-term critical law enforcement
needs in the state's more than 200 rural Native villages and identified
almost $175 million more than tribes and tribal organizations could
utilize to support long-term public safety efforts. U.S. Attorney
General William Barr also pledged to support a more efficient funding
mechanism within DOJ to include compacting authority. It is critical
that we move off grant funded public safety to a more durable path of
compacting. In our last meeting with AG Barr, he requested the legal
tools to have DOJ be able to compact. Unfortunately this was not
accomplished, and should be a Committee priority to authorize.
Following former U.S. Attorney General William Barr emergency
declaration, U.S. Senator Lisa Murkowski introduced S. 2616, The Alaska
Tribal Public Safety Empowerment Act. S. 2612, alongside Congressman
Young's pilot program, was received favorably by the Alaska Native
community as an innovative step to address the public safety crisis in
our Alaska Native communities. The legislation, which builds on the
pilot program U.S. Congressman Don Young inserted into the House-passed
version of the Violence Against Women Act of 2013, would allow five
federally recognized Alaska Native tribes to prosecute individuals who
commit certain offenses within their villages on a pilot basis
regardless of tribal citizenship. S. 2616 authorizes the pilot tribes
and inter-tribal organizations to exercise civil jurisdiction over all
persons in their villages for all civil crimes; and authorizes the
tribes and tribal organizations to exercise special criminal
jurisdiction over all persons--including non-Natives--for crimes
involving domestic violence; dating violence; sexual violence;
violation of a protective order; stalking; sex trafficking; obstruction
of justice; assault of a law enforcement or corrections officers; any
crime against a child; and any crime involving the illegal possession,
transportation, or sale of alcohol or drugs. AFN strongly encourages
the Senate Committee on Indian Affairs to support the passage of the
Alaska Tribal Public Safety Empowerment Act or similar language in the
117th Congress. \6\
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\6\ AFN Convention Resolution 20-10
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AFN commends the passage of Savannas Act and the Not Invisible Act
of 2019 in the 116th Congress. AFN urges this Committee to continue its
efforts to address the public safety crisis in our Native communities
in the 117th Congress. As stated above, AFN does not believe a tribal
public safety network can be funded through short term grants, this is
not an equitable solution. AFN urges the Senate Committee on Indian
Affairs to support the expansion of compacting and contracting
authority for Department of Justice programs and funds to tribes to
ensure a stable funding source as opposed to grants.
Recovering from the Covid-19 pandemic
The COVID-19 pandemic has underscored the faultiness in Alaska's
government services and the weaknesses of Alaska's rural economy,
hitting Alaska Natives especially hard. Persistent poverty and severe
economic hardship have plagued our communities for generations. In
Alaska 23.8 percent of American Indian or Alaska Natives lived in
poverty in 2017. \7\ As it is nationally, the percentage of American
Indian or Alaska Natives is higher than any other group. As of today, I
am happy to report that Alaska and specifically, the Alaska Tribal
Health system leads the nation in vaccination rates. While this is
great news and trend, it does not diminish the damage and trauma that
this pandemic has caused.
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\7\ Date from the 2017 U.S. Census Bureau American Community Survey
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Alaska tribes, along with their tribal health organizations,
corporations, and nonprofits, are playing a critical role in responding
to Alaska's novel coronavirus challenges, working diligently to stop
the spread of, and promote recovery from, the COVID-19 pandemic. Alaska
Native communities have historically been disproportionately impacted
by pandemics. Because of the health conditions that the Centers for
Disease Control and Prevention (CDC) notes increase the risk for a more
serious COVID-19 illness, including respiratory illnesses, diabetes,
and other health conditions, we are extremely concerned. As a result,
Alaska tribes are currently providing essential services to their
communities and dedicating resources to the unique circumstances of
COVID-19 response that would otherwise be used on economic development
opportunities.
AFN is confident that Alaska Natives have the track record,
capabilities, and knowledge to help get Alaska back on track. The Biden
Administration with oversight and input from the Senate Committee on
Indian Affairs can partner with Alaska tribes to identify effective
economic stimulus programs that can be tailored to the unique
circumstances in our Native communities including Alaska's unique
system of self-determination and tribal governance. U.S. financial and
tax incentives can increase both local and expanded investment in their
villages--which can lead to stronger and more responsive economic
performance levels and desperately needed jobs--and overcome the
challenges posed by low population and lack of economies of scale.
One immediate solution is to support Native participation in the
New Market Tax Credit by creating a 10 percent set aside in the program
for tribal communities. The NMTC program was established in 2000 to
encourage private investment in impoverished, low-income communities
that traditionally lack access to capital for infrastructure projects
of the kind needed for broadband buildout. Investors who make qualified
equity investments reduce their federal income tax liability by
claiming the credit. Unfortunately, NMTC activity has been highly
concentrated in just a few states, with the 10 states with the highest
activity accounting for over 50 percent of all NMTC activity. The 25
states with the least NMTC activity, including Alaska, account for less
than 13 percent of all activity. Furthermore, the current NMTC program
has no built-in mechanism to ensure that NMTC investments reach Native
American communities.
Additionally, with the support of AFN, the Alaska and Hawaiian
Congressional Delegation introduced legislation to create a domestic
version of the Millennium Challenge Corporation (MCC) in the 116th
Congress. MCC is an independent federal agency established in January
2004 to deliver foreign aid in an innovative way. It provides time-
limited grants to developing countries that meet certain standards of
governance. The aid is designed to promote economic growth, reduce
poverty, and strengthen institutions. MCC's focus areas include health,
education, energy and power, and transportation infrastructure. The
legislation introduced in the 116th Congress directs the Secretary of
the Interior to establish demonstration projects like the MCC to assist
remote Alaska Native and Native Hawaiian communities with economic
development and poverty reduction in a manner that promotes self-
determination and self-sufficiency and authorizes $8 million in funding
for fiscal years 2020 through 2025. Neither the House or Senate bill
were heard in Committee and as such, AFN urges the Senate Committee on
Indian Affairs to consider this option as an innovative solution to
help our Native communities recover from the Covid-19 pandemic.
Broadband
The digital divide among Alaska Native, American Indian, and Native
Hawaiian communities is among the worst in the nation. According to a
2019 report by the Federal Communication Commission (FCC), nearly half
of all Native American and Alaska Native rural households do not have
broadband, leading to poorer health, education, and economic security.
\8\ In rural Alaska, where remote villages lie beyond the state's
limited road system, Internet connectivity serves as the primary link
to the rest of the world, thus supporting that community's economic and
social vitality, just as physical roads do elsewhere. If that link is
unavailable or too slow, too costly, or too unreliable, entire
communities suffer the consequences. This has made COVID-19 prevention
and mitigation efforts especially trying. As a direct or indirect
result of this digital disparity, Alaska Natives and American Indians
have succumbed to the virus at a rate two times higher than non-
Natives.
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\8\ Federal Communications Commission, Report on Broadband
Deployment in Indian Country, Pursuant to the Repack Airwaves Yielding
Better Access for Users of Modern Services Act of 2018 (May 1, 2019),
available at https://www.fcc.gov/sites/default/files/
nnctf_tribal_broadband_report.pdf (last visited Feb. 12, 2021).
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In January 2021, the National Tribal Broadband Strategy (NTBS) was
published by the Department of the Interior. The NTSB includes 28
recommended actions that agencies should take to help address the
digital divide in American Indian/Alaska Native/Native Hawaiian (AI/AN/
NH) communities. The first of these recommendations is to create a new
Broadband Development Program (BDP) within the Office of Indian Energy
and Economic Development. One of the main purposes of the BDP is to
implement the NTBS and coordinate efforts within and beyond the
Department of Interior to drive broadband development. As such, AFN
requests the Senate Committee on Indian Affairs hold an oversight
hearing on broadband deployment in AI/AN/NH communities. Access to
broadband is a barrier for your communities to equally participate in
the world around us and the Senate Committee on Indian Affairs should
seriously consider whether new policies, regulations, or guidance from
the federal government may be necessary to advance equity and urgency
in the deployment of broadband in our Native communities. We also ask
that such a hearing includes a review of the NTBS to gather feedback on
the recommendations contained within the strategy. Additionally, AFN
respectfully requests that Alaska and Hawaii be equally represented in
such hearings.
Conclusion
AFN deeply appreciates the opportunity to present our communities
priorities for the 117th Congress to the Committee. We look forward to
working with the Indian Affairs Committee and its members during this
Congress to advance the interests, priorities, and to redress
inequities in the policies and programs that serve as barriers to equal
opportunities of American Indian, Alaska Natives, and Native Hawaiians.
Quyana, Gunalcheesh, Haw'aa, Baasee, Thank you.
The Chairman. Thank you very much.
We will get right into questions. My first question is very
straightforward. We will go in the order of the testifiers.
What are your top one or two priorities for the coming COVID-19
relief package? I will start with Fawn Sharp.
Ms. Sharp. Thank you for that excellent question. Thank you
so much.
Our main ask is, the provisions that were passed out of the
House, and that is a $20 billion set-aside of the tribal
governments, as we as a set aside for tribal health. We want to
point out that that should be viewed as a minimum. Our
economies are devastated. We are disproportionately impacted by
the pandemic. We are still trying to strategically prepare not
only a public health care recovery but an economic recovery
plan.
We were some of the first in our area to shut down our
businesses. In the absence of having the full spectrum of
taxing and taxing and powers to raise revenues for tribal
governments, we are forced, in our commercial enterprises, to
generate corporate profits. And both of those revenue streams
are compromised.
So we urge this Committee to look at that $20 billion set-
aside as a floor. That would be our top priority, so that we do
have the resources and the United States will fulfill its trust
responsibility.
The Chairman. Thank you very much. We have just over three
minutes left. Let's go to Mr. Forsman and see if we can be as
brief as possible with the top one or two priorities.
Mr. Forsman. I think relief to tribal governments and
tribal government economies is the top one. We are a regional
economic powerhouse in a lot of ways in this area, by providing
a lot of jobs for our people, and people outside out of our
tribes. So that one first, and of course investment in public
health, continued investment in public health would be our top
two.
The Chairman. Thank you very much.
Ms. Lindsey?
Ms. Lindsey. Thank you, Chair. We have many. Very briefly,
Native Hawaiians experience disparities in health care and
economic well-being. The pandemic made it worse. Hawaii has the
highest unemployment rate in the Nation. Tourism, our major
economic engine, has been severely impacted. Many Hawaiians
work in service jobs in this industry. Our health care systems
system, our housing was a major concern for Hawaiians, before
the pandemic, and it is even worse right now.
We urge the Committee to include support for all of our
programs in this relief package. Thank you.
The Chairman. Thank you very much.
Ms. Kitka?
Ms. Kitka. Thank you, Mr. Chairman. Our top priorities
would be housing, the overcrowding in housing, substandard
house. It would greatly improve our people's wellness and
standard of living. Also, expansion of broadband for tele-
medicine and other things, affordability of broadband. The new
markets tax credit extended to give leverage to private sector
and economic recovery. Thank you.
The Chairman. Thank you very much. With my remaining
minutes or so, I am going to ask a couple of questions and take
them for the record. The first is about vaccine hesitancy. I
would like to understand how much vaccine hesitancy there is in
Native communities, and what the Committee can do and what
society can do.
My own view is that these vaccines are miraculous, and that
they are really going to change lives and save lives and give
us our lives back. The trajectory right now in terms of people
participating is a little bit misleading, because obviously,
the people who are getting vaccinated are not the people who
need to be persuaded. There is going to be a remaining cohort
of all population generally across the United States, but
specifically in Native communities, that remains hesitant and
suspicious of the Federal Government. So we would love to work
with our Native leaders on addressing vaccine hesitancy.
Then one final observation is, perhaps there is something
that this Committee can do on tele-health. Certainly, the
jurisdictions are complex. The Finance Committee asserts
jurisdiction correctly because of Medicare. But our ability to
extend health care dollars into rural communities may depend on
our ability to deploy tele-health more aggressively.
With that, I will turn it over to Senator Murkowski.
Senator Murkowski. Mr. Chairman, just to your last point,
know that you have a trusted partner here as we are working out
the broadband and the infrastructure there, and what more we
can do.
I appreciate what has been said about the importance of the
COVID-19 relief dollars, and the significance when we are
talking about State, local and tribal. I guess I will start
with a question to you, President Sharp. As Julie Kitka has
outlined, the service delivery system within the Alaska Native
framework is different than we have in the lower 48 tribes. We
have talked about that. The federally recognized tribes are
authorizing tribal non-profits. The ANC is significant, but
different, different roles in providing services.
So I guess I would ask as we are looking at these tribal
funds, that we are looking at in the House bill, whether or not
NCAI would be supportive of ensuring that when tribes in Alaska
rely extensively on consortia to provide the government
services, which they do, that those consortia should be able to
administer the tribal set-asides.
What you have here, and I don't mean to educate you on
this, but I will just repeat for colleagues, there are services
that are authorized by recognized tribes, but they are
administered by their non-profit. So you have a type of
governmental function that is supported by a tribal government
through the set-asides.
So I guess I want to just hear your assurance or support
that you recognize being able to access those tribal set-aside
funds for our consortia operated governmental services is
something that makes sense, so that we ensure that Alaska
Natives who are served under this sort of framework are not
disenfranchised.
Ms. Sharp. Thank you, Vice Chairman. I really appreciate
that question. Again, I would start by stating that with regard
to tribal nations, we need to ensure that every piece of
legislation that passes through this Congress that defines
tribal governments, that there is a very clear distinction with
sovereign tribal nations and our political status.
So to your question about support for a consortium
providing badly needed services during the pandemic, we
absolutely support that. We give deference to the tribal
governments in Alaska who have longstanding relationships
between their sovereign tribal governments and the consortia
with whom they work.
It is our position at NCAI that under all circumstances, we
support sovereign tribal nations in serving their citizens and
communities. We defer to their decision-making and their
relationships on how and when services are delivered through
consortia.
But we do see in these critical times that everyone needs
to come together to serve the most vulnerable of our Alaska
relatives.
Senator Murkowski. And I think we would agree, that is the
goal here, is making sure that these services are provided. As
you know, we have within our ANCs, they have the ability to
authorize contracts and compacts under the Indian Self-
Determination Act. Effectively what this does is allow for
coverage for about 40,000 to 60,000 eligible Alaska Natives. So
this is not a situation where the ANCs are trying to assert a
level of sovereignty, but just that they are built into the
self-determination system that we have here.
I want to turn, with my remaining time, to you, Julie. I
think you addressed the issue of the unique framework that we
have in Alaska. I think we have seen Alaska's tribes do an
outstanding job during this pandemic, with vaccine
distribution, working with the IHS system. We are leading the
Nation in per capital vaccination rates. But I hear what the
Chairman is saying about vaccine hesitancy, and that is
something that we want to understand.
One of the concerns that I have heard from Alaska Native
leaders is the challenge in the State related to delivery of
services to Alaska Natives. Can you give a little more context
to the unique nature of the structure and system for the
delivery of tribal services in Alaska, recognizing, again, that
it is a cooperative, collaborative, multi-layered approach that
we have within Alaska?
Ms. Kitka. Thank you, Mr. Chairman and Vice Chairman
Murkowski. Yes, we do have a unique system. We describe it as,
our form of self-determination includes Native self-governance
and tribal sovereignty. Our tribes, our federally sovereign
tribes, are sovereign. Our Native entities are not sovereign,
but they are part of our self-determination model.
What we have is, we have, for example, in the health
system, we have tribal health corporations whose boards are
made up of tribal chiefs on that. They have as a matter of law
been required to work together to provide health care systems
primarily because of the geographic distances, the high costs,
the need to pool resources in order to improve the quality of
health care. We cannot have a hospital in every village, but we
can have a clinic in every village. We can have regional sub-
clinics, regional hospitals, and our major hospitals.
So we have tribal consortiums on that, we have tribal
housing authorities for the same reason, to be able to handle
the logistics and pool the resources to stretch them the
furthest. We also have for-profit, our Native corporations
under the ISDEAA, that are enabled to pass resolutions to
authorize services for those who are not tribal members on
that. Many of our people from our tribal communities move into
the urban areas for health care. They move there for
employment. They move there, maybe they marry or migrate, or
there are job opportunities. Without the ability of the
corporations to be considered an authorized service on that,
they get left behind.
So our goal is to have people working together to take the
uniqueness in Alaska, both with our land claims settlement and
our different institutions that we have developed, the
relationships we have developed, stretch these valuable Federal
resources as far as we can to produce results and be
accountable. Thank you.
Senator Murkowski. Thank you. I think that was a good
explanation, and in a way that is understandable.
So thank you, I appreciate that, Mr. Chairman.
The Chairman. Thank you.
Senator Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you. First of all, thank you,
Mr. Chairman and Ranking Member, for having this great
conversation today.
Let me start with Ms. Kitka. There is an area, maybe I will
just open it up to the panel, that I have concerns about, and
that is health access outside IHS. As you all know well,
chronic underfunding of the Indian Health Services put
accessible, quality health care out of reach of too many tribal
nations and communities. We have fallen fall short of our
treaty obligations to provide for the physical, mental, and
spiritual health of Native Americans.
I am hopeful that we will be able to put our attention
toward moving that funding stream over to the permanent side of
the ledger, which is a bipartisan [indiscernible] that has been
in the works for years. I am also hopeful that we can put
significant new resources into the Indian Health Service to
build up a robust provider workforce and establish new points
of access to care and upgrade old facilities.
I also want to ensure that we are providing coverage to
tribal members are not living in tribal lands. We have huge
urban Native populations across the U.S., including in my State
of Nevada. We should be leveraging other health programs like
Medicaid and Medicare to ensure their needs are met.
So I am going to open it up to the panel. Can you talk a
bit about how difficult it can be to access health care outside
of the Indian Health Service? How could we help to address
these access issues? I hear it in my own State, and I am
curious if any of you collaborate.
Ms. Kitka. Through the Chair, Senator Cortez Masto, this is
Julie Kitka. We have a tremendous Indian Health service system
in Alaska. It is based on a feeder system with local clinics
feeding all the way up to regional hospitals to a statewide
hospital. It has been deliberately constructed that way to
stretch resources and drive up the quality of care that is
available to our people.
There are also aspects of contract health care that can do
it. There are many lessons we have learned during this pandemic
that we would like to share with the Committee. So maybe at
some time, there should be a hearing on lessons learned from
the pandemic.
But exercising this Federal medical partnership with the
government that includes the military, that includes the
Veterans Administration and others, is a way to stretch the
resources. We share many things with the Veterans
Administration to improve veterans health care for even non-
Alaska Native veterans. We share many things with the
Department of Defense and the military, and this Federal
medical partnership really should be explored by the Committee
as a way to stretch resources, as well as to expand the
contract support costs.
We really need to put more resources into the tribal health
care system, because they are being tapped to the limit during
this pandemic. They are going in the hole as they close down on
any of their non-emergency services, which they use to
supplement some of their resources.
I would be glad to drop in some recommendations to
supplement the record specifically on your question if that
would be helpful.
Senator Cortez Masto. Thank you.
Mr. Forsman. Senator Cortez Masto, real quick, we don't
have a clinic in Suquamish yet, but we do have a health plan
and we are self-insured. So we are able to provide health
services to tribal members who live outside the reservation by
issuing them a health plan card. They just go the doctor of
their choice if they are in our provider network. It seems to
be working.
But we are in the process of building a clinic here on our
reservation. On the other hand, the urban side, you know about
the urban health clinics as well that have been able to meet
some of that need. Thank you.
Senator Cortez Masto. Anyone else?
Ms. Sharp. Yes, Senator Cortez Masto, I so appreciate your
question.
First of all, it is good to see you, and I always
appreciate the time I can work directly with you. I really
appreciate the point you made recognizing the cultural and
spiritual health of our Native peoples. I would like to respond
by saying that accessing health care beyond IHS is so
critically important for our tribal nations and our citizens.
Because if you look at a western medicine way of making and
delivering health care to our citizens, that falls so
inadequately short of us meeting the needs of our community.
Because our community relies, and has for centuries, on our
traditional foods, our traditional medicines, and other ways of
making our citizenry whole and healthy and vibrant.
When you consider the impacts of climate change and the
devastating impacts that has on actually some of our medicines
disappearing, and our access to traditional foods disappearing,
those are the sorts of things that I can hear that thought in
your question, and I really appreciate that.
So I think we have an opportunity in this period when we
are looking at a comprehensive public health care recovering
system that when it comes to this Country's indigenous peoples,
that we look at the totality of health. Just simply western
medicine is not enough. Thank you.
Senator Cortez Masto. Thank you, Mr. Chairman.
The Chairman. Senator Hoeven.
STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Hoeven. Thank you, Mr. Chairman.
My first questions go to public safety. I would like to
address them to President Sharp.
One of the things we worked on diligently is the safety for
missing indigenous women and children. One of the things I have
tried to do is pass the Savanna's Act, which would ensure that
the funding is there, and you mentioned that in your opening
comments. I appreciate that very much.
Also, you referenced another one of the bills that I have
submitted as well, like Savanna's Act, along with the Chairman
and Ranking Member. I want to thank you for your support of
that legislation, and our continued efforts to build on it.
What I want to turn to for just a minute though is that in
during a Senate Indian Affairs Committee field hearing I held
in North Dakota, one of the things that became very apparent is
that we need more BIA law enforcement officers. We need them
pretty much everywhere, but we certainly need them in the upper
Midwest part of the State.
So one of the things we did was secure $5 million to
develop another training center that is being provided at
Spirit Lake, or very near Spirit Lake Nation, in North Dakota,
at Camp Grafton. I think it is really helpful, and will
continue to be helpful, both to train BIA law enforcement
officers, but also to recruit more. We badly need more. I am
hoping to continue to get support for that effort from my
colleagues on the Committee.
But I would like to ask, President Sharp, do you believe
that a lack of BIA law enforcement officers has a negative
effect on crime on the reservations? Talk a little bit about
how you think that getting more BIA enforcement officers out
there could really make a difference.
Ms. Sharp. Thank you, Senator. I really appreciate your
question as well. You are absolutely right. If we had more law
enforcement officers, we would have more coverage. I see
reports that compare the number of officers per geography and
population relative to our counterparts. That is another
statistic that is alarming for Indian Country. We do not have
parity with other jurisdictions for the number of officers.
You add to that another factor, and that is the pay, the
rate of pay of our officers relative to counterparts. When we
invest in hiring law enforcement but we are not able to pay
them in parity with our counterparts, we become a training
ground. And that is all across Indian Country.
So the limited dollars that we do have to invest in law
enforcement, to just achieve minimum, baseline number of
officers to patrol, they are underpaid. So they go through our
system, they are paid to go to the State academies, and they
are quickly recruited out. So it becomes a revolving door for
Indian Country. Each time there is turnover, that is upwards of
$30,000 from HR standards each time there is turnover.
So you are absolutely right, we need to invest not only in
the number of officers, but so as to avoid burnout and morale
issues, equity pay. That would be a significant investment in
Indian Country and go a long way to providing effective public
health and safety for our citizens.
Senator Hoeven. I agree with you. I think that was
extremely well said. I hope that continues to generate more
support for our efforts to get more BIA law enforcement
officers, to retain them, to train them. I just think it is
incredibly important. I think your comments were spot on.
I would ask any of the other witnesses if they would like
to weigh in on this as well, and I hope express the importance
of this as a real priority for Indian Country.
Ms. Kitka. Mr. Chairman, this is Julie Kitka. I would like
to respond when it is appropriate.
The Chairman. Please do. You are very polite. Go ahead.
Ms. Kitka. Thank you, Mr. Chairman, and thank you, Senator.
That is a crucial question on public safety. In the last
Administration, we had a visit by U.S. Attorney General Barr to
Alaska. It was precipitated by two young people that died that
had been incarcerated in the village lockdown facility for
disorderly conduct and drinking, locked up for their safety and
the community's safety, perished in a fire. It was a really
tragic thing for our community.
Attorney General Barr came up on a village trip to see what
was going on. As a result of his touring our villages and what
public safety capability and facilities we had, he declared a
rural public safety emergency in Alaska. As a result of his and
the Department's team on that, they were to redirect some
resources, a significant amount of resources, to address some
of the concerns.
But I will raise one thing that didn't get done as a result
of this visit, and further follow-up discussions on public
safety. We have almost 70 villages that have zero public safety
on the ground at all, State, Federal, anything. One of the
things that he asked for was a legal tool to do compacting in
Department of Justice. We told him we can't have a public
safety system that is based on grants, and how well somebody
can apply for a grant in order to do that. We need to have a
reliable source, an efficient funding mechanism that can push
the Department of Justice out.
He asked for the legal tools to be able to compact, and
asked for an ability for his team to get those tools. So if
there is some focus that can be done on that as well as Senator
Murkowski has introduced a bill that deals with jurisdiction, a
pilot project on that, we think that would be really helpful.
We are very grateful for Savanna's Act, and the Not Invisible
Act. We think that we are making progress. But public safety is
a huge issue for us. We would even venture to say, there is a
nexus between public safety and national security, at least in
Alaska. Thank you.
Senator Hoeven. Thank you, Ms. Kitka. I think that is very
well said and much appreciated.
Thank you, Mr. Chairman.
The Chairman. Senator Smith.
STATEMENT OF HON. TINA SMITH,
U.S. SENATOR FROM MINNESOTA
Senator Smith. Thank you, Mr. Chair and Vice Chair. I am so
glad to have a chance to be with all of you today to talk about
priorities for Native American and Alaska Native and Native
Hawaiian people as we think about this next legislative year. I
am filled with optimism for what it is that we can accomplish
together. So thank you for taking the time to speak with us.
I want to first associate myself with the comments that
Senator Hoeven made about missing and murdered indigenous
people. This is an issue of great importance to us in
Minnesota. I am really proud of the state-led efforts that we
have in Minnesota, and really look forward to being able to
make headway on this at the Federal level also.
But I want to dive into a little bit the question about
health, particularly mental health. Even before COVID-19, we
knew that we had deep struggles everywhere in our Country with
the unmet need for people to have access to mental and
behavioral health care, regardless of where you live. Of
course, this is a particular challenge for everyone.
I have had many conversations with Native people in
Minnesota about it, and tribal leaders as well as urban
indigenous folks about what we need to do. There are great
examples of things that are working in Minnesota that are
really rooted in developing strategies focused on helping
people deal with historic trauma in their communities and their
own mental health, and really rooted in cultural and
traditional values.
So we know we have significant needs, we know there is a
lot we need to do. One of the big issues, of course, is
resources. I would like to hear your advice to us as we are
thinking about how to best tackle this need for improved access
to mental and behavioral health both in tribal lands as well as
in the urban indigenous communities, and what you would advise
us to think about as we tackle this.
Maybe we could start with President Sharp.
Ms. Sharp. That is excellent, thank you, Senator Smith, for
that question.
I think probably one of the singular most important things
you can do to help us to achieve the goals that you have
outlined would be to ensure that tribal nations have the
maximum flexibility. One, that we have the resources. As I said
in some of my remarks, the $20 billion government set-aside
that we are seeking should be viewed as a floor.
And to your question about mental health and the ability
for us to apply our culture, our tradition, our traditional
foods as I mentioned, having the ability to determine as we see
fit, as we build both a public health care recovery plan and an
economic recovery plan, we have very creative thoughts about
that all across Indian Country. If just those two things are
secure for us, we can achieve many of the goals and objectives
that we have outlined.
Senator Smith. Thank you.
It is exactly getting at that issue of flexibility and
funding which is the idea behind my bill to create a special
behavioral health program within the Indian Health Service that
would create that flexibility. So I thank you for that.
Would anyone else like to comment on this need, and how you
see this, what we can do, what we need to do as we think about
this?
Ms. Kitka. This is Julie Kitka. I would be glad to answer
that one.
Senator Smith. Thank you, Julie.
Ms. Kitka. We have recognized the need for behavioral
health for some time on that. We do trend analysis of causes of
death and causes of illness. We saw a shift a number of years
ago from contagious disease, and this is all before the
pandemic occurred, obviously. Before the pandemic occurred,
many of the health needs for our people were behavioral issues.
Whether it was suicide, whether it was mental health needs, it
was behavioral in nature as opposed to contagions or diseases
going through.
We have a model in Alaska, we have a health aid model in
our villages on that. But we also set up what is called a
behavioral health aid model, which was intended to get exactly
at the root causes of this. I would say building off that model
or inviting them to share their latest work that they have
done, but also realize, as President Sharp said before, a lot
of this stuff is viewed holistically from the Native community.
We need to have food security. We need to have culture
security. We need to have respect. We need to make sure that
there is equity among Native Americans in that we have help
dealing with the discrimination and some of the racial issues
that go with it.
So holistically attacking all those together, using the
strength of our culture to heal our own people. As I said, we
would be glad to supplement that with written testimony. But we
have a behavioral health aid model which is really functioning
well.
Senator Smith. Thank you. That is very helpful. I am
thinking about the many conversations I have had with Biden and
Harris appointees about the issues around the social
determinants of health, both mental health and physical health,
and how food security, housing security, addressing issues of
systemic racism and historic trauma all feed into overall
health as well as education and economic issues also.
I hope that as we think about that here in this Committee
we will be able to take that holistic approach. Thank you so
much.
The Chairman. Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman. Thank you for
holding this important hearing, and thanks to the Vice Chair. I
am so proud of two of the witnesses who are playing national
roles for our Country, President of the National Congress of
American Indians, Fawn Sharp, and the President of the
Affiliated Tribes of the Northwest, the Honorable Leonard
Forsman. It is so great to be with them. I think you can
already see why they are leading those organizations, because
of their advocacy and articulation of the challenges Indian
Country.
I wanted to follow up, if I could, it is great to see both
of you virtually. I am pretty sure broadband is on the list,
because I can hear some latency. I don't know, President Sharp,
if you are out at Quinault today, or not. But it as far as you
can get, unless you want to get into the Pacific and go out to
sea, our Chairman.
But I wanted to ask about Carcieri. We have not made a
Carcieri fix. I feel like even though we are here talking about
land and talking about the economic challenges of COVID-19, I
am pretty sure once we get out of COVID-19, we are going to
say, we need a Carcieri fix. So if you could comment on that.
The other issues is, one of the things we do need to do as
far as this next COVID-19 package, in my opinion, is fix the
inequity between the urban Indian health clinics and the fact
that they don't get full FMAP funding. An actual Indian-run
institution, Indian hospital does. But not the urban situation
where we serve both Alaska population and many Washingtonian
members of various tribes as well.
So if you could comment, anybody comment, on those two
issues.
Ms. Sharp. Thank you, Senator. I will take the first
question, with respect to Carcieri. First of all, it is good to
see you, even if it is virtually. I am here at Quinault, and
all my kids are off from school right now, so we can have
coverage. Thank you for pointing out the broadband challenges.
With respect to Carcieri, I just want to briefly say that
when that decision was hot off the press, it hadn't even been a
day or two from the time the U.S. Supreme Court issued
Carcieri, that a tribal elder in my community who had been on
our council for many years, understood just reading the text of
what that case would do to all of Indian Country. So we need to
move to ensure that we have a clear fix, so that all federally
recognized tribes can take land into trust. Until there is a
clear fix, it is going to be fertile ground for the types of
lawsuits and the delays that we have witnessed.
So we need to ensure two things. One, that every federally
recognized tribe has that opportunity, but also that those
right now that are designated as trust lands are intact and are
not compromised. That would go a long way to stabilize tribal
nations, to build their governments, to build their economies,
to deliver services.
So that is a critically important part of the Federal trust
responsibility. I so appreciate your raising that question.
Thank you.
Mr. Forsman. Senator Cantwell, as far as the support of
Indian health clinics, urban Indian health clinics, it is very
important to Affiliated Tribes as well as the Suquamish Tribe.
Any way we can support them to do outreach to large Native
communities that are in urban areas, especially Seattle, the
namesake of our chief. There is a number of American Indians
and Alaska Natives that live there and rely on those services
as a result of the relocation programs of the 1950s that the
government implemented.
Also a lack of economic opportunity potentially at their
own reservations makes people move to these other economies. We
really believe that is important for the health of those
communities, their spiritual and cultural health. It is also
important for the cities across the Nation which have Indian
populations, so they will be healthy and contributing.
Senator Cantwell. This is like a head scratcher. I don't
know if this is just a technical glitch, but if we are
basically saying, the reason why we fully support at 100
percent the funding for tribal members on this health care is
because we have a trust responsibility, I don't see a
difference in the trust responsibility we have, whether it is
delivered at a hospital in Montana or whether it is delivered
at the Seattle Indian health port. It is the same to me, it is
the same population, it is the same responsibility.
So I think somebody is shortchanging us. I hope we can
address this. Thank you.
The Chairman. Senator Lujan.
STATEMENT OF HON. BEN RAY LUJAN,
U.S. SENATOR FROM NEW MEXICO
Senator Lujan. Thank you so much, Mr. Chairman. And to our
Vice Chair Murkowski, it is an honor to be with both of you and
to be a part of this hearing.
It is good to see some leaders that I have had the honor of
getting to know throughout the years. To the Honorable
President Sharp, it is an honor to see you. To our friend and
President Forsman, good to see you, sir. And to the Honorable
Chair Carmen ``Hulu'' Lindsey, I have not had the honor to meet
you in person but I look forward to that. And also Julie Kitka,
it has been an honor to learn from you throughout the years.
I am Ben Ray Lujan, a new member of the Senate from New
Mexico, and a proud new member of the Indian Affairs Committee.
Ms. Sharp, I will jump right into some of the questions
that I have. This comes with your leadership responsibilities
at NCAI. I was visiting with one of the pueblos and tribes that
I am so honored to represent. They were sharing with me some of
the concerns and barriers that exist when it comes to
infrastructure and some of the challenges that they faced with
CARES Act funding, with not being able to secure easements and
get approvals with easements through the Bureau of Indian
Affairs, and also through the Federal government.
Is this an issue that NCAI is familiar with, with the
members that you are honored to represent?
Ms. Sharp. Yes, absolutely. And these are challenges, when
we have to engage in broad planning for delivering services or
even building our economies, having security in knowing that we
have rules that are predictable, that are timely, and
regulations that we can rely on. Those are the sorts of
questions that impede creating a climate of business certainty,
a climate of being able to effectively, to strategically plan.
When we have things like the property interests that you raise
as a significant question, it provides another layer and
another barrier in our inability to engage in commercial
relationships, our inability to effectively deliver
governmental services.
So yes, we are very keenly aware of those types of barriers
on the ground with respect to not just tribes in our region but
all across the Country, those are challenges.
Senator Lujan. Mr. Chairman, as you are aware, the Indian
Health Service has recently identified a $2.56 billion backlog
in projects that would provide tribal communities with access
to potable water and wastewater. Looking at some of these
barriers that exist with lack of coordination from Federal
agencies and approval, I know it is slowing people down.
President Forsman, one of the questions that I have for
you, sir, is the importance of access to broadband and making
sure that we are connecting communities. Can you speak to the
importance of the program now at NTIA which is the Tribal
Broadband Connectivity Program, and the importance of making
sure that we have an FCC that is functioning and also that we
have a strong NTIA program that will deploy broadband to tribal
communities?
Mr. Forsman. Thank you for that question, Senator Lujan,
and I appreciate all the work you did in the House on behalf of
Indian Country, and I look forward to your work here in the
Senate. Hello from Suquamish.
This is crucial, of course, not only for our governments to
operate, and for us to be able to participate in this virtual
platform, but also, as we all know, for schools, for tele-
health and for communication, for homebound elders, et cetera.
One thing we find is that there is a lot of variety throughout
Indian Country, as you know. There are some places that are
severely underserved, and then there are other places that may
have partially good service, and poor service in other places.
So we need to really look at existing providers that we
have, corporate providers and the public providers. There is a
lot of dispute between those two entities sometimes on our
reservations, where we want to go ahead and put appropriate
infrastructure in, and we run into these issues. There are a
lot of anecdotes that I can share with you another time
regarding some specific service issues that we have.
Senator Lujan. The last question that I have, to President
Sharp, is would an extra $3,000 to $3,600 a year to the child
tax credit be something significant through your eyes for
Native American families who are trying to support their
children and families during this pandemic?
Ms. Sharp. Yes, absolutely. And I appreciate your
recognizing the vulnerability of our individual citizens. That
would absolutely provide, I know, a relief at a time when they
need it the most. It would provide immediate relief. Because
many of our families are just this far away from falling into
further economic demise, but to some of the questions earlier
raised, their mental health. Right now, our citizens are on the
brink. Many of our citizens have been suffering for a long
time. It is exhausting.
And any relief like that would make a significant
difference to provide some immediate relief. It would go a long
way.
Senator Lujan. Thank you so much.
Mr. Chairman, thank you for the time today. And to all of
our leaders who are here before us, it is truly an honor to be
here with you. I look forward to working with you and learning
from you.
Thank you so very much. I yield back.
The Chairman. I want to thank all of the testifiers. I want
to extend a special mahalo to Chair Lindsey for her testimony.
I want to thank our Vice Chair and all of the members for
participating.
If there are no further questions for our witnesses,
members may submit follow-up questions for the record.
The hearing record is normally open for two weeks, but
pursuant to Ms. Kitka's request, without objection, we will
keep the hearing record open for four weeks. I want to thank
all of the witnesses for their time and their testimony today.
This hearing is adjourned.
[Whereupon, at 3:56 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Timothy Nuvangyaoma, Chairman, Hopi Tribe
Greetings Chairman Schatz, Vice Chair Murkowski, and Honorable
Members of the Senate Committee on Indian Affairs (``Committee''). My
name is Timothy Nuvangyaoma and I have the honor of serving as Chairman
of the Hopi Tribe (``Tribe''). I would like to thank you for the
opportunity to provide testimony regarding the Tribe's priorities for
the 117th Congress.
My testimony will focus on the urgent need to fully implement the
1996 Navajo-Hopi Land Dispute Settlement Act and the devastating impact
that the closure of the Navajo Generating Station has had on the Hopi
people. I hope to impress upon you the importance of living up to the
promise made to the Hopi Tribe in the 1996 Navajo-Hopi Land Dispute
Settlement Act and why fulfilling this promise is the simplest way to
help the Tribe mitigate the immense economic harm it is suffering in
the wake of the closure of the Navajo Generating Station.
The Hopi Reservation, located in the northeast corner of Arizona,
includes more than 1.5 million acres. The Tribe has over 14,000
enrolled tribal citizens, over half of whom reside in the Reservation's
12 villages. The residents of the Reservation suffer from a 60 percent
unemployment rate due, in part, to the lack of economic development
opportunities caused by the remote and landlocked nature of the
Reservation.
This dire situation was exacerbated by the closure of the Navajo
Generating Station (NGS) in November 2019, and the ongoing COVID-19
pandemic. However, the resources already provided by Congress to help
Indian Country address the pandemic, if combined with Congressional
assistance to implement the 1996 Settlement as well as aid to
transition from the NGS's closure, could drastically improve the lives
of the Hopi people.
Implementation of the 1996 Settlement Act
Twenty-five years have passed since the enactment of the Navajo-
Hopi Land Dispute Settlement Act of 1996 (``1996 Settlement''), yet the
Hopi Tribe has still not received the full value and benefit Office of
the Chairman P.O. Box 123, Kykotsmovi, AZ 86039 (928) 734-3000 that we
were promised in the settlement. The 1996 Settlement arose from the
illegal trespass and possession of Hopi lands by Navajo tribal
citizens. The Hopi Tribe later settled its claims against the federal
government and granted long-term leases to the Navajo trespassers to
relieve the federal government of its obligation to remove them. The
Tribe fulfilled its obligation under the 1996 Settlement decades ago,
but the federal government has not.
The 1996 Settlement obligates the federal government to accept
500,000 acres of land in trust for the Hopi Tribe, including private
land purchased by the Hopi Tribe on the open market and State trust
land that is interspersed with such private lands. In the case of the
interspersed State trust land, the State of Arizona is required to
concur in the United States' condemnation of the land before it can be
taken into federal trust status. Although the State of Arizona
supported the 1996 Settlement, that provision has frustrated the
Tribe's attempts to realize the benefit it should have received under
the Settlement Act.
Despite our best efforts, the State of Arizona has refused to
concur in the condemnation of any lands. To date, there are
approximately 144,000 acres of interspersed State trust land awaiting
condemnation because of the State's refusal to concur with the
condemnation. The State trust land makes it incredibly difficult for
the Hopi Tribe to develop its own trust lands. Nevertheless, the
federal government still has a role to play in upholding the
commitments it made in the 1996 Settlement. While the Hopi Tribe
continues its efforts to engage the State of Arizona, we have worked
with our Congressional delegation on potential legislation that would
allow us to fully benefit from the 1996 Settlement, as have the Navajo
Nation and federal government.
In 2017, Senator McCain acknowledged that ``Congress may need to
pass legislation that establishes an alternative land acquisition
process to the condemnation method prescribed under the 1996 Act.'' \1\
A federal land exchange could be the solution that brings the Arizona
State Land Commissioner to the negotiating table. If the federal
government provided the State with federal land of equal value to the
144,000 acres of State trust land subject to the 1996 Settlement, the
State may agree to allow the Hopi Tribe to finally take the settlement
land into trust.
---------------------------------------------------------------------------
\1\ Letter from Senator McCain to the Hopi Tribe re: 1996
Settlement Act (November 28, 2017).
---------------------------------------------------------------------------
As former Principal Deputy Secretary Indian Affairs Lawrence
Roberts stated in 2016, ``the full implementation of the Settlement Act
will benefit the Tribe, the United States, and the State.'' \2\
Additionally, it would allow the State, the Northern Arizona Region,
Coconino County, and the Hopi Tribe to continue to move forward as
friends and neighbors and economic partners so that we can all prosper
together. This fact is evidenced by a 2018 joint letter from the Hopi
Tribe and the Coconino County Board of Supervisors that states ``[i]t
isn't just good policy for the State and federal government to work
towards fulfilling the promises in the Settlement Act, it will also
help Northern Arizona and its economic development.'' \3\
Implementation of the 1996 Settlement is desperately needed as the
Tribe, and Northern Arizona, deals with the closure of the Navajo
Generating Station.
---------------------------------------------------------------------------
\2\ Letter from Principal Deputy Assistant Secretary-Indian Affairs
Roberts to Arizona Land Commissioner Atkins re: 1996 Settlement Act
(December 22, 2016).
\3\ Letter from the Hopi Tribe & Coconino County to Arizona
Governor Ducey & Arizona Land Commissioner Atkins re: Support of Hopi
Land Settlement & Meeting Request. (June 6, 2018).
---------------------------------------------------------------------------
Transition from Navajo Generating Station
The Tribe entered the COVID-19 pandemic on the heels of the closure
of the Navajo Generating Station (NGS), which was the largest coal-
fired power plant in the western United States. While it was partially-
owned by the federal government, in November 2019, the other owners of
the NGS--Salt River Project, Arizona Public Service Co., Tucson
Electric Power Co., and NV Energy--decided to close the plant, citing
``rapidly changing economics of the energy industry,'' including
continued low prices for natural gas.
Construction of the NGS began in 1969 to help provide a reliable
power source to the growing Arizona population. The plant was also
meant to provide a power source to pump water to the Central Arizona
Project (CAP), which delivers water from the Colorado River to southern
Arizona. The plant, which began operating in 1974, generated power for
major cities, including Phoenix, AZ; Tucson, AZ; Las Vegas, NV; and Los
Angeles, CA.
The NGS was powered by coal from the Kayenta Mine through lease
agreements with the Hopi Tribe and the Navajo Nation. The NGS was the
sole customer for coal from the Kayenta Mine because it was the only
place that the mine was linked to by rail. The federal government owned
a 24 percent stake in the NGS through the Bureau of Reclamation due to
its interest in the delivery of water through the CAP.
The revenues generated from the NGS and Kayenta Mine operations
provided approximately 80 percent of the Tribe's general fund budget.
These funds were vital to the Tribe's ability to supplement
insufficient federal funds to be able to provide essential government
services to our citizens. While the NGS closure is causing great
hardship on the Tribe's economy, the Hopi Tribe looks forward to
working with this Committee on transitioning to a renewable energy
economy. We urge this Committee not to leave Indian Country behind as
the nation marches forward.
In closing, I would like to thank the Committee once again for the
opportunity to share our priorities for the 117th Congress. We look
forward to providing updates and working with the Committee on these
matters.
______
Prepared Statement of Carol Wild Scott, Esq., Legislative Chair,
Veterans and Military Law Section, Federal Bar Association
Dear Sir and Madam,
The Veterans and Military Law Section of the Federal Bar
Association hereby submits a Statement for the Record addressing the
need for inclusion of the issue of the need for full accreditation of
Tribal Veterans Service Officers (TVSOs) in the list of priorities for
the Committee for the 117th Congress. The views herein expressed
reflect those of the Veterans & Military Law Section of the Federal Bar
Association and not necessarily those of the entire Federal Bar
Association.
American Indians, Alaska Natives, Native Hawaiian and Pacific
Islanders--Indigenous peoples--serve this country in the armed forces
to a far greater degree than any other ethnic group. They have done so
since the earliest days of our democracy. Regardless of the extent of
their service, they have historically, continuing to the present,
received far, far less in benefits than any other ethnic group.
There are several reasons for this. Many tribal communities are
located in highly rural areas, far from any urban center. Cultural
isolation is also a contributing factor; indigenous people have a high
degree of distrust of the federal government in any shape or form. Of
over 440 treaties between indigenous people and the federal government,
every one has been violated; land and resources taken, whole cultures
relocated, and languages and culture suppressed. national Veterans
Service Organizations (VSOs), which depend on membership dues and
donations for their existence do not reach out to Native veterans, who
are largely unable to pay dues. A significant number of Native veterans
return to communities with unemployment as high as 90 percent.
Additionally, despite the formation of the Department of Veterans
Affairs (VA) Office of Tribal Government Relations (OTGR) under the
Obama administration, there has been little or no movement to encourage
or allow full accreditation of TVSO advocates. Tribal Veterans
Representatives (TVRs) were trained in regulations, how to gather
information for claims, etc., but were not taught anything about
advocacy (because of the potential for conflicts of interest); only to
transmit information to someone at the regional office who held the
power of attorney and filed the claim. . Several years ago, the TVR
training program was introduced in VA. If the claim was denied, it was
rarely if ever appealed. The veteran was told that the decision on the
claim was what the government chose to grant. There is also a high
level of racism in regional offices in whose jurisdiction are located
reservations and tribal communities. As one reservation veteran told
me, the address made your ethnicity pretty clear.
The list of reasons why there should be accreditation begins with
cultural competence and trust in a TVSO, who is almost always a veteran
and an integral part of the tribal community. TVSOs, as part of the
community understand the needs of the veterans, are acquainted with the
veterans' extended families, and are able to incorporate into claims
the accurate specifics of each individual veteran's situation,
including trying to ensure cultural competence in mental health
assessment and treatment. To a far greater extent than with national
VSOs, TVSOs are the gateway to health care, housing loans, educational
programs, adaptive housing and special needs--virtually every program
available to all veterans everywhere.
Full accreditation was discussed in meetings of the National
Congress of American Indians (NCAI) Veterans Committee meetings as far
back as 2011. Tribal governments began asking for it at about the same
time. By 2013, several tribal entities had communicated to VA the need
for full accreditation of TVSOs. Senators Tester and Udall wrote the
Secretary arguing that accreditation was essential for cultural and
accessibility reasons. It was ignored.
Finally, in 2016, after a wholly inadequate tribal consultation, a
proposed rule was promulgated by VA Office of General Counsel (OGC) to
amend 38 C.F.R. Chapt. 14.626-629 to provide for the recognition of
``Tribal Veterans Organizations. `` It was abundantly clear that OGC
had not consulted with any expert on Indian Sovereignty Law, nor with
Bureau of Indian Affairs (BIA), nor with Department of Justice (DOJ) or
with VA's OTGR. It was apparent that OGC had no intention other than to
require that Tribal communities form themselves into mini-DAVs by
forming ``Tribal Veterans' Organizations.'' This is a term invented by
VA OGC and without meaning otherwise. The rule also provided that
accreditation could be sought through a state, although not all states
have offices of veterans' affairs that prosecute claims before the VA.
The process of issuing a proposed rule for comment prior to the
publication of the final rule is to permit input of information and
discussion by individuals or entities such as the Veterans & Military
Law Section of the Federal Bar Association. There were a number of
comments submitted in response to the proposed rule, including one from
the Veterans & Military Law Section of the Federal Bar Association. In
the commentary for the Final Rule, published in January, 2016, not a
single comment or content thereof was found meritorious by OGC. The
Final Rule mirrored the Proposed Rule. As far as is known, to date
three Tribal Communities have applied for accreditation. None have been
approved. The provisions in the Final Rule make it literally impossible
for accreditation of individual TVSOs from individual tribal
communities to occur. The Confederated Tribes of the Umatilla
Reservation (CTUIR) in Oregon have tried three times to no avail. It is
clear that the only solution is a legislative fix.
The economic impact of veterans' benefits cannot be understated. A
veteran with 100 percent disability, over the course of his/her
lifetime, with a full suite of benefits, access to programs and health
care brings into the tribal community in excess of $1 million. In one
tribe in Oklahoma the TVSO, who after a lengthy effort was accredited
through the state, brought into his community in excess of $16M over
the course of fourteen years. There are VA programs in education,
vocational rehabilitation, housing loans and housing/adaptive housing,
health care (including the Caretaker Program which provides a stipend
to a family caretaker), life insurance and others, about which many
Indigenous veterans remain uninformed. There are considerable funds
involved with all of these which, without fully accredited TVSOs to
educate the veterans and provide full representation, are being left on
the table.
The Veterans & Military Law Section, through its Legislative
Committee (now the Veterans Affairs Committee) began this quest years
ago. It has taken a long time for the issue to reach fruition and to be
recognized by the leadership of SVAC and HVAC. That the ABA has offered
significant support through Resolution #110 is highly encouraging. We
hope that the Senate Committee on Indian Affairs will add this issue to
the list of essential issues for the 117TH Congress.
______
Prepared Statement of the Seattle Indian Health Board
Dear Chairperson Schatz and Vice Chairperson Murkowski:
Seattle Indian Health Board (SIHB) would like to thank you and the
Senate Committee on Indian Affairs for holding this Oversight Hearing.
We appreciate the opportunity to provide written comments on our 117th
Congressional priorities. These comments and recommendations are based
on our experiences as an Urban Indian Health Program (UIHP) and
national Tribal Epidemiology Center (TEC) serving urban Indian
communities nationwide.
Healthcare Informed by Indigenous Knowledge
SIHB ensures the health and well-being of urban American Indian and
Alaska Native communities by providing culturally attuned health and
human services, conducting data research through our research division
the Urban Indian Health Institute (UIHI), and collaborating with
tribal, community, and federal partners on policy and advocacy issues
that impact urban Indian communities.
We are one of 41 UIHPs that assist the federal government in
fulfilling your trust responsibility to provide healthcare for the
American Indian and Alaska Native citizens living in urban areas. UIHPs
are a critical component of the Indian healthcare system and offer
culturally attuned health services to the 2.2 million American Indians
and Alaska Natives who live in 115 counties across 24 states. Alongside
our tribal health partners and Indian Health Service (IHS) Direct
facilities, we are tasked with offering healthcare services to the 5.2
million American Indian and Alaska Native people nationwide.
We are also home to an IHS designated Tribal Epidemiology Center
(TEC) and public health authority--the Urban Indian Health Institute
(UIHI). UIHI conducts data, research, and evaluation services for over
62 urban Indian organizations nationwide. These health, social, and
cultural service agencies provide culturally attuned health services to
urban Indian communities. Of the twelve TECs nationwide, UIHI is the
only one with a national purview; the other eleven operate regionally,
serving tribal nations.
As an Indigenous organization, we are guided by our traditional
beliefs and practices, giving us a unique organizational approach based
in Indigenous knowledge that we define as Indigenous Knowledge Informed
Systems of Care. This allows us to approach all aspects of our
organization through a holistic system of care. By creating a
healthcare system that is centered on the patient and driven by
Traditional Indian Medicine, we build on our resilience and healthier
communities. Our Indigenous Knowledge Informed Systems of Care approach
guides our policy advocacy, data research, workforce development, and
health and human services to create an environment anchored in
tradition, that empowers our community to walk in a culture of
wellness.
In response to the Oversight Hearing, we submit the following 117th
Congressional priorities to the committee. These requests will begin to
address the chronic underfunding of trust and treaty obligations to
American Indian and Alaska Native people living in urban areas.
1. Authorize Advance Appropriations for Indian Health Service (IHS)
We request Congress authorize advance appropriations for the IHS to
honor the trust and treaty obligations to American Indian and Alaska
Native citizens and address the negative impacts of government
shutdowns on healthcare delivery. It is well documented that the IHS
does not receive funding parity with other discretionary or mandatory
federal health care programs such as the Veterans Health
Administration, Medicaid, and Medicare. As a result, government
shutdowns are threatening the health and wellness of the American
Indian and Alaska Native communities across the Indian healthcare
system.
2. Appropriate $200.5 million for Urban Indian Health Programs
To address the chronic underfunding of the federal trust
responsibility, SIHB supports Northwest Portland Area Indian Health
Board's (NPAIHB) Budget Formulation FY22 Appropriations request of
$200.5 million for Urban Indian Health Programs. This funding
methodology uses a ten-year full funding formula that accounts for and
is responsive to the health needs of our entire American Indian and
Alaska Native community. This request begins to address the recent
expansion of the Urban Indian Health Program to 41 locations, overdue
investments in infrastructure, and healthcare inflation. Nearly 2.2
million urban American Indians and Alaska Natives, living in 115
counties, would benefit from this Appropriations request.
3. Appropriate $24 million to the 12 IHS Tribal Epidemiology Centers
We request a baseline appropriation of $24 million to the 12 IHS
Tribal Epidemiology Centers. Tribal Epidemiology Centers provide
epidemiology and public health functions critical to the delivery of
healthcare services for the Indian healthcare system and are authorized
public health authorities for urban Indian communities and tribal
communities within their service areas. Tribal Epidemiology Centers
remain woefully underfunded despite marked success and un-replicated
services, receiving an average award of $422,000 a year from IHS.
Increasing funding to $24 million would allow Tribal Epidemiology
Centers to conduct the culturally attuned research needed to identify
the root causes of health disparities and to perform their core
functions as defined in 25 USC 1621m. The COVID-19 pandemic
has revealed that despite being chronically underfunded, Tribal
Epidemiology Centers play a critical role in publishing public health
reports, developing public health toolkits for UIHPs, and developing
culturally relevant vaccine hesitancy campaigns for Native communities.
In addition, they are uniquely positioned to address data challenges
surrounding COVID-19 and the Missing and Murdered Indigenous Women and
Girls crisis by developing best practices for collecting race,
ethnicity, and tribal affiliation and developing guidelines around
Indigenous Data Sovereignty practices. There are twelve Tribal
Epidemiology Centers nationwide with a service population of 5.5
million American Indians and Alaska Natives.
4. Create an Urban Confer policy across the United States Health and
Human
Services Department (HHS)
To ensure trust and treaty obligations are upheld to all American
Indian and Alaska Native citizens, we request the development of an
Urban Confer policy across all agencies and departments within HHS
jurisdiction. The federal government has an obligation to consult with
Tribal Nations on issues that impact tribal communities. In the Indian
healthcare system, UIHPs have an Urban Confer mechanism with the IHS
that provides an opportunity for an exchange of information and
opinions that lead to mutual understanding and emphasize trust,
respect, and shared responsibility between UIHPs and government
agencies. Urban Confer policies do not substitute for nor invoke the
rights of a Tribe as a sovereign nation. UIHP inclusion is to advocate
for the urban Indian community as an Indian Health Care Provider and
part of the Indian healthcare system.
The importance of an Urban Confer was made evident in the COVID-19
supplemental resources from Congress. Without an Urban Confer policy,
HHS agencies outside of IHS had no formal mechanism for gathering
feedback from urban Indian organizations and vice versa. As a result,
submitting feedback to Health Resource Service Administration (HRSA),
Substance Abuse and Mental Health Services Administration (SAMHSA), and
the Centers for Disease Control and Prevention (CDC) was a significant
barrier to accessing COVID-19 supplemental resources for urban Indian
organizations. The CDC created a funding opportunity for 11 of the 12
Tribal Epidemiology Centers by selecting a grant mechanism that failed
to include urban Indian organizations as eligible entities. Errors like
these leave urban Indian organizations without access to federal
resources, despite Congressional intent.
5. Extend 100 percent Federal Medical Assistance Percentage (FMAP) to
Urban
Indian Organizations (UIOs)
Amending 1905(b) of the Social Security Act to include UIOs would
help fulfill the federal trust and treaty obligations to pay for health
services for all American Indians and Alaska Natives regardless of
where they reside. UIOs receive less than 1 percent of the IHS budget.
Yet over 71 percent of American Indian and Alaska Native people live in
urban areas. Seattle Indian Health Board, and many serve a growing
number of urban American Indian and Alaska Native people. UIOs are the
only part of the Indian healthcare system that are not 100 percent FMAP
payment eligible despite being Indian Health Providers stipulated in
Title V in the Indian Health Care Improvement Act (IHCIA), now
Subchapter IV of the IHCIA as amended by the Affordable Care Act (ACA)
in 2010.
6. Improve Data Access for Tribal Epidemiology Centers
SIHB and UIHI are committed to understanding the impacts of COVID-
19 in urban American Indian and Alaska Native communities. As a TEC and
public health authority, UIHI supports the epidemiological needs of
urban Indian communities in 54 urban areas nationwide. Despite
congressional authorization to access HHS data as a public health
authority, UIHI was recently denied access to the National Notifiable
Disease Surveillance System (NNDSS) by CDC. A failure to grant data
access perpetuates systemic health inequities in American Indian and
Alaska Native communities. Timely analysis of NNDSS data is critical to
supporting tribal and urban Indian organizations as they prevent,
prepare, and respond to a second surge of COVID-19. TECs are best
positioned to advise and lead the appropriate collection and analysis
of American Indian and Alaska Native data. To fully operate as public
health authorities alongside local, state, and federal entities, the
roles and authorities of TECs must be upheld. We ask for continued
oversight of federal agencies to ensure compliance and timely access to
HHS public health data and improvements to the collection, analysis,
and reporting of American Indian and Alaska Native data.
7. Permanently Reauthorize the Special Diabetes Program for Indians
(SDPI)
Type 2 diabetes is more prevalent in American Indian and Alaska
Native people than in any other race and is two times higher than that
of non-Hispanic White people. Since 1996, the SDPI has proven to be an
inexpensive and highly cost-saving measure of diabetes care and
prevention. The SDPI program has saved millions of Medicaid dollars
through prevention and management of diabetes and associated health
problems such as hypertension, cardiovascular disease, retinopathy,
neuropathy, and end-stage renal disease. SIHB requests that the SDPI
program to be permanently reauthorized and fully funded to ensure that
all American Indian and Alaska Native people have access to culturally
attuned chronic disease prevention and management services.
8. Extending Indian Preference for Housing Assistance
The federal government has a federal trust responsibility to
provide affordable housing in partnership with Indian tribes to improve
the housing conditions and socioeconomic status of American Indian and
Alaska Native citizens. Yet American Indian and Alaska Natives are
three to eight times more likely to experience homelessness than other
racial and ethnic groups. To address the housing needs of urban
American Indian and Alaska Native people, SIHB requests that Tribal
Housing Entities be allowed to extend Indian Preference Policy to
affordable housing developments administrated by urban Indian
organizations through Memorandums of Understanding (MOU), without
having to allocate Indian Housing Block Grant program funding to a
housing project.
9. Direct Services and Programming Carve Outs for Gender-Based Violence
Programs
American Indian and Alaska Native people disproportionately
experience violence. For example, more than 4 in 5 American Indian and
Alaska Native women (84.3 percent) have experienced violence in their
lifetime. These numbers likely underestimate the true extent of
violence due to systematic racism, underreporting, misclassification,
and ongoing distrust of law enforcement. Despite this ongoing crisis of
violence, very little is known about the victimization of American
Indian and Alaska Native women living in urban settings outside of the
recent research by the UIHI, an IHS funded TEC.
Through the I/T/U system of care, tribal and urban Indian
organizations play a critical role in preventing and ending violence
against American Indian and Alaska Native people in partnership with
government and community partners. SIHB requests that all federally
funded gender-based violence programs include a five percent grant
carve out of state and local funds to urban Indian organizations that
use indigenous approaches to ending gender-based violence through
culturally attuned approaches to survivor and family support services,
sexual assault prevention, and treatment services.
10. Expanded Community Health Aide Program (CHAP) Eligibility to Urban
Indian Organizations
In accordance with 25 U.S.C.1602 to ensure the highest possible
health status for Indians and urban Indians and to provide all
resources necessary to effect that policy, we ask that section 111 of
the Indian Health Care Improvement Act (IHCIA) by amended to include
urban Indian organizations as eligible providers for the Community
Health Aide Program (CHAP). The recent federal investment in CHAP
expansion outside of Alaska is an important milestone in supporting
culturally attuned and community-defined health interventions for
tribal and urban Indian communities. SIHB participates in the regional
CHAP advisory group lead by the Northwest Portland Area Indian Health
Board (NPAIHB) to develop a regional CHAP board, yet we are not
eligible CHAP providers. We have long partnered with our local tribes
on the development and expansion of Dental Health Aide Therapists
(DHATs), Behavioral Health Aides (BHAs), and Community Health Aides
(CHAs) because we are a critical component of the Indian healthcare
system and we know UIHPs are well positioned to support CHAP through
workforce development, culturally attuned care, and policy development.
11. Conduct an Urban Indian Health Program (UIHP) Expansion Assessment
and Capacity Building Activities
A 2009 Report to Congress, entitled New Needs Assessment of Urban
Indian Health Programs and Communities It Serves, found unmet health
care needs in 17 urban areas with high densities of American Indian and
Alaska Native people. The UIHI, has also expanded their service
population to over fifteen additional urban areas that have high
densities of American Indian and Alaska Native people and urban Indian
organizations. Several of these locations have strong community
support, local leadership, or on-going activities to develop a health
program serving urban American Indian and Alaska Native people.
Addition assessment and capacity building activities would advance IHS
priorities and outline a clear funding strategy to expand the Urban
Indian Health Program.
You can find a full list of our 2021 Federal Legislative Priorities
on our website. We thank you for your consideration of these comments
and recommendations and applaud the committee for your work to support
the Indian healthcare system. We look forward to working together in
the 117th Congress to support the health and well-being of American
Indian and Alaska Native people, regardless of where they reside.
______
Prepared Statement of Kim Reitmeier, Executive Director, ANCSA Regional
Association
The ANCSA Regional Association expresses our sincere appreciation
to Chairman Schatz and the Senate Committee on Indian Affairs for
allowing us this opportunity to submit written testimony for the record
for the oversight hearing titled ``A call to action: Native
communities' priorities in focus for the 117th Congress.'' The ANCSA
Regional Association would also like to congratulate Chairman Schatz
and Vice-Chairwoman Murkowski for their selection as leadership of the
Committee.
About the ANCSA Regional Association
The ANCSA Regional Association (ARA) was founded in 1998 to
represent Alaska Native regional corporations created pursuant to the
Alaska Native Claims Settlement Act of 1971 (ANCSA). ARA's membership
is comprised of the twelve-land based Alaska Native regional
corporations; our members represent over 135,000 Alaska Native
shareholders. Our board is composed of the presidents and chief
executive officers of our member corporations. ARA's purpose is to
promote and foster the continued growth and economic strength of the
Alaska Native regional corporations on behalf of their Alaska Native
shareholders.
Background on COVID's Impacts in Alaska
The state of Alaska and Alaska Native people have been hit hard by
the pandemic. Over 200 of our rural villages lack road access, creating
a variety of healthcare and logistical challenges. Some of these same
villages also lack access to running water and reliable Internet
services--two huge hurdles when combatting COVID-19. In addition to
these challenges, our state economy has been badly battered by the
pandemic. Data collected by the New York Times showed that Alaska's tax
revenue dropped by 42 percent in 2020 -more than 25 percentage points
greater than the decline experienced by any other state. Our
unemployment claims went from an average of 930 per week to 8,000, and
approximately 27,000 jobs were lost as the cruise and visitor
industries were decimated. Alaska's commercial fishing industry was hit
by port closures, shipping restrictions and reduced demand, leading to
$500 million in losses. When one considers that the total population of
our state is only 730,000, these numbers are startling.
In this time of need, Alaskans are stepping up to provide critical
support to elders and other vulnerable populations. Alaska Native
corporations (ANCs) are doing our part by partnering with tribes and
non-profits in our regions and investing millions of dollars to keep
our people safe and help our rural economies recover.
Attacks on Alaska Native corporations and our unique system are
only making matters worse. Misunderstandings around ANCs and the vital
services we provide have led to costly litigation that has kept tribal
funds from Alaska Native people who are in dire need of relief. If
Alaska Native people are deemed ineligible to receive these funds that
they rightfully deserve as Indigenous people, the outlook for our
communities is bleak. The state of Alaska has already told the Supreme
Court that it will be unable to make up for the lack of federal
government funding if the Court rules against ANCs.
About the Alaska Native Claims Settlement Act of 1971
The Alaska Native Claims Settlement Act of 1971 (ANCSA) was a
tailored solution proposed by Congress to meet the unique economic and
geographic differences that directly affect Native communities in
Alaska. When Congress enacted ANCSA, it afforded Alaska Natives and its
consortia a unique legal designation and identity; oversight of
indigenous peoples' lands would be designated through regional and
village ``corporations''. Both are led, owned, and provide essential
support for Alaska Natives. Congress reserved all abilities to amend
ANCSA to itself; in the scenario of state-level conflict with any
provision of ANCSA and Federal law, ANCSA is given control. \1\
---------------------------------------------------------------------------
\1\ Report from the House of Representatives, Mr. Udall, Chair, to
accompany H.R. 4162, ``Amending the Alaska Native Claims Settlement Act
to Provide Alaska Natives with Certain Options for the Continued
Ownership of Lands and Corporate Shares Received Pursuant to the Act
and for Other Purposes,'' 99th Congress, 2nd Session, Report 99-712,
1986.
---------------------------------------------------------------------------
The unique governance structure of Alaska Native people under ANCSA
is often mischaracterized. ANCSA divided the state into twelve regions,
whose boundaries were drawn by common heritages, shared interests, and
geography. The regional boundaries established which regional
corporation would serve the Native people in those communities and
villages, however ownership of the land remains with the Alaska Native
people. In creating regional and village corporations, the Federal
government, set up a mechanism to continue serving out the public's
interest of providing for, and ensuring the prosperity of Alaska and
its Native people. Alaska Native people that are represented by
regional and village corporations largely do not identify as
``shareholders'' or recognize our consortia to be a ``corporation.''
The U.S. Government Accountability Office (GAO) outlined in-detail how
Alaska Native corporations carry out many essential services to
vulnerable Native communities.
In 2012, GAO completed a comprehensive 40-year review of Alaska
Native corporations; the report analyzes the ways in which benefits are
provided by the consortia to its respective Alaska Native shareholders.
The report outlines the specific ways in which shareholders receive
benefits, which include direct employment opportunities, dividends,
academic scholarships, cultural preservation programs, land management,
economic development, and public advocacy for the Alaska Native people.
\2\ Nonmonetary benefits are an essential part of the role Alaska
Native corporations occupy in delivering services its Native people. As
the GAO's report illustrates, Native and Village corporations provide
crucial infrastructure like wind turbines, firewood distribution,
flight training, and protection for historical sites.
---------------------------------------------------------------------------
\2\ Report from the United States Government Accountability Office,
``Regional Alaska Native Corporations--Status 40 Years after
Establishment, and Future Considerations,'' 112th Congress, GAO-13-121,
2013. Retrieved from: https://www.gao.gov/assets/gao-13-121.pdf
---------------------------------------------------------------------------
It is without a question that Congress, in creating Alaska Native
corporations under ANCSA, intended to create a new system of self-
governance for Tribal communities and economies in Alaska. The passage
of ANCSA represented a new era of Alaska Native representation in the
state and national economies, all while bringing greater prosperity to
the Alaska Native people. By instilling a corporate-based structure
into the Alaska Native way of life, Alaska Native people can continue
to serve to the best interests of their Native lands and participate in
the global economy.
Federal Legislative Priorities
As we hit the one-year mark since the COVID-19 pandemic began,
Alaska Native regional corporations are delivering on their commitment
to support Alaska Native people. At the onset of the pandemic, Alaska
Native corporations focused on providing essential health care services
and support for the Alaska Tribal Health System, which services
Alaska's most rural communities only accessible by plane or boat. And
now, as Congress enters a new legislative session, ARA and its members
would like to express our commitment to working with Congress and the
Biden Administration on legislative solutions that meet the needs of
all Native people in the United States.
In working with the federal government, ARA and its members will
continue to at every opportunity to assist the state and federal
government in identifying, prioritizing, and distributing care and
funding to Alaska Native people and our shareholders. The term `Indian
Tribe', as defined in section 4(e) of the Indian Self-Determination and
Education Assistance Act (ISDEAA), explicitly calls for the inclusion
of Alaska Native village and regional village corporations as
designated under ANCSA. By every means possible, we will continue to
iterate that, unambiguously, Congress had every intention for relief
moneys to be made accessible to Alaska Native regional corporations and
village corporations.
Our priorities expand past the crucial relief moneys that Alaska
Native people desperately need. As Congress considers many strategies
to rebuild all Native communities across the country, ARA supports the
creation of an independent consultation process to address and meet the
unique needs of Alaska Native corporations. Unlike like the Lower 48
reservation system, a majority of Alaska Native people rely on
transportation infrastructure to receive crucial services as 80 percent
of Alaska's Native people inaccessible by land. Furthermore, ARA will
continue to support Native corporation participation in government
contracting, specifically with regards to the Small Business
Administration's 8(a) Business Development program, which allows for
both monetary and non-monetary returns to benefit tens of thousands of
Alaska Native people.
ANC Education and Informing Policy
Alaska Native corporations were founded by Congress five decades
ago, but there are still many misconceptions about Alaska Native people
and our unique governance structure. These misconceptions impact
present ongoing relief policy discussions and in media coverage of our
organizations. A continued misunderstanding of Alaska Native
corporations could cause Alaska Native people to suffer greatly.
ARA will continue to engage with elected officials, government
agencies, the media, and the public at-large to educate them on the
relevant history and mission of Alaska Native corporations. ARA is
committed to conducting this outreach for as long as it takes to ensure
Alaska Native people, and its ecosystem, are better understood.
Alaska's distinct path towards self-determination, as President
Kitka testified, should not be excluded simply because it is different:
``We have a different model of self-determination in Alaska
which is based on our lands claim settlement, which was a
historic, largest land claims settlement in the history of the
United States almost 50 years ago. In that land claims
settlement, Congress directed us to form for-profit native
corporations and have our land and resources in that. So, we do
have a different model of tribal self-determination in Alaska
that includes both federally recognized tribes and our Alaska
Native corporations, and our tribal consortiums and we would
like for you to take into account that the way that we deploy
our organizations we view them all as tools for the Native
people, for the empowerment of the Native people, for the
wellbeing of the Native people. We urge you not to exclude
different segments of our Native community because we are
structured differently.''
Closing
The federal government and the statues under ANCSA created a
tailored solution to Alaska Natives to ensure that geographic barriers
did not pose a threat to the continued prosperity of Alaska Native
people.
Alaska Native regional corporations and village corporations
continue to serve at the forefront of defense against the COVID-19
pandemic. And as Congress considers its approach towards addressing
relief efforts, ARA and its members urge federal legislators to
consider the dynamic structure it afforded to Alaska's Native people by
means of Alaska Native corporations.
On behalf of the twelve Alaska Native regional corporations, we
look forward to working with this and other committees in the 117th
Congress. We hope to engage in open dialogue with the Committee on
Alaska's Native communities and our shareholders to ensure
understanding of the impacts of the COVID-19 pandemic on our
communities.
Thank you again for the opportunity to submit testimony to share
the story of Alaska Native regional corporations and considering our
open invitation to discuss the interests of Alaska Native people in the
legislative priorities during the first session of the 117th Congress.
______
Prepared Statement of Hon. Warren C. Swartz, Jr., President, Keweenaw
Bay Indian Community
Chairman Schatz, Vice Chair Murkowski, and Honorable Members of the
Senate Committee on Indian Affairs, my name is Chris Swartz and I am
the President of the Keweenaw Bay Indian Community. Thank you for the
opportunity to provide testimony regarding the Community's priorities
for the 117th Congress. My testimony will focus on the need for the
United States to fulfill its trust obligation by correcting the
injustices stemming from the breach of our treaties and the taking of
our property rights.
The Keweenaw Bay Indian Community (``Community'') is located on the
L'Anse Indian Reservation, which is near the town of Baraga, Michigan
on the east side of Lake Superior's Keweenaw Peninsula. The L'Anse
Reservation is the oldest and largest reservation within the state of
Michigan. Our ancestors dwelt, hunted, fished, and gathered for
hundreds of years in the forests, lakes, and wetlands near the Keweenaw
Bay in the Upper Peninsula of Michigan.
The expansion of the western frontier and the federal government's
growing interest in the mineral resources of the south shore of Lake
Superior led the United States to enter into the 1842 Treaty of
LaPointe (``1842 Treaty'') and the 1854 Treaty of LaPointe (``1854
Treaty''). The 1842 Treaty addressed mineral rights and provided for
the cession of lands west and south of Lake Superior, including those
in the Keweenaw Bay area. However, the terms of the 1842 Treaty were
specific and unequivocal regarding our ancestors' rights to continue to
occupy, hunt, and fish in their homelands located within the cession
area, including the Keweenaw Bay area.
The 1854 Treaty provided that the signatory bands would transfer
extensive and valuable land claims in Michigan and Wisconsin in
exchange for permanent reservations in their ancestral homelands. In
addition, it described the L'Anse Reservation by its exterior
boundaries and both the Community and the United States understood that
all land within these boundaries was reserved for the sole use of the
Indians.
Unfortunately, this promise wasn't kept and in the latter half of
the 19th Century and early in the 20th Century, various lands within
the boundaries of the L'Anse Reservation were wrongfully transferred to
the State of Michigan. First, the Community was dispossessed of about
1,333 acres of land that was reserved for the L'Anse Reservation and
set aside in the 1854 Treaty. Lands were selected from the public
domain throughout the State of Michigan for a 750,000-acre land grant
to serve as payment for the construction of a canal at Sault Ste.
Marie. Through either carelessness or expediency, the Secretary of the
Interior approved the Canal Company's land selection on January 24,
1855, fourteen days after the 1854 Treaty set aside the same lands for
the L'Anse Reservation. The L'Anse Reservation lands were withdrawn
from sale by the order of the President on March 7, 1855, but the title
to the ``canal lands'' selected by Michigan, including those within the
L'Anse Reservation, was transferred to the Canal Company in accordance
with the orders of the Michigan Attorney General.
Sadly, these were not the only lands within the L'Anse Reservation
that were transferred to the state. Shortly after the signing of the
1854 Treaty, the State of Michigan began demanding that the federal
government issue it patents to wetlands within the L'Anse Reservation
on grounds that an 1850 Federal swamplands statute granted such lands
to the states. For many years, the federal government flatly rejected
Michigan's contentions and the United States General Land Office (GLO)
refused to issue patents to Michigan.
The United States Department of the Interior informed Michigan that
its submission of swampland list did not obligate the United States to
issue patents for such lands where the land was occupied and
appropriated for the Indians. The United States Supreme Court ratified
the legal rationale of this position in a 1906 decision, Wisconsin v.
Hitchcock, holding that the signatory bands to the 1854 Treaty had
never abandoned their physical presence or right of occupancy to the
lands confirmed as their ``permanent reservations'' under the 1854
Treaty and this trumped any statute granting any portion of reservation
lands to the states.
For unknown reasons, the GLO nonetheless issued Michigan patents to
about 2,207 acres of swamplands in the L'Anse Reservation. These
patents not only violated federal law, they subverted the established
policies of the Department of the Interior and the Indian Affairs
Office with respect to the creation of the L'Anse reservation created
by the 1854 Treaty. These swampland patents to Michigan were never
cancelled or terminated, and the Community has never been compensated
for the loss of the lands.
In closing, I would like to thank the Committee once again for the
opportunity to discuss these longstanding land claims. While our dire
financial situation has made it difficult to pursue these claims, we
know that recovering damages for these lost lands, and the economic
opportunities they would have generated over the years, would greatly
improve the lives of our tribal citizens. Finally, the Keweenaw Bay
Indian Community encourages the Senate Committee on Indian Affairs to
conduct oversight on all outstanding tribal land claims.
______
Prepared Statement of United South and Eastern Tribes Sovereignty
Protection Fund
The United South and Eastern Tribes Sovereignty Protection Fund
(USET SPF) is pleased to provide the Senate Committee on Indian Affairs
(SCIA) with the following testimony for the record of the February 24th
oversight hearing, ``A call to action: Native communities' priorities
in focus for the 117th Congress.'' We appreciate SCIA's focus on
hearing directly from Tribal Nations as the Committee considers its
agenda for the Congressional term. USET SPF continues to seek
foundational and systemic change to our relationship with the United
States; change that will lead to a more appropriate, respectful,
honorable, and modern diplomatic relationship for the 21st century.
From our perspective and given the inflection point in which the United
States finds itself, the SCIA has a unique opportunity during this
Congress to enact bold, transformative policy that will have lasting
impacts on the trust obligation and relationship. With this in mind, we
offer the below early items of interest and opportunities for
collaboration. This is by no means an exhaustive list of priorities for
our member Tribal Nations, who, as governments, have broad and diverse
interests across a host of issue areas, including housing,
transportation, emergency services, social services, and veteran's
affairs, among others. However, we view the below as the foundation for
our initial engagement.
USET Sovereignty Protection Fund (USET SPF) is a non-profit, inter-
tribal organization advocating on behalf of thirty-three (33) federally
recognized Tribal Nations from the Northeastern Woodlands to the
Everglades and across the Gulf of Mexico. \1\ USET SPF is dedicated to
promoting, protecting, and advancing the inherent sovereign rights and
authorities of Tribal Nations and in assisting its membership in
dealing effectively with public policy issues.
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\1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian
Nation (SC), Cayuga Nation (NY), Chickahominy Indian Tribe (VA),
Chickahominy Indian Tribe-Eastern Division (VA), 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), Monacan Indian Nation (VA), Nansemond Indian Nation
(VA), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY),
Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township
(ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian
Nation (ME), Poarch Band of Creek Indians (AL), Rappahannock Tribe
(VA), 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), Upper Mattaponi Indian Tribe (VA) and
the Wampanoag Tribe of Gay Head (Aquinnah) (MA).
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COVID-19 Relief and Recovery
While hope is on the horizon, we expect Congress and SCIA, along
with the Biden Administration, to continue to focus on COVID-19 relief
and recovery--both for Indian Country and the whole of the United
States. We continue to underscore that the United States' shameful and
unjust neglect of its duties, which Indian Country has been facing for
generations, has been brought into sharper relief as a result of the
global pandemic. COVID-19 is exposing the ever-widening gap between the
trust obligation owed to Tribal Nations and the execution of that
obligation. USET SPF demands accountability for the persistent, chronic
failure to uphold legal and moral promises to Tribal Nations. Though
these failures have persisted throughout changes in Administration and
Congress, it is time that both the legislative and executive branches
confront and correct them.
We celebrate and extend our gratitude for the historic level of
relief directed Tribal Nations in the American Rescue Plan. In
particular, the $20 billion in the Fiscal Recovery Fund has the
potential to have lasting impacts on Tribal Nation infrastructure. This
is critical, as the disproportionately high rates of COVID-19 in Indian
Country are caused and exacerbated by the chronic underfunding of the
federal trust obligation, including for healthcare, education, housing,
and critical infrastructure, leaving Tribal Nations unable to
appropriately respond to and mitigate this pandemic.
As SCIA considers further relief and recovery measures, it should
continue to prioritize Indian Country, in accordance with trust and
treaty obligations. In the short-term, federal COVID relief, response,
and recovery measures must be focused on rapid, equitable deployment to
Tribal Nations in a manner that reflects our unique circumstances and
the federal trust obligation. The federal government must support and
uphold our sovereign right to determine how best to use relief funding
and resources to the benefit of our citizens and communities. And it
must ensure that funding is delivered via the most expedient mechanisms
while providing sufficient opportunity for Tribal Nations to expend
these resources.
In the long-term, the United States must confront and correct its
ongoing and shameful failures to honor its sacred promises to Tribal
Nations, many of which have been outlined in detail by the U.S.
Commission on Civil Rights in its 2018 Broken Promises report. As the
Commission states in Broken Promises, ``the United States expects all
nations to live up to their treaty obligations; it should live up to
its own.'' The time is long overdue for a comprehensive overhaul of the
trust relationship and obligations, one that results in the United
States finally keeping the promises made to us as sovereign nations in
accordance with our special and unique relationship. This change is
urgently needed, as the global pandemic exposes for the whole word to
see the extent to which generations of federal neglect and inaction
have created the unjust and untenable circumstances facing Tribal
Nations in the fight against COVID-19.
Recognition of Inherent Tribal Sovereignty
Tribal Nations are political, sovereign entities whose status stems
from the inherent sovereignty we have as self-governing peoples, which
pre-dates the founding of the Republic. The Constitution, treaties,
statutes, Executive Orders, and judicial decisions all recognize that
the federal government has a fundamental trust relationship to Tribal
Nations, including the obligation uphold the right to self-government.
Our federal partners must fully recognize the inherent right of Tribal
Nations to fully engage in self-governance, so we may exercise full
decisionmaking in the management of our own affairs and governmental
services, including jurisdiction over our lands and people.
However, the full extent of our inherent sovereignty continues to
go unacknowledged and, in some cases, is actively restricted by other
units of government, including the federal, as well as state and local
governments. This serves to undermine the provision of essential
services to our people, including such vital services as public safety,
as well as the continuity and exercise of our cultures. This has
created a crisis in Indian Country, as our people go missing and are
murdered, and are denied the opportunity for safe, healthy, vibrant
communities and traditions enjoyed by other Americans. As members of
SCIA, with a heightened interest in and deeper understanding of these
issues, we expect that you will exercise leadership in this space,
including in circumstances where supporting Tribal sovereignty may be
at odds with other interests or political positions.
Criminal and Civil Jurisdiction over our Homelands
One important reason for higher rates of crime in Indian Country is
the gap in jurisdiction stemming from the United States' failure to
recognize our inherent criminal jurisdiction, allowing those who seek
to do harm to hide in the darkness away from justice. When Tribal
Nations are barred from prosecuting offenders and the federal
government fails in the execution of its obligations, criminals are
free to offend over and over again.
The United States has slowly chipped away at Tribal Nations'
jurisdiction. At first, it found ways to put restrictions on the
exercise of our inherent rights and authorities. And eventually, as its
power grew, the United States shifted from acknowledging Tribal
Nations' inherent rights and authorities to treating these rights and
authorizes as grants from the United States. With this shift in
mindset, recognition of our inherent sovereignty diminished, including
our jurisdictional authorities.
For example, in the 1978 decision of Oliphant v. Suquamish Indian
Tribe, the Supreme Court struck what may be the biggest and most
harmful blow to Tribal Nations' criminal jurisdiction. In that case, it
held Tribal Nations lacked criminal jurisdiction over non-Native
people, even for crimes committed within Indian Country. Without this
critical aspect of sovereignty, which is exercised by units of
government across the United States, Tribal Nations are unable achieve
justice for our communities. While the United States has stripped
Tribal Nations of our own jurisdiction and the resources we need to
protect our people, it has not invested in the infrastructure necessary
to fulfill its obligation to assume this responsibility. As a result,
Indian Country currently faces some of the highest rates of crime, with
Tribal citizens 2.5 times more likely to become victims of violent
crime and Native women, in particular, subject to higher rates of
domestic violence and abuse. Many of the perpetrators of these crimes
are non-Native people.
More recently, the federal government failed to recognize a Tribal
Nation's sovereign right to protect its community from COVID-19. When
it became clear that the state of South Dakota was not going to
institute the public health measures necessary to control the spread of
COVID-19 within its borders, the Cheyenne River Sioux Tribe (CRST)
acted to protect its citizens by installing checkpoints on the highways
leading to its homelands. These checkpoints have been immensely
successful in identifying COVID and mitigating its spread in CRST's
community. However, when the Tribal Nation refused to remove the
checkpoints, the governor of South Dakota wrote to the White House and
Department of Interior (DOI) to request intervention. Despite its legal
obligation to uphold and defend Tribal sovereignty and self-governance,
DOI threatened to withdraw CRST's law enforcement funding if it did not
comply with the governor's request.
It is important to note that over the last decade, the federal
government has made some effort to better recognize Tribal Nation
jurisdiction over our own lands. USET SPF is appreciative of the
efforts of this body in strengthening and improving public safety
across Indian Country. Though many Tribal Nations remain unable to take
advantage of its provisions, the 2013 reauthorization of VAWA was a
major victory for Tribal jurisdiction, self-determination, and the
fight against crime in Indian Country. This law provides crucial
opportunities for Tribal Nations to reassume responsibilities for
protecting their homelands by restoring criminal jurisdiction over non-
Indian individuals in cases of domestic violence against Tribal
citizens.
However, Tribal Nations, the Department of Justice, and others are
reporting oversights in the drafting of the law that prevent the use of
special domestic violence criminal jurisdiction (SDVCJ) and the law
from functioning as intended. USET SPF remains strongly supportive of
several bills aimed at addressing these gaps, including the Justice for
Native Survivors of Sexual Violence Act and the Native Youth and Tribal
Officer Protection Act. Though their provisions were incorporated into
2019 and 2021 VAWA reauthorization proposals, they, along with VAWA,
await further action in the Senate.
As sovereign governments, Tribal Nations have a duty to protect our
citizens, and provide for safe and productive communities. This cannot
truly be accomplished without the full restoration of criminal
jurisdiction to our governments through a fix to the Supreme Court
decision in Oliphant. While we call upon the 117th Congress to take up
and pass the aforementioned legislation, we strongly urge this
Committee to consider how it might take action to fully recognize
Tribal criminal jurisdiction over all persons and activities in our
homelands for all Tribal Nations. Only then will we have the ability to
truly protect our people.
Restrictive Settlement Acts
As we work to ensure that Tribal sovereignty is fully upheld, we
again remind this body that some Tribal Nations, including some USET
SPF member Tribal Nations, are living under restrictive settlement acts
that further limit the ability to exercise criminal jurisdiction over
their lands. These restrictive settlement acts flow from difficult
circumstances in which states demanded unfair restrictions on Tribal
Nations' rights in order for the Tribal Nations to have recognized
rights to their lands or federal recognition. When Congress enacted
these demands by the states into law, it incorrectly allowed for
diminishment of certain sovereign authorities exercised by other Tribal
Nations across the United States.
Some restrictive settlement acts purport to limit Tribal Nations'
jurisdiction over their land or to give states jurisdiction over Tribal
Nations' land, which is itself a problem. But, to make matters worse,
there have been situations where a state has wrongly argued the
existence of the restrictive settlement act prohibits application of
later-enacted federal statutes that would restore to Tribal Nations
aspects of our jurisdictional authority, including VAWA and the Tribal
Law and Order Act (TLOA). In fact, some USET SPF member Tribal Nations
report being threatened with lawsuits should they attempt to implement
TLOA's enhanced sentencing provisions. Congress is often unaware of
these arguments when enacting new legislation. USET SPF asserts that
Congress did not intend these land claim settlements to forever prevent
a handful of Tribal Nations from taking advantage of beneficial laws
meant to improve the health, general welfare, and safety of Tribal
citizens. We continue request the opportunity to explore short- and
long-term solutions to this problem with this Committee.
Cultural Sovereignty
While the practice of spiritual and ceremonial traditions and
beliefs varies significantly among USET SPF Tribal Nations, our
spirituality is overwhelmingly place-based. From the Mississippi Band
of Choctaw Indians' Nanih Waiyah mounds to the ceremonial stone
landscapes of New England, each member Tribal Nation has specific
places and locations that we consider sacred. These places are often
the sites of our origin stories, our places of creation. As such, we
believe that we have been in these places since time immemorial.
Through these sites, we are inextricably linked to our spirituality,
the practice of our religions, and to the foundations of our cultural
beliefs and values. Our sacred sites are of greatest importance as they
hold the bones and spirit of our ancestors and we must ensure their
protection, as that is our sacred duty. As our federal partner in this
unique government-to-government relationship, it is also incumbent upon
all branches of the U.S. government to ensure the protection of these
sites, including by upholding our own sovereign action. As Congress and
the Administration consider a massive infrastructure package as a part
of COVID-19 recovery, this includes seeking the consent of Tribal
Nations for federal actions that impact our sacred sites, lands,
cultural resources, public health, or governance.
Economic Sovereignty
As it is for any other sovereign, economic sovereignty is essential
to Indian Country's ability to be self-determining and self-sufficient.
Rebuilding of our Tribal Nations involves the rebuilding of our Tribal
economies as a core foundation of healthy and productive communities.
We celebrate and acknowledge the recent passage of the Native American
Business Incubators Act and the Indian Community Economic Enhancement
Act, but there is more work to done here, as well. Building strong,
vibrant, and mature economies is more than just business development.
It requires comprehensive planning to ensure that our economies have
the necessary infrastructure, services, and opportunities for our
citizens to thrive; thus resulting in stronger Tribal Nations and a
stronger America. In order to achieve economic success, revenues and
profits generated on Tribal lands must stay within Indian Country in
order to benefit from the economic multiplier effect, allowing for each
dollar to turn over multiple times within a given Tribal economy. It is
critical that inequities and the lack of parity in policy and federal
funding be addressed for Tribal Nations in order to fully exercise our
inherent self-governance to conduct economic development activities for
the benefit of our Tribal citizens.
Further, the U.S. government has a responsibility to ensure that
federal tax law treats Tribal Nations in a manner consistent with our
governmental status, as reflected under the U.S. Constitution and
numerous federal laws, treaties and federal court decisions. With this
in mind, we remain focused on the advancement of tax reform that would
address inequities in the tax code and eliminate state dual taxation.
Revenue generated within Indian Country continues to be taken outside
its borders or otherwise falls victim to a lack of parity. Similarly,
Tribal governments continue to lack many of the same benefits and
flexibility offered to other units of government under the tax code.
Passage of comprehensive tax reform in 2017 without Tribal provisions
was unacceptable, and our exclusion was inconsistent with expressed
Congressional support to strengthen Tribal Nations. USET SPF continues
to press for changes to the U.S. tax code that would provide
governmental parity and economic development to Tribal Nations.
Restoration of Tribal Homelands
Possession of a land base is a core aspect of sovereignty, cultural
identity, and represents the foundation of a government's economy. That
is no different for Tribal Nations. USET SPF Tribal Nations continue to
work to reacquire our homelands, which are fundamental to our existence
as sovereign governments and our ability to thrive as vibrant, healthy,
self-sufficient communities. And as our partner in the trust
relationship, it is incumbent upon the federal government to prioritize
the restoration of our land bases. The federal government's objective
in the trust responsibility and obligations to our Nations must be to
support healthy and sustainable self-determining Tribal governments,
which fundamentally includes the restoration of lands to all federally-
recognized Tribal Nations, as well as the legal defense of these land
acquisitions. With this in mind, USET SPF continues to call for the
immediate passage of a fix to the Supreme Court decision in Carcieri v.
Salazar.
Consultation Reform
As you are likely aware, the Biden Administration has directed all
federal agencies, via Executive Memorandum, to prepare and periodically
update plans to implement E.O. 13175. As a result, Indian Country is
currently engaged in an extremely high level of consultation activity
with the Administration. There is value in the spirit of the January
26th Executive Memorandum, which is to recommit and refocus federal
agencies to engaging in meaningful Tribal consultation. However, these
actions alone are not sufficient to address systemic failures in the
various consultation processes across the federal government. Broadly,
the U.S. must work to reform the Tribal consultation process as
conducted by agencies across the federal government. There must be a
reconciliation to provide certainty, consistency, and accountability in
Tribal consultation. The federal government must work to standardize
and provide a uniform foundation to its Tribal Consultation methods.
Accountability is required to ensure Tribal consultation is
meaningful and results in corresponding federal efforts to honor Tribal
input and mitigate any concerns. All federal agencies, including
independent federal agencies, such as the Federal Energy Regulatory
Commission and the Federal Communications Commission, as well as the
Office of Management and Budget, must be statutorily required to adhere
to consultation policies with additional oversight from the White House
and Congress. USET SPF strongly supports the codification of
consultation requirements for all federal agencies and departments,
including a right of action to seek judicial review of consultation
when the federal government has failed to engage, communicate, and
consult appropriately. We ask that SCIA work with us to make this a
reality.
It is time for a Tribal Nation-defined consultation model, with
dual consent as the basis for strong and respectful diplomatic
relations between two equally sovereign nations. In the short term, we
must move beyond the requirement for Tribal consultation via Executive
Order to a strengthened model achieved via statute. In the long term,
we must return to the achievement of Tribal Nation consent for federal
action as a recognition of sovereign equality and as set out by the
principles of the United Nations Declaration on the Rights of
Indigenous Peoples.
Expansion and Evolution of Tribal Self-Governance
Despite the success of Tribal Nations in exercising authority under
the Indian Self-Determination and Education Assistance Act (ISDEAA), as
well as the recently enacted Practical Reforms and Other Goals to
Reinforce the Effectiveness of Self-Governance and Self-Determination
(PROGRESS) for Indian Tribes Act, the goals of self-governance have not
been fully realized. Many opportunities still remain to improve and
expand upon its principles. An expansion of Tribal self-governance to
all federal programs under ISDEAA would be the next evolutionary step
in the federal government's recognition of Tribal sovereignty and
reflective of its full commitment to Tribal Nation sovereignty and
self-determination. In the case of COVID-19 response, it would provide
for a streamlined and expeditious approach to the receipt and
expenditures of funding from across the federal government, and ensure
these resources can be utilized in ways that reflect the diversity of
Tribal governments.
USET SPF, along with many Tribal Nations and organizations, has
consistently urged that all federal programs and dollars be eligible
for inclusion in self-governance contracts and compacts. We must move
beyond piecemeal approaches directed at specific functions or programs
and start ensuring Tribal Nations have real decisionmaking in the
management of our own affairs and assets. It is imperative that Tribal
Nations have the expanded authority to redesign additional federal
programs to serve best our communities as well as have the authority to
redistribute funds to administer services among different programs as
necessary. To accomplish this requires a new framework and
understanding that moves us further away from paternalism.
Examinations into expanding Tribal self-governance administratively
have encountered barriers due to the limiting language under current
law, as well as the misperceptions of federal officials. USET SPF
stresses to the Committee that if true expansion of self-governance is
only possible through legislative action, the Committee and Congress
must prioritize legislative action on the comprehensive expansion of
Tribal self-governance. This will modernize the federal fiduciary
responsibility in a manner that is consistent with our sovereign status
and capabilities. As an example, in 2013, the Self-Governance Tribal
Federal Workgroup (SGTFW), established within the Department of Health
and Human Services (HHS), completed a study exploring the feasibility
of expanding Tribal self-governance into HHS programs beyond those of
IHS and concluded that the expansion of self-governance to non-IHS
programs was feasible, but would require Congressional action. However,
despite efforts on the part of Tribal representatives to the SGTFW to
attempt to move forward in good faith with consensus positions on
expansion legislation, these efforts were stymied by the lack of
cooperation by federal representatives. USET SPF urges the Committee
and Congress to use its authority to work to legislatively expand
Tribal self-governance to all federal programs where Tribal Nations are
eligible for funding, in fulfillment of the unique federal trust
responsibility to Tribal Nations.
Further, Congress and the Administration should consider
modifications to reporting requirements under ISDEAA and other methods
of funding distribution. The administrative burden of current reporting
requirements under ISDEAA including site visits, ``means testing,'' or
other standards developed unilaterally by Congress or federal officials
are barriers to efficient self-governance and do not reflect our
government-to-government relationship. While obtaining data around
Tribal programs is critical to measuring how well we as Tribal
governments are serving our citizens and how well the federal
government is delivering upon its obligations, Tribal Nations find
themselves expected to report data in order to justify further
investment in Indian Country. This runs counter to the trust
obligation, which exists in perpetuity. The data collected by Tribal
Nations must be understood as a tool to be utilized in sovereign
decisionmaking, not to validate the federal government's fulfillment of
its own promises.
Because funding for Tribal Nations is provided in fulfillment of
clear legal and historic obligations, those federal dollars should not
be subject to an inappropriate, grant-based mentality that does not
properly reflect our diplomatic relationship. USET SPF notes that
federal funding directed to foreign aid and other federal programs are
not subject to the same scrutiny. Grant funding fails to reflect the
unique nature of the federal trust obligation and Tribal Nations'
sovereignty by treating Tribal Nations as non-profits rather than
governments. We reiterate the need for the federal government to treat
and respect Tribal Nations as sovereigns as it delivers upon the
fiduciary trust obligation, as opposed to grantees.
Full Funding for Federal Fiduciary Obligations
The chronic underfunding of federal Indian programs continues to
have disastrous impacts upon Tribal governments and Native peoples.
Native peoples experience some of the greatest disparities among all
populations in this country--including those in health, economic
status, education, and housing. Indeed, in December 2018, the U.S.
Commission on Civil Rights issued the ``Broken Promises'' Report, which
found deep failures in the delivery of federal fiduciary trust and
treaty obligations. The Commission concluded that the funding of the
federal trust responsibility and obligations remains ``grossly
inadequate'' and a ``barely perceptible and decreasing percentage of
agency budgets.''
Above all, the COVID-19 crisis is highlighting the urgent need to
provide full and guaranteed federal funding to Tribal Nations in
fulfillment of the trust obligation. While we unequivocally support
budget stabilization mechanisms, such as Advance Appropriations, in the
long-term, USET SPF is calling for a comprehensive reexamination of
federal funding delivered to Indian Country across the federal
government. Because of our history and unique relationship with the
United States, the trust obligation of the federal government to Native
peoples, as reflected in the federal budget, is fundamentally different
from ordinary discretionary spending and should be considered mandatory
in nature. Payments on debt to Indian Country should not be vulnerable
to year to year ``discretionary'' decisions by appropriators. Recently,
some in Congress, as well as the Biden Administration, have called for
mandatory funding for specific agencies serving Indian Country. USET
SPF strongly supports this proposal, which is more consistent with the
federal trust obligation, and urges that this be realized via an
entirely new budget component--one that contains all of the funding
dedicated to Indian Country. Not only would this streamline access to
these dollars, this mechanism would reflect true prioritization of and
reverence for America's trust obligation to and special relationship
with Tribal Nations. While some will quickly dismiss this as
unrealistic and untenable, when compared against the value of the land
and natural resources the United States gained as part of the exchange,
both voluntarily and involuntarily, it becomes evident that it is
really only a matter of will and desire.
Marshall Plan for Indian Country--Rebuild and Restore Tribal
Infrastructure
For generations, the federal government--despite abiding trust and
treaty obligations--has substantially under-invested in Indian
Country's infrastructure. While the United States faces crumbling
infrastructure nationally, there are many in Indian Country who lack
even basic infrastructure, such as running water and passable roads.
Now, the nation and world are witnessing the deadly consequences of
this neglect, as COVID-19 spreads through Tribal communities that are
unable to implement such simple public health measures as frequent hand
washing. The United States must commit to supporting the rebuilding of
the sovereign Tribal Nations that exist within its domestic borders.
Much like the U.S. investment in the rebuilding European nations
following World War II via the Marshall Plan, the legislative and
executive branches should commit to the same level of responsibility to
assisting in the rebuilding of Tribal Nations, as our current
circumstances are, in large part, directly attributable to the shameful
acts and policies of the United States. In the same way the Marshall
Plan acknowledged America's debt to European sovereigns and was
utilized to strengthen our relationships and security abroad, the
United States should make this strategic investment domestically.
Strong Tribal Nations will result in a strengthened United States. At
the same time, any infrastructure build-out, in Indian Country and
beyond, must not occur at the expense of Tribal consultation,
sovereignty, sacred sites, or public health.
Address Climate Change with Tribal Nations at the Table
Because of where we are located, our members are facing an
increasing number of climate change-related events, including heavy
precipitation leading to subsequent flooding, erosion, and decreases in
water quality. In addition, Tribal Nations located in coastal areas,
including many USET SPF member Tribal Nations, are most at risk to
impacts from sea level rise. In fulfillment of the trust obligation,
the federal government has an inherent responsibility to ensure the
protection of the environmental and cultural resources that support the
health and wellness of Tribal communities, as well as to support Tribal
sovereignty and self-determination. Therefore, it is critical that
Tribal Nations have access to the necessary resources to address the
effects of climate change within our communities. In addition, Tribal
Nations must be included as full partners in broader plans, dialogue,
and legislation in addressing the climate crisis, especially with
regard to establishing policies supporting economic development with
renewable energy.
Conclusion
USET SPF calls upon SCIA and the 117th Congress to join us in
working toward a legacy of change for Tribal Nations, Native people,
and the sacred trust relationship. The COVID-19 pandemic has
underscored the urgent need for radical transformation in the
recognition of our governmental status and the delivery of federal
obligations our people. We can no longer accept the status quo of
incremental change that continues to feed a broken system. The federal
government must enact policies that uphold our status as sovereign
governments, our right to self-determination and self-governance, and
honor the federal trust obligation in full. We look forward to
partnering with this Committee in an effort to advance these policies
in the coming months and years.
______
Prepared Statement of Robin Puanani Danner, Chairwoman, Sovereign
Council of Hawaiian Homestead Associations
Chairman Schatz, Ranking Member Murkowski, Members of the
Committee,
Mahalo for the opportunity to offer priorities as described by your
Committee hearing purpose of February 24, 2021.
For the hearing record, my name is Robin Puanani Danner, a native
Hawaiian with lived experiences among American Indians, Alaska Natives
and of course, here in my homeland of Hawaii. My background is in
banking and finance, business and community development, almost
exclusively on reservations and trust lands.
Today, I submit testimony in my capacity as the elected chairwoman
of the Sovereign Council of Hawaiian Homestead Associations (SCHHA),
serving a second term from 2019-2023. SCHHA is 34 years old this year,
a federally defined Hawaiian Homestead Association under 43 CFR Part 47
& 48, and as a coalition of other selfgoverning homestead associations,
SCHHA is most similar to the National Congress of American Indians and
the Alaska Federation of Natives. SCHHA is governed by a constitution
wholly dedicated to 203,000 acres of trust lands established by the
U.S. Congress in 1920, during the same policy era of other Indian
Allotment Acts.
Homestead Associations also known as Homestead Beneficiary
Associations (HBA's) on our trust lands are defined and codified in
federal regulations as self-governing, with a transparent registration
process with the Secretary of Interior. We mahalo tribal leaders and
Indian Country for the support during the federal rule-making process,
to ensure that our native people, most impacted and most knowledgeable
about our land trust, have a firm seat at the table with our federal
government as it relates to the Hawaiian Homes Commission Act of 1920
(HHCA).
As native people, and due to the geographic distance and isolation
of our trust lands, the federal government delegated day-to-day
administration of our lands, to first the Territory of Hawaii, and then
in 1959 at Statehood, to the State of Hawaii government. Our equivalent
of the Bureau of Indian Affairs within the DoI, is the Office of Native
Hawaiian Relations (ONHR). While this arrangement with a State
government has added additional challenges to the goals of native and
homestead association self-determination, and efficient management of
our lands, there are absolute solutions that we will offer to further
advance the federal promise in 1920 through the HHCA, 100 years ago
this year.
My testimony is organized to address the hearing topic and focus in
2 priority areas for SCIA consideration over the next 2 years with a
particular focus on challenges and solutions of Native American trust
lands, including ours known as Hawaiian Home Lands--access to capital
investment priorities and self-determination & capacity priorities.
I. Access to Capital Investment Priorities
SCHHA offers 6 relevant areas to increase access to capital,
providing outstanding returns on the federal trust relationship with
native Hawaiians.
1. Enactment of the INVEST Act
New Market Tax Credit programming managed by the U.S. Treasury CDFI
Fund, is an incredible source of capital in developing economic
prosperity in underserved areas of the country. NMTC is a successful
and proven public private sector partnership with an opportunity to
invest in the capacity of tribes and tribal/native led organizations to
further increase the deployment in culturally relevant ways on trust
lands across the country.
Recommendation: The INVEST Act drafted in 2019 and 2020 is truly an
excellent piece of legislation that establishes a 10 percent set-aside
of NMTC for Native and Tribal CDFIs and CDE's. We urge the committee to
bring the INVEST Act to the forefront for enactment over the next 2
years.
2. National Intermediary Sole Source Funding for Capacity Building
Annually, federal funds and HUD Section 4 capacity building
program, are sole sourced to four specific national intermediary
nonprofits--NeighborWorks, Enterprise, LISC and Habitat for Humanity.
These organizations have worked across the country delivering powerful
resources and technical support to underserved communities in the areas
of affordable housing and economic development.
However, our trust land areas, whether allotment lands or
reservation lands across the country have struggled to be included at
adequate levels. Engagement with any of the 4 intermediaries is
responsible for countless communities of color and underserved
communities to build strong sustainable community development
nonprofits addressing affordable housing and job creation on the
ground.
Recommendation: To ensure that the oldest citizens of our country
and the trust lands established by our federal government are included
in a greater way, we recommend a focus by members of the SCIA to
advance increased funding levels for the intermediaries, with a 10
percent set-aside directing resources in a systematic and consistent
way to trust land areas and organizations.
3. Reauthorization of NAHASDA
Our Hawaiian Home Lands are a provision of NAHASDA, dedicated to
the unique federal land trust status under the HHCA. Mahalo to SCIA for
shepherding the enactment of NAHASDA for American Indians and Alaska
Natives in 1996 and for native Hawaiians in 2002. Our priorities for
NAHASDA are to improve and ensure greater reach and community
development for our trust lands, the 10,000 homestead allotees or
lessees (homes, farms and ranches), and the 28,000 on the waitlist.
Recommendations: State government has struggled with the ability to
spend down NAHASDA dollars, that at one time for 15 years, were funded
at $10M to $13M annually. Over the last 5 years, due to a severe
backlog by State government, the appropriation was reduced to $2M
annually, and indeed during a time where homelessness and lack of
housing inventory is at crisis levels, especially for our native
people. The solutions we offer are as follows:
a. Sub Granting
Reauthorize NAHASDA to require that the annual allocation to State
government is sub granted to eligible and defined Homestead Beneficiary
Associations or their designated housing authorities or nonprofit
community development corporations, very much in line with the ``self-
determination'' intent in the name of NAHASDA. And in line with our
American Indian and Alaska Native counterparts, where allocations flow
to tribes or their tribally designated housing entities. Our self-
governing homestead associations have been made to be invisible, with
State government indifference to the essence of NAHASDA as it was
intended by the Congress.
This reauthorization improvement would better implement the intent
of NAHASDA, build capacity in our people, our organizations, and
resolve the difficulties of State government. Moreover, this revision
would position native Hawaiians to leverage NAHASDA dollars like
tribally designated housing entities are doing in the private and
philanthropic worlds, whereas it is near impossible to convince any
social or economic investor to issue leveraged capital to a State
government.
We believe it is time for native Hawaiians to join the rest of
Indian Country by replacing the NAHASDA recipient of State government
to our Homestead Beneficiary Associations. It would be untenable for
Indian people to have their NAHASDA allocations directed to the State
of New Mexico or the State of Montana, and so on. Our beloved Senator
Inouye and Senator Akaka envisioned a time when native Hawaiian
homestead associations, like our tribal counterparts, have the capacity
to manage and deploy our NAHASDA dollars. We believe that time has
come, but offer the sub granting revision as a first step toward this
ultimate goal.
b. HUD 184a On or Near
Reauthorize NAHASDA to end, a perhaps unintended consequence of
excluding the words ``on or near'' trust lands for the HUD 184a
mortgage program. Under the Indian NAHASDA, those words are explicit,
and enable American Indians and Alaska Natives to access mobility,
currently denied native Hawaiians. Mobility is indeed a key component
to economic prosperity, for example being able to take jobs in urban
areas or providing housing options to the more than 28,000 on the
waitlist for a trust land allotment, off homesteads.
This small change will also contribute to the economic recovery of
the State of Hawaii, particularly for lenders, realtors, builders and
other homeownership related businesses. We request that under the
section for our Hawaiian Home Lands HUD 184a program, the words ``on or
near'' be added to this section of our NAHASDA law.
c. Annual Funding. Reauthorize NAHASDA with a return to the original
appropriation levels, of at least $13M annually, but we
sincerely request a more adequate level of at least $20M-$30M
to address the reality that the average age of an individual on
the 28,000-person wait list, is 58 years of age. As a country,
we simply must push for the fulfillment of a 100-year-old
promise under the HHCA. Too many of our elders have died
waiting.
Increasing the annual investment of NAHASDA will engage the
economic recovery of our people and the overall State of Hawaii by
funding infrastructure and thousands of housing units, including multi-
family rental units.
d. Technical Assistance to Guard Against Redlining Like Practices.
Reauthorize NAHASDA to provide $500K annually directed at an
HBA designated nonprofit housing authority controlled by HHCA
eligible Hawaiians and accountable to our self-governing
homestead associations, to deliver technical assistance to
trust land borrowers and homeowners to access common loan loss
mitigations and financial literacy, to educate and assist
lenders and servicers to prevent foreclosure, and to directly
engage in assisting waitlist Hawaiians to access relevant
building industry professions for new construction.
4. Native Farmers and Ranchers
One of the areas of greatest revelation from the 2020 Pandemic, is
the severe food insecurity of our island State in Hawaii. There are
more than 1,000 homestead lessees/allotees of agricultural and pastoral
lots on our HHCA trust lands, and we find that the excellent programs
at the USDA Farm Service Agency can help address our food insecurity.
For example, the FSA existing programs have some of the lowest cost
capital and outstanding 40-year amortized repayment terms, wherein our
trust land families are under-represented.
Recommendation: We recommend consideration of requiring USDA and
FSA to designate a deployment goal for FSA loans to be issued to Native
farmers and ranchers on trust lands anywhere in the country including
our trust lands in Hawaii. Similar to how SBA designates internal goals
to deploy section 8(a) business contracts.
We would further recommend consideration of SCIA to create strong
pathways for USDA 502 mortgage loans for rural low to moderate income
families on trust lands and water/waste water programming to also have
a priority of trust lands across the country.
5. Infrastructure & Roads on Trust Lands
Our island state, where our trust lands are located on 6 islands in
4 counties, transportation and energy are two of the most significant
costs of Native organizations, businesses and families. Recommendation:
We recommend the deliberation of SCIA in addressing the inclusion of
our trust lands in road development, upgrades and maintenance programs
at the Department of Transportation similar to programs for other trust
land areas around the country. 6. Trust Land Safe Communities. One of
the areas important to Homestead Associations across our land trust, is
empowering and implementing homestead community-based neighborhood
watch programming, not just to deter crime, but also to be a consistent
presence for families with troubled youth or young adults. The most
successful neighborhood watch programs today on our trust lands, are
organized and led by our kupuna (elders), and religious leaders,
however only a handful exist, and are greatly needed across the pae
aina.
Recommendation: We recommend the deliberation of SCIA in including
our trust land areas and federally defined Homestead Associations in
programming at the Department of Justice, Office of Tribal Justice, to
access technical assistance and support of homestead community-based
solutions.
II. Self Determination & Capacity Priorities
Honorable Committee members, there is a body of research from
prestigious organizations, including the Harvard Project on Indian
Economic Development, that confirms the policy era of self-
determination, robustly initiated over several Presidential
administrations. With the leadership and plenary powers of Congress,
this policy era remains largely in place making great strides in
addressing the needs of Alaska Natives, American Indians and Native
Hawaiians whenever it has been applied.
The prior policy eras of assimilation and termination, where
paternalistic approaches in Washington DC and various State governments
are a dark and difficult history. For us, as native Hawaiians, under 43
CFR Part 47 and 48, it clearly states that the Congress recognizes 3
parties to successfully implement the HHCA--the federal government,
state government and native Hawaiians, which further codified a
definition of representative Homestead Associations. As a native
people, with a federally established land trust in our homeland, we
know that greater efforts to embrace self-determination of our people
will position us to be very much a part of the economic recovery of
Hawaii, but also the prosperity of the tens of thousands on the land
and those awaiting a homestead land award.
SCHHA offers 5 priorities to advance the long-held solution of all
native peoples, the policy of selfdetermination:
1. Self Determination of Homestead Associations
HBA's, similar to tribal organizations and tribal consortiums, we
have outstanding elected homestead leaders that include farmers and
ranchers like Chairman Mike Hodson of Hawaii Island or Kupuna Kammy
Purdy of Molokai. Others include experienced first responders like
SCHHA Councilman Richard Soo of Oahu, and housing advocates like the
SCHHA administrator, Faisha Solomon of Kauai.
Recommendations: A commitment by the SCIA to engage with federally
defined Homestead Associations in its committee work, in maximizing
opportunities in legislative initiatives of the committee to include
the federally defined language of our Homestead Associations, and to
include required consultation language with these HBAs for federal
agencies to adopt as a best practice.
2. Act 302
This amendment to the HHCA adopted by the State of Hawaii
Legislature more than a decade ago, requires the consent of Congress.
Enactment would in effect, bring to bear for native Hawaiians and our
HBAs, the success enjoyed in Indian Country commonly known as ``638
contracting''.
Recommendation: We urge the committee to take up consent of Act
302.
3. Capacity Building Capital
Practically zero resource investment has been made in the capacity
building work of Homestead Associations by the federal government to
advance the self-determination tenets of the HHCA or NAHASDA.
Recommendation: We request the committee to support the
establishment and funding for a Homestead Association Self
Determination Capacity Building program at the DOI, Office of Native
Hawaiian Relations with an appropriation of $5M annually to issue
equity funds to HBAs to continue organizational capacity building
efforts as well as seed funding for projects led by HBAs on trust
lands.
4. Federal Regulations for the HHCA
The HHCA was enacted in 1920 by the U.S. Congress. The
congressional champion at that time, was the Hawaii Territorial
delegate, Prince Jonah Kuhio Kalanianaole. A year after passage, our
native Hawaiian champion that mirrored our land trust law after similar
federal Indian policies of that era, passed away in 1922. As a result,
the next step, federal rulemaking never occurred, creating an
environment of instability in how our land trust has been administered
by administration to administration both at the federal level and state
government level.
Mahalo Chairman Schatz for your work in 2013-2016 to establish the
very first two rules by DOI and DOJ on land transfers and amendments to
the HHCA. These rules have improved the process to engage native
Hawaiians and now federally defined HBA's. We believe both
Representative Jonah Kuhio Kalanianaole (R-Territory of Hawai'i) and
Senator Akaka (D-Hawai'i), avid advocates of our HHCA land trust law
would agree that federal rule making provides common sense stability
for generations of Hawaiians to fulfill the promise of the HHCA.
Recommendation. We request the inclusion in an SCIA committee
report, calling for the continued promulgation of federal regulations
on our 100-year-old HHCA land trust law. Our request for rulemaking is
to begin with HHCA section 204, 207, 213/214 and 219 to create
stability and transparent processes for native Hawaiians that we have
largely lived without for too long.
5. Act 80
In 2017, the State of Hawaii legislature enacted an amendment to
lower the Blood Quantum of our successors (family members) on trust
lands, from 1/4 to 1/32, which requires Congressional consent.
Recommendation. We urge the committee to take up consent of Act 80
to provide familial stability for generations.
Mahalo for the opportunity to answer the call from the SCIA
committee on relevant native priorities, especially from Chairman
Schatz, Hawaii's Senator. Malama Pono.
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