[Senate Hearing 117-360]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 117-360

        S. 1397, S. 3168, S. 3308, S. 3443, S. 3773 AND S. 3789

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                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 23, 2022

                               __________

         Printed for the use of the Committee on Indian Affairs
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]         


                      COMMITTEE ON INDIAN AFFAIRS
                      
                              __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
48-509 PDF                 WASHINGTON : 2022                     
          
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                     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
       Lucy Murfitt, Minority Staff Director and General Counsel
                            
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on March 23, 2022...................................     1
Statement of Senator Cortez Masto................................    38
Statement of Senator Kelly.......................................    18
Statement of Senator Murkowski...................................     2
Statement of Senator Schatz......................................     1
Statement of Senator Shelby......................................     8
Statement of Senator Smith.......................................     9

                               Witnesses

Byrd, Hon. Lebaron, Chief, Mowa Band of Choctaw Indians..........    26
    Prepared statement...........................................    28
Figueroa, Marvin, Director, Intergovernmental and External 
  Affairs, U.S. Department of Health and Human Services..........    10
    Prepared statement...........................................    11
Flores, Hon. Amelia, Chairwoman Colorado River Indian Tribes.....    20
    Prepared statement...........................................    21
Lee-Gatewood, Hon. Gwendena, Tribal Chairwoman, White Mountain 
  Apache Tribe Fort Apache Indian Reservation....................    13
    Prepared statement...........................................    15
Newland, Hon. Bryan, Assistant Secretary, Indian Affairs, 
  Department of the Interior.....................................     3
    Prepared statement...........................................     5
Pickernell, Hon. Harry Sr., Chairman, Confederated Tribes of the 
  Chehalis Reservation...........................................    24
    Prepared statement...........................................    25
Prescott, Darin M., Health and Clinic CEO, Lower Sioux Indian 
  Community/Board Member, Great Lakes Area Tribal Health Board...    30
    Prepared statement...........................................    32

                                Appendix

Buschatzke, Thomas, Director, Arizona Department of Water 
  Resources, prepared statement..................................    41
Letters of support, submitted for the record 


Mohave County Water Authority, prepared statement................    41
Response to written questions submitted by Hon. Ben Ray Lujan to:
    Marvin Figueroa..............................................    58
    Hon. Bryan Newland...........................................    56
    Darin M. Prescott............................................    64
Response to written questions submitted by Hon. John Hoeven to:
    Marvin Figueroa..............................................    57
    Hon. Bryan Newland...........................................    55
Response to written questions submitted by Hon. Brian Schatz to:
    Hon. Lebaron Byrd............................................    65
    Hon. Amelia Flores...........................................    51
    Hon. Bryan Newland...........................................    54
Ute Indian Tribe of the Uintah and Ouray Reservation, prepared 
  statement......................................................    44

 
        S. 1397, S. 3168, S. 3308, S. 3443, S. 3773 AND S. 3789

                              ----------                              


                       WEDNESDAY, MARCH 23, 2022


                                       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.
    During today's legislative hearing, we will consider six 
bills: S. 1397, the Tribal Health Data Improvement Act of 2021; 
S. 3168, a bill to amend the White Mountain Apache Tribe Water 
Rights Quantification Act of 2010 to modify the enforceability 
date for certain provisions, and for other purposes; S. 3308, 
the Colorado River Indian Tribes Water Resiliency Act of 2021; 
S. 3443, MOWA Band of Choctaw Indians Recognition Act; S. 3773, 
a bill to amend leases of up to 99 years for land held in trust 
for the Confederated Tribes of the Chehalis Reservation; and S. 
3789, a bill to amend the Native American Tourism and Improving 
Visitor Experience Act to authorize grants to Indian tribes, 
tribal organizations, and Native Hawaiian organizations, and 
for other purposes.
    Senator Smith's bill, S. 1397, would expand tribal access 
to public health care data and public health surveillance 
programs. It would also reauthorize through Fiscal Year 2025 
the National Center for Health Statistics, which is part of the 
CDC and require the CDC to take certain actions to address the 
collection and availability of health data for American Indians 
and Alaska Natives.
    Senator Kelly has two bills on today's agenda. S. 3168 
would extend the timeline for the White Mountain Apache Tribe's 
2010 Water Settlement with the Federal Government and increased 
appropriations. And S. 3308 would authorize the Colorado River 
Indian Tribes to enter into an intergovernmental agreement with 
the State of Arizona to make portions of their water allocation 
available for leasing by off-reservation users.
    Senator Shelby's bill, S. 3343, would extend federal 
recognition to the MOWA Band of Choctaw Indians of Alabama. And 
Senator Cantwell's bill, S. 3773, would make a technical 
amendment to the Long-Term Leasing Act to permit the Chehalis 
Tribe of Washington to enter into 99-year leases of restricted 
Indian lands located outside the boundaries of their 
reservations.
    The final bill on the agenda is 3789. I introduced this 
bill to amend the NATIVE Act to clarify that BIA and the Office 
of Native Hawaiian Relations have the authority to issue grants 
established pursuant to the Act and to authorize appropriations 
for those purposes.
    Before I turn to Vice Chair Murkowski, I would like to 
extend my welcome and appreciation to our witnesses for joining 
us today. I look forward to your testimony and our discussion.
    Vice Chair Murkowski.

               STATEMENT OF HON. LISA MURKOWSKI, 
                    U.S. SENATOR FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman. I am looking 
forward to today's hearing.
    Before I begin my comments, I want to acknowledge the loss 
that we have seen in Alaska. Just last Friday, we lost the 
Congressman for all Alaska, a Congressman who had been serving 
for 49 years in the 49th State. He had a passion for the people 
of Alaska, but most notably, the Alaska Native people. He was 
proud to be the chairman of the Subcommittee on Indigenous 
Peoples of the United States. And his legacy in focusing on 
matters that were important and timely for Native peoples 
around our Country is something that we will continue to pay 
tribute and recognize his contributions. I wanted to introduce 
that at the top of the Committee here.
    Today, we are considering six bills, as you have noted. 
Three of these bills deal with tribal land use and water 
rights. One would extend full recognition to a State-recognized 
tribe in Alabama. Another would clarify authorities to issue 
grants under the NATIVE Act.
    All of these measures, of course, are important. But in the 
interest of time today, I will limit my comments to the bill 
that I am co-leading with Senator Smith. This is the Tribal 
Health Data Improvement Act of 2021, S. 1397. What we intend to 
do with this legislation is to amend the Public Health Service 
Act to ensure that Indian tribes, tribal organizations, and 
tribal epidemiology centers have parity access to public health 
data and surveillance programs guaranteed to them as tribal 
public health authorities under federal existing law.
    During the height of the pandemic, the 12 tribal 
epidemiology centers in the Country, which includes Alaska 
Native Tribal Health Consortium, faced some very real 
challenges in accessing health information about American 
Indians and Alaska Natives. In some cases, TECs were outright 
denied access to lifesaving data that the CDC routinely made 
available to other public health authorities, including State 
health departments. Access to epidemiological data is vital for 
TECs to provide accurate and timely public health information, 
including recommendations to the Native communities they serve.
    Just a couple weeks ago, the GAO issued a report confirming 
this public health data access problem. They made five 
recommendations, including that HHS clarify the data it will 
make available to TECs as required by existing federal law, and 
that the CDC and IHS develop guidance on how TECs should 
request data and develop agency procedures on responding to 
these requests. Our bill would, in effect, implement these GAO 
recommendations.
    I am looking forward to hearing the testimony from HHS on 
this bill. I would hope that my colleagues on the Committee 
will be there to support this measure as we work it through. I 
think we recognize that we would like to get this done so that 
there are no needless delays in accessing important health 
data.
    Again, I too join you in thanking all of the witnesses in 
being here before the Committee today. I look forward to their 
testimony and the questioning from colleagues.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Vice Chair Murkowski.
    We will turn to our witnesses now. We have the Honorable 
Bryan Newland, Assistant Secretary, Indian Affairs, the 
Department of the Interior. Mr. Marvin Figueroa, Director of 
the Intergovernmental and External Affairs, at the Department 
of Health and Human Services.
    I would like to call on Senator Kelly to introduce his 
guests and witnesses remotely.
    [Technical difficulties.]
    The Chairman. We are going to move on to Senator Cantwell's 
guest, who is the Honorable Harry Pickernell, Sr. Chairman 
Pickernell has served as Chairman of the Confederated Tribes of 
the Chehalis Reservation for the past five years. He has also 
served as Vice Chairman of the tribe and previously worked in 
the tribe's natural resource department. In all these roles, 
Chairman Pickernell has worked to expand economic opportunities 
for the Chehalis tribes and its citizens.
    Senator Kelly. if you are not available, I will go ahead 
and provide the introductions for you.
    All right, in the interest of time, we do have a vote 
ongoing, so we are going to move this along. We have the 
Honorable Gwendena Lee-Gatewood, Chairwoman of the White 
Mountain Apache Tribe, Whiteriver, Arizona, and the Honorable 
Amelia Flores, Chairwoman of the Colorado River Indian Tribes, 
Parker, Arizona.
    We are going to wait on Senator Shelby. I know it is 
important for him to introduce his guest.
    [Pause.]
    The Chairman. We will start with the testimony and when 
Senators Smith and Shelby arrive, they can introduce their 
witnesses.
    We will start with Mr. Newland. You know the drill. Please 
confine your remarks to five minutes. We appreciate precision 
and brevity. Secretary Newland.

          STATEMENT OF HON. BRYAN NEWLAND, ASSISTANT 
         SECRETARY, INDIAN AFFAIRS, DEPARTMENT OF THE 
                            INTERIOR

    Mr. Newland. Thank you, Mr. Chairman and members of the 
Committee. Aanii, good afternoon. My name is Bryan Newland and 
I have the privilege of serving as Assistant Secretary for 
Indian Affairs here at the Department of the Interior. It is an 
honor to be back in front of the Committee today.
    Before I begin, as Vice Chair Murkowski noted, I also want 
to acknowledge the passing of the Dean of the House, 
Congressman Don Young. My condolences go out to his family, his 
friends and his staff and colleagues here. He was a loving 
husband, both to his wife Lula, and later to Anne. He was a 
father, a veteran, a teacher at a BIA school. He loved telling 
me that story. He spent much of his life in rural Alaska, and 
he was very proud of that.
    I know he was also a friend to many people here and in 
Congress. He was a friend to Secretary Haaland. His passing is 
a personal loss for many folks here. I am very sorry for those 
who are grieving his loss today.
    Mr. Chairman, you have invited me here to share the 
Department's views on several pieces of legislation. S. 3773 
would authorize leases of up to 99 years for land held in trust 
for the Confederated Tribes of the Chehalis Reservation. The 
Long-Term Leasing Act generally authorizes tribes to lease 
their lands for up to 25 years with a renewal period of 25 
years, subject to the Secretary's approval. If a tribe wishes 
to enter into a lease of their own lands for a longer period, 
it must come to Congress and get approval for that in the form 
of an amendment to the Long-Term Leasing Act.
    The Confederated Tribes of the Chehalis Reservation are 
seeking the ability to lease their lands for up to 99 years, to 
strengthen their sovereignty over their own lands and to 
promote economic development. The Department supports this 
bill.
    S. 3168 would amend the White Mountain Apache Water Rights 
Quantification Act of 2010 two ways. First, it would extend the 
enforceability date of the settlement by two years until April 
30th, 2025. Second, it would authorize an additional $250 
million for design and construction of the tribe's rural water 
system.
    Additional funds are needed to complete the construction of 
infrastructure included in the tribe's settlement act. The need 
for those funds has arisen due to unexpected problems in the 
original design of the drinking water infrastructure.
    The Department supports the intent of this bill and has 
been working with the tribe to develop a more reliable 
assessment of the level of funding needed to fulfill the terms 
of the settlement act. I look forward to continuing our work 
with the tribe, the sponsors of the bill and the Committee on 
this legislation, so that we can authorize the amount of funds 
needed to fulfill the settlement act.
    S. 3308 would authorize the Colorado River Indian Tribes to 
enter into agreements to lease, exchange, or store a portion of 
its decreed water rights in Arizona. The bill is carefully 
balanced among interests in the lower Colorado River Basin and 
contains important safeguards to promote the conservation of 
water.
    For example, the bill requires several agreements between 
the tribe, the State, and the United States for any lease, 
exchange or storage agreement. The legislation would only 
authorize the tribes to lease, exchange, or store that portion 
of their water right that is consumptively used in Arizona in 
four of the five preceding years. Agreements can only be for 
use in the lower basin portion of Arizona, and cannot exceed a 
term of 100 years.
    The Department supports this legislation, and supports the 
right of all tribes to achieve economic value from their water 
rights.
    S. 3443 would provide federal recognition for the MOWA Band 
of Choctaw Indians, designate a service area, and require the 
Secretary of the Interior to take up to 3,200 acres of land 
into trust for the band. The MOWA Band had previously 
petitioned the Department for federal recognition under our 
regulations at 25 C.F.R. Part 83. The Department denied the 
MOWA Band's petition in 1997. We respect Congress' authority to 
recognize tribes under its Article 1 powers.
    This proposed legislation does not include any findings or 
information identifying facts or circumstances that would aid 
us in understanding the merits of the proposal. Therefore, we 
do not express support or opposition to the legislation at this 
time.
    S. 3789 would amend the NATIVE Act by creative a new 
section to allow the director of the Office of Native Hawaiian 
Relations to make grants directly to Native Hawaiian 
organizations. Presently, the Department makes grants to Native 
Hawaiian organizations under the NATIVE Act through a process 
that can be cumbersome.
    This legislation would simplify that process and ensure 
that Native Hawaiian organizations have an opportunity to 
access this important program. We support this bill.
    Chairman Schatz, Vice Chair Murkowski, members of the 
Committee, thank you for the opportunity to provide the 
Department's views today. I look forward to answering your 
questions.
    [The prepared statement of Mr. Newland follows:]

 Prepared Statement of Hon. Bryan Newland, Assistant Secretary, Indian 
                  Affairs, Department of the Interior
Introduction
    Aanii (hello) and good afternoon, Chairman Schatz, Vice Chair 
Murkowski, and members of the Committee. My name is Bryan Newland, and 
I serve as the Assistant Secretary for Indian Affairs at the U.S. 
Department of the Interior (Department).
    Thank you for the opportunity to present the Department's views on 
S. 3773, a bill to authorize leases of up to 99 years for land held in 
trust for the Confederated Tribes of the Chehalis Reservation, S. 3168, 
the White Mountain Apache Water Settlement Act Amendment, S. 3308, the 
Colorado River Indian Tribes Water Resiliency Act of 2021, S. 3443, the 
MOWA Band of Choctaw Indian Recognition Act, and S. 3789, a bill to 
amend the Native American Tourism and Improving Visitor Experience Act 
to authorize grants to Indian tribes, tribal organizations, and Native 
Hawaiian organizations, and for other purposes.
S. 3773, a bill to authorize leases of up to 99 years for land held in 
        trust for the Confederated Tribes of the Chehalis Reservation
    Since the enactment of the Non-Intercourse Act of June 30, 1834, 4 
Stat. 730, codified as 25 U.S.C.  177, and predecessor statutes, land 
transactions with Indian tribes were prohibited unless specifically 
authorized by Congress. The Act of August 9, 1955, or the Long-Term 
Leasing Act (LTLA), codified at 25 U.S.C.  415, provides the authority 
for Indian tribes to enter into surface leases with third parties with 
the approval of the Secretary of the Interior. The Act limits lease 
agreement terms to 25 years with an option to renew for an additional 
25 years.
    Since 1955, Indian tribes have engaged in a diverse array of 
activities to facilitate economic development, and many have required 
lease agreements for terms longer than 50 years on their lands. 
Authorizing Indian tribes to lease their trust lands for terms longer 
than the 50-year maximum requires Congress to amend the LTLA to add 
tribes' names to it. Since its enactment in 1955, Congress has added 59 
Indian tribes to the LTLA for this purpose. The most recent addition to 
the LTLA was signed into law in 2018 for the Crow Tribe of Montana as 
section 206 of the Indian Tribal Energy and Self-Determination Act 
Amendments of 2017 (Pub. L. 115-325) and the most recent standalone 
legislation was in 2011 for lands held in trust for Ohkay Owingeh 
Pueblo (Pub. L. 111-381.)
    In order to develop supply chain infrastructure, the Confederated 
Tribes of the Chehalis Reservation are seeking financing to make 
improvements to an existing facility located on tribal trust land to 
secure a lease of the facility with an outside entity. The financing 
required for the project requires a lease agreement term of at least 86 
years. S. 3773 provides for an amendment to include the trust lands of 
the Confederated Tribes of the Chehalis Reservation on the list of 
tribes in the LTLA so that the Tribes will have the flexibility to 
enter into leases of up to 99 years to finance this and future economic 
development projects.
    The Department supports this change as it would facilitate economic 
development opportunities for the Tribes.
S. 3168, a bill to amend the White Mountain Apache Tribe Water Rights 
        Quantification Act of 2010 to modify the enforceability date 
        for certain provisions, and for other purposes
    The Department supports ongoing efforts to implement the White 
Mountain Apache Tribe Water Rights Quantification Act of 2010, Pub. L. 
111-291, tit. III, 124 Stat. 3064, 3073-96, amended by Pub. L. 115-227, 
132 Stat. 1626 (2018), amended by Pub. L. 116-94, div. C., tit. II,  
206, 133 Stat. 2534, 2669 (2019) (Quantification Act). We would like to 
work with the Tribe and the sponsors to craft a bill that we can fully 
support.
Background
    The Quantification Act approved the White Mountain Apache Tribe 
Water Rights Quantification Agreement (Quantification Agreement) 
settling the White Mountain Apache Tribe's (WMAT) water rights in 
Arizona. The Quantification Act authorizes the design and construction 
of the WMAT rural water system, consisting of a dam and storage 
reservoir, pumping plant, distribution system and water treatment 
facilities. The WMAT rural water system will address the significant 
water infrastructure needs on the Reservation.
    The Quantification Act established several funds and subaccounts to 
assist in its implementation. Two funds were established in Treasury: 
the WMAT Settlement Fund and the WMAT Maintenance Fund; and two 
subaccounts in the Lower Colorado River Basin Development Fund: the 
WMAT Water Rights Settlement Subaccount (Settlement Subaccount) and the 
WMAT Cost Overrun Subaccount (Cost Overrun Subaccount). The Tribe may 
use funds in the Settlement Subaccount to plan, design, and construct 
the WMAT rural water system. Following amendments in 2018, the WMAT 
Settlement Fund may also be used for planning, design and construction 
of the WMAT rural water system and other water-related projects. The 
Cost Overrun Subaccount may be used to complete, operate, and maintain 
the WMAT rural water system if Settlement Subaccount funds are 
insufficient. The Tribe may use the WMAT Maintenance Fund to operate, 
maintain, and replace the WMAT rural water system after title to the 
system transfers to the Tribe.
    The Settlement Subaccount was authorized to consist of $126,193 
million (indexed) in mandatory appropriations and the Cost Overrun 
Subaccount was authorized to consist of $24 million (indexed) from 
mandatory appropriations and $11 million (indexed) of discretionary 
appropriations. The Quantification Act authorized $78.5 million 
(indexed) for deposit in the WMAT Settlement Fund. In 2011, mandatory 
appropriations for the Settlement Subaccount and Cost Overrun 
Subaccount were placed into those subaccounts. In 2022, the Department 
announced the allocation of $109,106 million from the Indian Water 
Rights Completion Fund, established by the Bipartisan Infrastructure 
Law, to the WMAT Settlement Fund.
    The Quantification Agreement, including waivers, will not become 
enforceable until certain conditions are satisfied. One of those 
conditions is the issuance of a record of decision by the Secretary 
approving construction of the WMAT rural water project. The Secretary 
must publish in the Federal Register a statement of findings that all 
conditions for enforceability have been satisfied by no later than 
April 30, 2023, or the Quantification Act will be repealed by operation 
of law. Currently, Miner Flat Dam is the only project component that is 
not yet designed to a thirty percent design level, the level of design 
usually necessary for environmental compliance activities to move 
forward and enforceability of the Quantification Act to be reached.
    During the design of Miner Flat Dam, the Tribe identified 
significant concerns about unanticipated seepage. Reclamation worked 
closely with the Tribe to better define, characterize, and understand 
seepage at the proposed site for Miner Flat Dam. Currently, efforts to 
design Miner Flat Dam are still ongoing, however significant cost 
increases above the originally authorized amounts have been identified 
because of measures necessary to address the unanticipated seepage. The 
increased costs above the originally authorized funds available for 
construction and the rapidly approaching enforceability date are the 
impetus for S. 3168. The extent of the increased cost is unknown at 
this time, but it is anticipated to significantly exceed originally 
authorized funding sourced identified in the originally enacted 
Quantification Act.
S. 3168
    S. 3168 would amend the White Mountain Apache Tribe Water Rights 
Quantification Act of 2010 to extend by two years the deadline for the 
Secretary of the Interior to publish in the Federal Register a 
statement of findings that enumerated conditions precedent to 
enforceability of the settlement have occurred. S. 3168 would also 
authorize an additional $250 million to be added to the Cost Overrun 
Subaccount for the design and construction of the WMAT rural water 
system, including Miner Flat Dam.
    The Department agrees with the Tribe that there are significant 
challenges and cost gaps associated with the design of the WMAT rural 
water delivery system, specifically Miner Flat Dam. The Bureau of 
Reclamation and the Tribe have been working to reach agreement on the 
final project design and cost estimates of Miner Flat Dam, but work 
remains to be done. At this time, the Department cannot determine 
whether the additional $250 million proposed by S. 3168 would provide 
sufficient funding to complete the WMAT rural water system. In 
addition, S. 3168 raises questions about the timing of indexing for 
newly authorized appropriations. The Department would like to resolve 
those questions with the Tribe and the bill sponsors.
    The Department supports the intent of S. 3168 to provide the means 
to complete a needed rural water supply project for the Tribe. We agree 
and support an amendment that would extend the enforceability date of 
the Quantification Act to 2025. We are committed to working with the 
Tribe, the bill sponsors, and this committee to develop a more reliable 
cost estimate and to clarify indexing of any additional appropriations.
S. 3308, Colorado River Indian Tribes Water Resiliency Act of 2021
    The Colorado River Indian Tribes' (CRIT) Reservation is located in 
Arizona and California. The United States Supreme Court in Arizona v. 
California, 547 U.S. 150 (2006), quantified CRIT's water rights from 
the Colorado River for the California and Arizona portions of the 
Reservation separately. In Arizona, the Reservation has a decreed right 
to divert 662,402 acre-feet per year of Colorado River water or to the 
consumptive use required for irrigation of 99,375 acres and 
satisfaction of related uses, whichever (diversion or consumptive use) 
is less, with priority dates from 1865 to 1874. CRIT historically has 
diverted about 90 percent of this entitlement.
    Since at least 2016, CRIT has been seeking legislation that would 
authorize leasing, exchanging, and storing a portion of its decreed 
water rights located in Arizona to off-Reservation users, similar to 
the rights to lease Central Arizona Project Water in Arizona granted to 
Tribes under various Indian water rights settlements in Arizona. CRIT 
worked closely with the State of Arizona and non-Indian water users to 
craft legislation that would address concerns over this proposed use of 
decreed water rights. Those efforts culminated in S. 3308.
S. 3308
    S. 3308 would authorize CRIT to enter into agreements to lease, 
exchange, or store a portion of its decreed water rights in Arizona, 
subject to certain conditions. The bill requires several agreements to 
be entered into with the State and the United States as conditions 
precedent to entering into any lease, exchange or storage agreement. 
First, CRIT must enter into an agreement with the State outlining 
notice, information sharing, and collaboration requirements that will 
apply to any lease, exchange, or storage agreement into which CRIT may 
enter. Second, CRIT, the State, and the Secretary of the Interior must 
enter into an agreement establishing the procedural, technical, and 
accounting methodologies for any lease, exchange, or storage agreement 
CRIT may enter into. Finally, S. 3308 directs the Secretary to approve 
or disapprove any lease, exchange, or storage agreement, or 
modifications to the same, so long as it is consistent with S. 3308 and 
the agreement.
    S. 3308 provides that only that portion of CRIT's water right that 
was consumptively used in Arizona four of the five years immediately 
preceding a proposed agreement would be available for lease, exchange, 
or storage. In addition, the agreements could be entered into only for 
use in the Lower Basin portion of the State and could not exceed a term 
of 100 years. CRIT would be responsible for negotiating all agreements, 
payments would be made directly to CRIT, and the Secretary would have 
no trust responsibility with respect to funds paid to CRIT.
    S. 3308 is the result of many years of negotiations between the 
CRIT and the State and its water users. Enactment of S. 3308 is 
consistent with principles of self-determination and Tribal 
sovereignty. The Department supports the right of all Tribes to achieve 
economic value from their water rights and supports S. 3308.
S. 3443, MOWA Band of Choctaw Indians Recognition Act
    S. 3443 would provide federal recognition for the MOWA Band of 
Choctaw Indians (MOWA Band). The legislation would also designate a 
service area and require the Secretary of the Interior to take up to 
3,223 acres into trust for the MOWA Band within that service area.
    Federal acknowledgment of an Indian tribe officially recognizes the 
sovereign nation-to-nation relationship the United States shares with 
the indigenous tribes that have inhabited our country since time 
immemorial. There are two methods by which tribes can attain federal 
recognition: through Congress or through the Department's 
administrative process. Both processes are legitimate avenues for a 
tribe to obtain federal recognition.
    On May 19, 1983, the MOWA Band submitted a letter of intent to the 
Department petitioning for federal recognition under 25 C.F.R. Part 83. 
The Department evaluated the MOWA Band's petition under the prior 
regulations at 25 C.F.R.  83.10(e) (1994) which provided for an 
expedited finding on a single criterion when the documented petition 
and response to the technical assistance letter indicates that there is 
little or no evidence that the petitioner can meet the mandatory 
criteria. The Department found that the MOWA Band could not meet the 
criteria requiring that the petitioner descend from a historical Indian 
tribe or from historical Indian tribes which combined and functioned as 
a single autonomous political entity. On December 16, 1997, the 
Department issued a negative determination on the MOWA Band's petition 
under Part 83.
    The MOWA Band now seeks recognition through the legislative 
process. While the Department's previous determination on the Band's 
application may differ from the present views of Congress, we recognize 
that Congress has plenary power over Indian Affairs and retains the 
authority to federally recognize tribes through legislation. The 
Department respects the MOWA Band's choice to seek recognition through 
the legislative process. At this time the Department neither opposes 
nor supports this legislation.
S. 3789, a bill to amend the Native American Tourism and Improving 
        Visitor Experience Act to authorize grants to Indian tribes, 
        tribal organizations, and Native Hawaiian organizations, and 
        for other purposes.
    S. 3789 would amend the Native American Tourism and Improving 
Visitors Experience (NATIVE) Act (P.L. 114-221) by creating a new 
section 6 (redesignating the current section 6 as section 7) that would 
allow the Director of the Bureau of Indian Affairs to make grants to 
Indian Tribes and tribal organizations, and the Director of the Office 
of Native Hawaiian Relations to make grants to Native Hawaiian 
organizations. The NATIVE Act, signed into law in 2016, requires the 
Department of Commerce, the Department of the Interior, and federal 
agencies with recreational travel or tourism functions to update their 
management plans to include Indian tribes, tribal organizations, and 
Native Hawaiian organizations. The Department supports this bill.
Conclusion
    Chairman Schatz, Vice Chair Murkowski, and Members of the 
Committee, thank you for the opportunity to provide the Department's 
views on these important bills. I look forward to answering any 
questions.

    The Chairman. Thank you very much, Mr. Secretary.
    We are going to have Senator Shelby introduce his guest, 
and Senator Smith introduce hers. Then we will move on to Mr. 
Figueroa from HHS.
    Senator Shelby, it is a pleasure to have you here.

               STATEMENT OF HON. RICHARD SHELBY, 
                   U.S. SENATOR FROM ALABAMA

    Senator Shelby. Thank you.
    Chairman Schatz, Vice Chairman Murkowski, members of the 
Senate Indian Affairs Committee, it has been a number of years 
since I have appeared before your Committee. Thank you for 
allowing me here today to have the opportunity to introduce Dr. 
Lebaron Byrd, seated right here, and express my strong support 
for providing federal recognition to the MOWA Band of Choctaw 
Indians in my State of Alabama.
    Dr. Byrd currently serves as the Tribal Chief of the MOWA 
Band of Choctaw Indians. He is a native of Mobile County. Dr. 
Byrd has been a tribal member of the MOWA Band for more than 40 
years, serving in various roles on the tribe's council. He has 
served in leadership positions in community organizations all 
across south Alabama. In particular, Dr. Byrd has worked to 
help provide greater educational opportunities for Native 
American students in both Mobile and Washington counties, as a 
teacher and administrator for 34 years.
    During this hearing later, Dr. Byrd will testify about the 
MOWA Band's distinct history as an indigenous community, which 
warrants the need to grant the tribal federal recognition. The 
MOWA Band is comprised of Choctaw descendants that remained in 
Alabama following the removal of the main Choctaw Nation to 
Oklahoma. The MOWA Band occupied lands that were part of the 
original territory of the Choctaw Nation in south Alabama.
    Today, the MOWA Band continues to occupy the same territory 
where the tribe provides essential government and community 
services to its citizens. The MOWA Band has been recognized as 
a tribal community by various government agencies and entities 
for several decades, including the State of Alabama in 1979.
    Yet to date, the MOWA Band still lacks federal recognition 
as a tribe under U.S. law. Notably, this Committee previously 
approved legislation, Mr. Chairman, extending federal 
recognition to the MOWA Band. It is my hope that this Committee 
will do so once again. Federal recognition would allow for the 
MOWA Band to continue to maintain its tribal community and to 
support its citizens.
    I want to thank you on their behalf, Mr. Chairman, for 
letting us all be here today, and for you holding this hearing. 
I hope that you and the Committee will act on this 
expeditiously. Thank you very much.
    The Chairman. Thank you, Senator Shelby, for being here.
    Senator Smith.

                 STATEMENT OF HON. TINA SMITH, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Smith. Thank you, Chair Schatz, and nice to see 
you, Senator Shelby.
    I want to start by thanking you, Chair Schatz, for holding 
this hearing today. I look forward to hearing testimony on my 
Tribal Health Data Improvement Act, which I have introduced 
with Vice Chair Murkowski.
    I am very excited to welcome Dr. Darin Prescott, who is the 
Director of Health and Clinic CEO for the Lower Sioux 
Community, and a board member of the Great Lakes Area Tribal 
Health Board, to share testimony about this bill with the 
Committee. I had the opportunity to visit Lower Sioux last 
summer and to see the great work that you are doing there. It 
is wonderful to welcomed you here to our Committee hearing 
virtually.
    Dr. Prescott is an enrolled member of Lower Sioux, and has 
a background as a nurse, manager, educator and health care 
administrator. In all those roles, he has seen and knows 
firsthand how important data is, how important data sharing is, 
for tribes that are fighting the pandemic and addressing other 
public health issues. So wopila tanka, Dr. Prescott, for 
joining us today. I look forward to hearing your testimony.
    The Chairman. Thank you very much, Senator Smith.
    Mr. Figueroa, please proceed with your testimony.

            STATEMENT OF MARVIN FIGUEROA, DIRECTOR, 
         INTERGOVERNMENTAL AND EXTERNAL AFFAIRS, U.S. 
            DEPARTMENT OF HEALTH AND HUMAN SERVICES

    Mr. Figueroa. Good afternoon, Chair Schatz, Vice Chair 
Murkowski, and members of the Committee. Thank you for the 
opportunity to testify on Senate Bill 1397, the Tribal Health 
Data Improvement Act.
    My name is Marvin Figueroa. I am the Director of the Office 
of Intergovernmental and External Affairs, or IEA, at the U.S. 
Department of Health and Human Services. The Department is 
dedicated to enhancing the health and well-being of every 
person and every community in this Country and is committed to 
affirming the relationship between our Department and tribal 
nations by advancing connections, providing expertise, 
increasing resources, and partnering to improve the health and 
safety of all American Indians and Alaska Natives.
    The COVID-19 pandemic has highlighted longstanding 
disparities in health outcomes in tribal communities. The 
pandemic has also shone a spotlight on the challenges inherent 
in collecting, reporting, and sharing health data among State, 
local, territorial, and tribal governments. The Department 
appreciates the opportunity to discuss these issues and 
highlight HHS efforts to not only enhance tribal access to 
data, but also improve access to care and health outcomes.
    IEA facilitates communication and collaboration between HHS 
and State, local, and tribal governments. In particular, we 
coordinate the Department's strategies to strengthen our 
nation-to-nation relationship with tribal nations and improve 
the multi-level coordination of Health and Human Services' 
programs. Within our broad tribal outreach strategy, IEA 
manages the Secretary's Tribal Advisory Committee, which was 
established in 2010 to seek consensus, exchange views, share 
information, provide advice and recommendations, and facilitate 
any other interaction related to intergovernmental 
responsibilities or administration of HHS programs and 
initiatives.
    This outreach is accomplished through forums, meetings, 
site visits, and conversations between federal officials and 
elected tribal leaders. While the STAC is critical to advising 
the Department on its interactions with tribal nations, the 
Department recognizes that the STAC is no substitute for tribal 
consultation, which the Department is committed to holding on a 
regular and meaningful basis.
    Engaging with tribal leadership and communities has been a 
priority for Secretary Becerra and Department leaders, with the 
goal of building a network of tribal relations and diplomacy 
for decades to come. Recognizing our unique nation-to-nation 
relationship, HHS values the work to advance tribal sovereignty 
and self-determination for federally recognized tribes. 
Ensuring access to quality health and public health data is a 
threshold issue for this vision.
    HHS recognizes the challenges in data collection, sharing, 
and dissemination, especially where tribal health data is 
concerned. The existing framework of legal and policy issues 
around data collection authorities, privacy and 
confidentiality, data ownership and necessary data use 
agreements additionally complicate this data ecosystem. 
Accessible, timely, and quality data is essential for making 
decisions about how to protect and improve the health of tribal 
communities in rural and urban areas.
    The Department appreciates the challenges in this space and 
is working with tribal partners to address them. For example, 
my colleagues at the Centers for Disease Control and Prevention 
are providing support both through funding and technical 
assistance to improve access to public health data and 
modernize data systems and public health capabilities across 
the Country, including more specifically with our tribal 
partners. My written testimony includes other examples of 
ongoing efforts.
    The Tribal Health Data Improvement Act aims to ensure 
Tribal Nations are equipped with public health data to better 
operate public health programs and improve health outcomes 
within their communities. It works to clarify the federal role 
in collection and availability of health data with respect to 
Indian Tribes.
    Moreover, this legislation identifies ways to improve the 
collection and calculation of health statistics with respect to 
Indian tribes, such as requiring the Secretary to release all 
applicable public health data on Tribal Epidemiology Centers 
within 180 days of enactment and requiring the CDC to expand 
and improve their assistance to States with respect to sharing 
data with tribal entities.
    HHS supports the objectives of this legislation, and we are 
grateful that Senator Smith and bipartisan members of this 
Committee have worked to address these important issues.
    The health burden carried by American Indian and Alaska 
Native communities is unacceptable. While we have made strides 
toward improving data collection and sharing during COVID-19, 
there is much more work to do. With these issues in mind, HHS 
remains available to provide technical assistance so that we 
can advance constructive solutions in line with the objectives 
and goals of this Administration.
    I look forward to any questions. Thank you again for the 
opportunity to be in your presence this afternoon.
    [The prepared statement of Mr. Figueroa follows:]

Prepared Statement of Marvin Figueroa, Director, Intergovernmental and 
     External Affairs, U.S. Department of Health and Human Services
    Good afternoon Chair Schatz, Vice Chair Murkowski, and Members of 
the Committee. Thank you for the opportunity to testify on S. 1397, 
Tribal Health Data Improvement Act. I am Marvin Figueroa, the Director 
of Intergovernmental and External Affairs (IEA) at the U.S. Department 
of Health and Human Services (HHS).
    The Department is dedicated to enhancing the health and well-being 
of every person and every community in this country. HHS is committed 
to affirming the relationship between our Department and Tribal Nations 
by advancing connections, providing expertise, increasing resources, 
and partnering to improve the health and safety of all American Indians 
and Alaska Natives (AI/AN). The COVID-19 pandemic has highlighted 
longstanding disparities in health outcomes in Tribal communities. In 
addition, the pandemic has shone a spotlight on the challenges inherent 
in collecting, reporting, and sharing health data among state, local, 
territorial, and Tribal governments.
    The Department appreciates the opportunity to discuss these issues 
and highlight HHS efforts to not only enhance Tribal access to data, 
but also improve access to care and health outcomes.
Engagement with Indian Country
    IEA facilitates communication and collaboration between HHS and 
state, local, and Tribal governments. In particular, we coordinate the 
Department's strategies to strengthen our Nation-to-Nation relationship 
with Tribal Nations and improve the multi-level coordination of Health 
and Human Services' programs.
    Within our broad Tribal outreach strategy, IEA manages the 
Secretary's Tribal Advisory Committee (STAC). Established in 2010, the 
STAC's primary purposes are to seek consensus, exchange views, share 
information, provide advice and recommendations; and facilitate any 
other interaction related to intergovernmental responsibilities or 
administration of HHS programs. This outreach is accomplished through 
forums, meetings, site visits, and conversations between Federal 
officials and elected Tribal leaders. While the STAC is critical to 
advising the Department on it's interactions with Tribal Nations, the 
Department recognizes that the STAC is no substitute for Tribal 
consultation, which the Department is committed to holding on a regular 
and meaningful basis.
    Engaging with Tribal leadership and communities has been a priority 
for Secretary Becerra and Department leaders, with the goal of building 
a network of Tribal relations and diplomacy for decades to come.
    Secretary Becerra has been in his role for almost exactly one year. 
In that time he has made it a priority to meet with and hear from 
Tribal leaders and American Indians and Alaska Natives across the 
country. From his meetings with Tribal Leaders in Washington, to his 
visit to the Seattle Urban Indian Health Board where he learned about 
their ongoing COVID-19 response and how they provide services to 
American Indians and Alaska Natives living in the City, to his visit 
with the Cherokee Nation in Oklahoma listening to the challenges of 
providing health care in rural America. The Secretary and I are 
committed to advancing equity, equality, and opportunity for American 
Indians and Alaska Natives.
    Recognizing our unique nation-to-nation relationship, HHS values 
the work to advance Tribal sovereignty and self-determination for 
federally recognized tribes. Every American Indian and Alaska Native 
should have access to quality and affordable health care, including 
advanced medicine, durable medical and health care related equipment, 
and modern health information technology, and to public health programs 
and services that keep them safe and healthy. HHS strives for flexible, 
nimble, and patient-friendly services through strategic investments and 
advanced technology such telemedicine and secure patient records. 
Ensuring access to quality health and public health data is a threshold 
issue for this vision.
Tribal Health Data-Challenges and Opportunities
    Available data show that Tribal nations have faced a 
disproportionate impact from COVID-19 and other long-standing health 
threats. American Indian and Alaska Native persons in the United States 
experience higher rates of COVID-19-related hospitalization and death 
compared with non-Hispanic White populations. The health disparities 
faced by Tribes extend beyond the COVID-19 pandemic, as AI/AN persons 
have a lower life expectancy, lower quality of life, and are 
disproportionately affected by many chronic conditions. HHS recognizes 
the challenges in data collection, sharing, and dissemination, 
especially where tribal health data are concerned. The existing 
framework of legal and policy issues around data collection 
authorities, privacy and confidentiality, data ownership and necessary 
data use agreements additionally complicate this data ecosystem. 
Accessible, timely, and quality data is essential for making decisions 
about how to protect and improve the health of Tribal communities and 
AI/AN people in nontribal and urban areas.
    The Department appreciates the challenges in this space and is 
working with Tribal partners to address these challenges. For example, 
my colleagues at the Centers for Disease Control and Prevention (CDC) 
are providing support both through funding and technical assistance to 
improve access to public health data, and modernize data systems and 
public health capabilities across the country, including more 
specifically with our Tribal partners. CDC is working directly with 
Tribes, Tribal organizations, and partners to educate data users about 
how to access and analyze public health data, including the best 
available resources with demographic information on AI/AN populations. 
CDC has engaged Tribal Epidemiology Centers (TECs) through the Council 
of State and Territorial Epidemiologists' (CSTE's) Tribal subcommittee 
to share available COVID-19 data and to hear how data sharing efforts 
for COVID-19 and public health data can be improved.
    CDC is also facilitating data improvements among state, local, and 
Tribal jurisdictions. Through CDC's ``National Initiative to Address 
COVID-19 Health Disparities Among Populations at High-Risk and 
Underserved, Including Racial and Ethnic Minority Populations and Rural 
Communities,'' the Arizona state health department is working to 
improve data sharing with Tribal partners. The Arizona Advisory Council 
on Indian Health Care will collaborate with Arizona's federally- 
recognized Tribes to design data collection methodology for pandemic 
reporting, identify best practices and models for tribal data 
collection in response to COVID-19, and identify barriers and missed 
opportunities in response to COVID-19.
    Further, CDC is supporting development of tools to facilitate 
sharing of Tribal data. For example, in November 2021, the Northwest 
Portland Area Indian Health Board announced the launch of NativeDATA, a 
resource supported by CDC that offers practical guidance for Tribes and 
Tribal-serving organizations on obtaining and sharing health data. This 
innovative platform supports data sharing in ways that honor Tribal 
sovereignty, data sovereignty, and public health authority to advance 
the health and healthcare of Native communities.
    From FY 2020 to 2021, CDC provided support to nearly 350 Tribal 
recipients through its ``Supporting Tribal Public Health Capacity in 
Coronavirus Preparedness & Response Grant''. A preliminary summary of 
year 1 activities showed that recipients were investing funding in 
surveillance, epidemiology, and health information technology. Further, 
the report showed that many recipients were conducting data analyses or 
assessments to support the COVID response. Toward longer term capacity 
building, many recipients hired epidemiologists and data analysts using 
this funding.
The Tribal Health Data Improvement Act
    The Tribal Health Data Improvement Act aims to ensure Tribal 
Nations are equipped with public health data to better operate public 
health programs and improve health outcomes within their communities. 
It works to clarify the Federal role in collection and availability of 
health data with respect to Indian Tribes. Moreover, this legislation 
identifies ways to improve the collection and calculation of health 
statistics with respect to Indian Tribes, such as requiring the 
Secretary to release all applicable public health data on Tribal 
Epidemiology Centers within 180 days of enactment and requiring the CDC 
to expand and improve their assistance to states with respect to 
sharing data with Tribal entities.
    HHS supports the objectives of this legislation, and we are 
grateful that Sen. Smith and bipartisan Members of this Committee have 
worked to address these important issues. HHS will continue to work 
with this Committee on efforts to improve data protection and privacy 
provisions in the legislation as it moves forward.
Conclusion
    The health burden carried by AI/AN communities is unacceptable. 
While we have made strides improving data collection and sharing COVID-
19 data, there is much more work to be done and HHS looks forward to 
working with you on legislation with the goal of better equipping 
Tribal nations with the public health data they need to improve health 
outcomes. HHS is committed to working with Tribes and Tribal 
organizations, and state and local health departments to enhance data 
collection not just for COVID-19 but across a wide range of health 
conditions to better inform communities and enable action.
    With these issues in mind, HHS remains available to provide 
technical assistance so that we can advance constructive solutions in 
line with the objectives and goals of this Administration. I look 
forward to any questions you may have.

    Senator Murkowski. [Presiding.] Thank you, Mr. Figueroa.
    Let's turn next to Chairwoman Lee-Gatewood. Welcome.

  STATEMENT OF HON. GWENDENA LEE-GATEWOOD, TRIBAL CHAIRWOMAN, 
   WHITE MOUNTAIN APACHE TRIBE FORT APACHE INDIAN RESERVATION

    Ms. Lee-Gatewood. [Greeting in Native tongue]. Chairman 
Schatz, Vice Chairwoman Murkowski and members of the Committee, 
thank you for the opportunity to testify in support of S. 3168, 
a bill to amend the White Mountain Apache Tribe Water Rights 
Quantification Act of 2010.
    I also want to thank Senator Kelly for championing this 
critical legislation, Senator Sinema for cosponsoring it for 
the White Mountain Apache Tribe.
    My name is Gwendena Lee-Gatewood. I am the Tribal 
Chairwoman of the White Mountain Apache Tribe, located in the 
beautiful White Mountains of Arizona. The headwaters and 
tributaries of the Salt River arise on our reservation and are 
our principal water sources for our people and the greater 
Phoenix metropolitan area. The tribe's current water sources 
and infrastructure have been and continue to be grossly 
inadequate to meet the current demands and needs of our 
reservation communities. We are in urgent need of a long-term 
solution for our drinking water needs.
    Currently, the tribe is served by the Miner Flat Well 
Field. Well production has fallen sharply and is in 
irreversible decline. Over the last decade, well production has 
dropped by 60 percent. The tribe experiences drinking water 
shortages. The quality of the existing water sources threatens 
the health of our people, including the Indian Health Services 
Regional Hospital and State and Bureau of Indian Affairs 
schools. Here is a picture to my left of the groundwater from 
Carrizo with high concentrations of manganese. The only viable 
solution is a replacement of failing groundwater resources with 
surface water from the North Fork of the White River.
    Fortunately, in 2010, Congress enacted the White Mountain 
Apache Tribe Water Rights Quantification Act, which confirmed 
and authorized the tribe's water settlement with the Federal 
Government and Arizona State parties after decades of 
litigation. The cornerstone of the Act is the authorization for 
the design and construction of the White Mountain Apache 
Tribe's Rural Water System, which will provide a long-term and 
reliable supply for current and future generations.
    Recognizing the importance of the Act in rural water 
systems, Congress has previously approved two amendments to the 
Act to address cost overruns and the resulting delays in the 
required environmental review, which are described in more 
detail in my written testimony submitted to the Committee. 
Since the passage of the amendments, we have learned that the 
cost for the rural water system will exceed the cost authorized 
in the underlying act, even factoring in the additional 
flexibility to use previously authorized water-related economic 
development funds for the project.
    The associated engineering issues have also delayed the 
environmental review process, thus requiring the need to extend 
the enforceability date to two years. As work on the design and 
geotechnical study of the proposed dam site for the rural water 
system has taken place, the tribe, together with Reclamation 
and its consultants, have identified additional cost overruns 
beyond what was initially contemplated.
    In 2019, the tribe worked with Reclamation on a new 
drilling program to further define the site characteristics and 
prepare the viability assessment of the Miner Flat Dam, a key 
component of the rural water system. In the course of the work, 
the tribe's consulting engineers altered the design to address 
seepage and stability issues at the dam site, which resulted in 
an increased cost estimate for the project. In October 2021, 
the engineer of record finalized its viability assessment, 
finding the dam viable.
    We continue to work closely with the U.S. Bureau of 
Reclamation, and believe we are close to reaching consensus on 
a number that would address the design issues so that the rural 
water system can be built and the settlement finalized. I 
cannot overstate the importance of our water rights settlement 
in the White Mountain Apache Tribe's rural water system and the 
health and welfare of our people. If this issue is not 
resolved, the completion of the rural water system project will 
be threatened, thereby increasing the ultimate cost to the 
tribe and to the United States and delaying delivery of life-
sustaining drinking water to our reservation communities.
    Consequently, the tribe is seeking a final amendment to 
increase the federal funds authorized to complete the rural 
water system project, to address cost overruns, and extend the 
enforceability date to April 30th, 2025, to allow sufficient 
time for the environmental review associated with the project 
to be completed.
    Thank you again for this opportunity to testify. [Phrase in 
Native tongue]. Thank you.
    [The prepared statement of Ms. Lee-Gatewood follows:]

 Prepared Statement of Hon. Gwendena Lee-Gatewood, Tribal Chairwoman, 
       White Mountain Apache Tribe Fort Apache Indian Reservation
    Chairman Schatz, Vice Chairwoman Murkowski and members of the 
Committee: Thank you for the opportunity to testify in support of 
S.3168--A bill to amend the White Mountain Apache Tribe Water Rights 
Quantification Act of 2010 to modify the enforceability date for 
certain provisions, and for other purposes. Thank you also to Senators 
Kelly and Sinema for sponsoring this legislation.
    My name is Gwendena Lee-Gatewood, and I am the Chairwoman of the 
White Mountain Apache Tribe. We live on the Fort Apache Indian 
Reservation upon aboriginal lands that we have occupied since time 
immemorial. Our Reservation is located about 200 miles Northeast of 
Phoenix in the White Mountain Region of East Central Arizona.
    The Tribe's current water sources and infrastructure have been and 
continue to be grossly inadequate to meet the current demands and needs 
of our Reservation communities. Fortunately, subsequent to our agreeing 
to a quantification of our aboriginal and federally reserved water 
rights in 2009 with various state parties following decades of 
litigation, Congress enacted the White Mountain Apache Tribe Water 
Rights Quantification Act (``Quantification Act'')(P.L. 111-291). The 
cornerstone of that Act is the authorization for the design and 
construction of the White Mountain Apache Tribe Rural Water System (the 
``Rural Water System'' or ``RWS'')(P.L. 111-291), which will provide a 
secure, safe, and dependable water supply for the Tribe and its members 
and ensure a long-term and reliable water supply for the Tribe for 
current and future generations.
    Recognizing the importance of the Act and the RWS Project, Congress 
has previously approved two amendments to the Act to address cost-
overruns and the resulting delays in the required environmental review, 
including: (1) clarification that $78,500,000 (before indexing) in 
federal funds for ``water-related economic development projects'' 
authorized in the Act may be used for the RWS Project (See Pub. L. 115-
227); and (2) a two-year extension of the enforceability date of the 
Act to April 30, 2023, to ensure that the Secretary of the Interior has 
sufficient time to issue the required ROD and publish the relevant 
statement of findings for the RWS Project. (See the FY 2020 
Consolidated Appropriations Act, Section 206 Department of the 
Interior-General Provisions.)
    Unfortunately, since the passage of the above amendments, the Tribe 
has learned that the costs for the RWS will exceed the costs authorized 
in the underlying Act, even when factoring in the additional 
flexibility to use previously authorized water-related economic 
development funds for the project. The associated engineering issues 
have also delayed dam design and the environmental review process, thus 
necessitating the need to extend the enforceability date by two years.
    If this issue is not resolved, the completion of the Rural Water 
System project will be threatened, thereby increasing the ultimate cost 
to the United States and delaying the delivery of life-sustaining 
drinking water to our reservation communities. Consequently, the Tribe 
is seeking a final amendment to: (1) increase the federal funds 
authorized to complete the RWS Project to address cost-overruns; and 
(2) extend the enforceability date to April 30, 2025, to allow 
sufficient time for dam design and the environmental review associated 
with the project to be completed.
Fort Apache Indian Reservation and the Tribe's Reserved Water Rights
    The Tribe holds full beneficial title to 1.66 million acres of 
trust land in the east central highlands of the State of Arizona. The 
Tribe's Fort Apache Indian Reservation was established by Executive 
Order in 1871. We have retained actual, exclusive use and occupancy of 
our aboriginal lands within the boundaries we agreed to, and which were 
later designated by the Executive Orders dated November 9, 1871, and 
December 14, 1872, without exception, reservation, or limitation since 
time immemorial. The Tribe's vested property rights, including its 
aboriginal and other federal reserved rights to the use of water, often 
referred to as Winters Doctrine Water Rights, that underlie, border and 
traverse our lands, have never been extinguished by the United States 
and are prior and paramount to all rights to the use of water in the 
Upper Salt River drainage, the primary tributary in the adjudication of 
the water rights in the Gila River Basin.
    Except for a small portion of the Reservation that drains to the 
Little Colorado River Basin, virtually our entire Reservation drains to 
the Salt River. The headwaters and tributaries of the Salt River arise 
on our Reservation and are the principal sources of water for the Tribe 
and the greater metropolitan Phoenix area. Specifically, 78 percent of 
the water in Theodore Roosevelt Reservoir located north of the Phoenix 
Valley is contributed from our Reservation; at Saguaro Lake reservoir, 
further South, 60 percent of the water is contributed from our 
Reservation; and below the confluence of the Verde River and Salt 
River, near Granite Reef Dam, Scottsdale, 42 percent of the water comes 
from our Reservation. The importance of achieving implementation of our 
2009 Water Rights Quantification Agreement is essential to the well-
being of the White Mountain Apache Tribe and the downstream water users 
in the Phoenix Valley.
White Mountain Apache Tribe Water Rights Quantification Act of 2010
    In 2010, Congress approved the historic White Mountain Apache Tribe 
Water Rights Quantification Act as part of the Claims Resolution Act of 
2010 (P.L. 111-291). The legislation was sponsored by the entire 
Arizona delegation at the time. The Quantification Act resolved the 
Tribe's water-related damage and reserved water rights claims against 
the United States, the State of Arizona, and a number of state parties 
regarding rights in the Little Colorado River and the Gila River (Salt 
River and Tributaries thereto). In consideration for the Tribe waiving 
its water related claims and prior reserved rights, the Act authorized 
funding for the construction of the Rural Water System comprised of a 
dam and reservoir, treatment plant, and 55 miles of pipeline to serve 
virtually every Reservation community. In addition, the Act also 
authorized funding for, among other things: (1) cost-overruns for the 
Rural Water System (Sec. 312(e)) and (2) ``water-related economic 
development projects'' as part of the WMAT Settlement Fund (Sec. 
312(b)).
    The White Mountain Apache Tribe Water Rights Quantification 
Agreement, which was respectfully negotiated amongst all parties, was 
formally approved by the White Mountain Apache Tribe and all parties, 
including the Secretary of the Interior, and subsequently approved by 
the Superior Courts (Apache County and Maricopa County Superior Court) 
of the State of Arizona on December 18, 2014. The White Mountain Apache 
Tribe Water Rights Quantification Settlement Judgment and Decree was 
filed in Maricopa County and Apache County on March 15, 2015. The 
Judgments and Decrees become enforceable on the date that the White 
Mountain Apache Tribe Water Rights Quantification Act becomes 
enforceable with the publication by the Secretary of the Record of 
Decision allowing the construction of the Rural Water System project to 
go forward.
The Tribe's Drinking Water Crisis
    The driving force behind the 2009 water rights settlement and the 
2010 Quantification Act was the long-standing need to provide a 
reliable and safe water supply and delivery system to the members of 
the White Mountain Apache Tribe. The Tribe and Reservation residents 
are in urgent need of a long-term solution for their drinking water 
needs. Currently, the Tribe is served by the Miner Flat Well Field. 
Well production has fallen sharply and is in irreversible decline. Over 
the last decade, well production has fallen by more than 60 percent. A 
small diversion project on the North Fork of the White River was 
constructed several years ago to compensate for the precipitous loss of 
well production, but was only a temporary fix. Drinking water shortages 
remain a chronic problem. The Tribe experiences annual summer drinking 
water shortages, and there is no prospect for groundwater recovery as 
there is little or no groundwater on the Reservation. The quality of 
the existing water sources threatens the health of our membership and 
other Reservation residents, including the Indian Health Service 
Regional Hospital and State and Bureau of Indian Affairs schools. The 
only viable solution is the replacement of failing groundwater 
resources with surface water from the North Fork of the White River.
    Without reservoir storage behind Miner Flat Dam, a feature 
authorized by the Act, the unregulated stream flows of the North Fork 
of the White River, supplemented by a sharply reduced Miner Flat Well 
Field, are together inadequate to meet current, much less future, 
community demands of the White Mountain Apache Tribe in the Greater 
Whiteriver Area, Cedar Creek, Carrizo, and Cibecue, where 95 percent of 
the Reservation population resides. Nor can we maintain a minimum flow 
in the North Fork of the White River. Therefore, Miner Flat Dam is 
necessary to store 8,600 acre-feet of water during runoff periods for 
release and enhancement of the North Fork of the White River to not 
only meet demands of the Reservation Rural Water System, but to 
maintain a minimum flow required for aquatic and riparian habitat 
preservation and enhancement.
    In sum, the Rural Water System will replace the failing groundwater 
well system and enable the Tribe to construct a secure, safe and 
reliable drinking water supply for the current 17,000 White Mountain 
Apache Tribal members and residents living on our Reservation and to 
meet the increasing drinking water needs of the Reservation for a 
future population of nearly 40,000 persons in the decades to come.
Need for Amendment
    Unfortunately, as work on the design and geotechnical study of the 
proposed dam site for the Rural Water System has taken place, the Tribe 
together with Reclamation and its consultants have identified 
additional cost-overruns beyond what was initially contemplated at the 
time Congress passed the first amendment to the Act. These additional 
costs were discovered after the Tribe conducted further review of the 
project with the assistance of HDR, the Engineer of Record (EOR) for 
the WMAT. In 2019, WMAT worked with Reclamation on a new drilling 
program to further define the site characteristics and to prepare the 
Viability Assessment (VA) of the Miner Flat Dam, a key component of the 
RWS. In the course of this work, the Tribe's consulting engineers 
altered the design to address seepage and stability issues at the dam 
site, which resulted in an increased cost estimate for the project.
    We have continued to work closely with the U.S. Bureau of 
Reclamation and believe we are close to reaching consensus to address 
the design issues discussed above so that the RWS can be built and the 
settlement finalized. In October 2021, the VA was finalized and it 
concluded that: (1) the dam is viable with the foundation treatments 
proposed; (2) the dam will meet national dam safety criteria; and (3) 
the dam will effectively regulate the North Fork of the White River for 
the Rural Water System with relatively small and controllable seepage 
losses.
    The upper end of the costs for options in the VA required an 
additional funding amount of approximately $250 million to complete 
HDR's proposal for construction of Miner Flat Dam. The increased 
funding amount also includes the cost for the dam, pipelines, pumping 
stations, water tanks, water treatment plant, diversion to the water 
treatment plant and all other elements of the WMAT RWS. The additional 
funding is for all features of the WMAT RWS and includes construction 
contingencies and ``non-contract'' costs (such as NEPA compliance, 
Clean Water Act compliance, NHPA compliance, project planning, design, 
construction observation, administration of construction contracts with 
builders of the project features awarded contracts in a competitive 
bidding process, and Reclamation oversight, among other costs not 
listed).
    In November 2021, the Bureau of Reclamation asked WMAT to prepare 
an ``addendum'' to the Final VA to address the costs of an additional 
design option that would include an underground concrete wall across 
the full breadth of the valley of the North Fork of the White River as 
deep as the basement complex and to depths of 150 to 350 feet depending 
on location across the Valley. WMAT complied and directed HDR to 
prepare a cost estimate of the option proposed by Reclamation and a 
second less costly option that would provide a more robust treatment of 
the foundation than had been provided in the Final VA to reach common 
ground with Reclamation.
    Reclamation recognized the need to reach a consensus on foundation 
design and accepted a WMAT invitation for a workshop in Denver in late 
February 2022. The workshop helped Reclamation and the EOR agree on a 
foundation treatment option that will address Reclamation's concerns. 
It is my understanding that cost estimates of that option should be 
completed in the next several weeks by HDR and shared with Reclamation 
for review. The Tribe is hopeful that it will reach consensus on a sum 
certain with Reclamation in the very near future that will be close to 
HDR's cost estimate.
    Finally, because of the above delays associated with the RWS, the 
deadline for the enforceability date of the Act also must be extended 
by two years to 2025 so that the dam design and required environmental 
review of the project can be completed. As noted, one of the 
requirements for the Act to become enforceable is the issuance by the 
Department of the Interior of a ROD for the RWS and publication by the 
Secretary of the Interior of a statement of findings in the Federal 
Register authorizing construction. WMAT and Reclamation are working 
cooperatively to ensure steady progress to complete 30 percent design 
of Miner Flat Dam, the critical path to the ROD, ahead of the April 30, 
2025, date for enforceability of the Quantification Act as proposed in 
the amendment.
    Ultimately, the importance of our water rights settlement and the 
WMAT Rural Water System to the health and welfare of our people cannot 
be overstated. As noted in the previous legislative history, reservoir 
storage on the North Fork of the White River is key to the ability of 
my Tribe to use its settled water rights and deliver water to the 
communities on the Reservation. Absent storage we cannot capture 
runoff, prevent its escape from the Reservation, and use it 
beneficially during drier seasons. We must ensure the timely design and 
completion of the RWS by resolving the cost issue now, not later. This 
legislation would clarify that we have adequate funding to complete the 
project and time to complete the dam design and required environmental 
review. If these issues are not resolved, the water settlement and the 
completion of the project will be threatened, which would increase the 
ultimate cost to the United States, delay the delivery of life-
sustaining drinking water to our Reservation communities and the 
membership of the White Mountain Apache Tribe, and bring uncertainty to 
the Tribe and its settling parties in the Gila River Adjudication.

    Senator Murkowski. Thank you, Chairwoman.
    Before we turn to Chairwoman Flores, I understand that 
Senator Kelly is on the line and would like to introductions of 
both of you. I would just like to acknowledge; I have just been 
informed that both Chairwoman Lee-Gatewood and Chairwoman 
Flores are the first women to be the heads of your tribes. 
Congratulations. It is wonderful to have you as part of our 
Committee, and the leadership that you present.
    Senator Kelly?

                 STATEMENT OF HON. MARK KELLY, 
                   U.S. SENATOR FROM ARIZONA

    Senator Kelly. Thank you, Madam Chairwoman.
    I am a little late here, but thank you for the opportunity 
to testify on two bills that I introduced on behalf of the 
Colorado River Indian Tribes and the White Mountain Apache 
Tribe in Arizona.
    In a moment I will get to the two bills. First, I want to 
introduce the two tribal leaders joining us today. Obviously, 
you already heard from Chairwoman Lee-Gatewood. I will 
introduce her as well, after her testimony here.
    Chairwoman Amelia Flores is testifying on behalf of the 
Colorado River Indian Tribes, and as you have already heard 
from Chairwoman Lee-Gatewood, she is testifying on behalf of 
the White Mountain Apache Tribe.
    To both chairwomen, thank you for your leadership and 
support of these bills. The west is dealing with the real-time 
effects of the worst drought in 1,200 years. Let me say that 
again: 1,200 years. Below average snowpack in the upper basin 
of the Colorado River is reducing water availability for 
farmers, for ranchers, for businesses, and for communities 
across seven States in the west.
    The issue is a priority for me, because Arizona is on the 
front lines of this mega-drought. In many instances, tribal 
nations are among the most vulnerable to its effects. At the 
same time, tribes hold significant water rights that can 
position them to lead on water conservation and drought 
management.
    For example, the Gila River Indian Community recently led 
efforts to team up with water users in Arizona, in Nevada, and 
Southern California. Together, they announced the first-ever 
plan to conserve 1 million acre-feet of water in the lower 
Colorado River Basin over the next two years. That water will 
stay in Lake Mead.
    That plan demonstrates the role that tribes can play in 
promoting a secure water future for the west. The Colorado 
River Indian Tribes are located along the banks of the Colorado 
River where they have farmed this land for thousands of years. 
Agriculture is a key part of their economy and their culture.
    In 2005, the Supreme Court quantified their right to nearly 
one-quarter of all Colorado River water allocated in Arizona. 
Today, they farm across 125 square miles of tribal land, using 
an irrigation project that was built mostly by the Bureau of 
Indian Affairs. It also just happens to be one of the oldest 
systems like this in the Nation.
    I have visited the farmland, and I have seen the BIA 
infrastructure that was built a long time ago, and significant 
amounts of water being wasted by a failing flood irrigation 
project in some places, it is not just one place. You can see 
water leaking through hand-dug dirt canals, and we are just 
losing the water.
    Chairman Flores wants to urgently modernize that system. 
But she needs the resources to line canals and install water 
efficient water infrastructure like drip irrigation. There are 
some pilot projects on this already that I have gone out and 
visited that are successful.
    My bill would enable her government to lease a portion of 
the water off-reservation to non-tribal water users for things 
like habitat restoration, water storage, and for all those 
other communities who need it as the drought gets worse. 
Revenue from these transfers could then be reinvested into 
their farming operations for repairs and water efficiency 
upgrades. Then this will pay dividends, they conserve more 
water, they can lease more water, they will have the resources 
to become even more resilient and water efficient.
    This capability would be a new tool in ongoing efforts to 
help manage drought in Arizona. This legislation was developed 
following a series of public meetings organized by the Arizona 
Department of Water Resources. It is backed by local 
governments, it is backed by environmental organizations, and 
many in Arizona's business community.
    Madam Chairwoman, I will include several letters from 
Arizonans who support this bill.
    My other bill would address the drinking water needs of the 
White Mountain Apache Tribe, which is completely, right now is 
completely reliant on a diminishing groundwater source. Twelve 
years ago, Senator Jon Kyle led an effort to secure the water 
rights of the White Mountain Apache Tribe. In exchange for 
waiving their claims to the Salt River, the tribe agreed to 
accept the Federal Government's officer to build a dam and a 
reservoir to store their surface water.
    Unfortunately, engineering complications have led to cost 
overruns and delays in constructing this dam. My legislation 
would extend the deadline for completing the dam and increase 
its authorized funding level.
    The United States Government has an obligation to honor the 
commitment that it made to the White Mountain Apache Tribe. My 
bill would do just that.
    Madam Chairwoman, this concludes my testimony. Thank you 
for the opportunity to speak at today's hearing.
    Senator Murkowski. Thank you, Senator Kelly.
    With that introduction, let's go to Chairman Flores. 
Welcome to the Committee.

  STATEMENT OF HON. AMELIA FLORES, CHAIRWOMAN COLORADO RIVER 
                         INDIAN TRIBES

    Ms. Flores. [Greeting in Native tongue] Amelia Flores. 
[Phrase in Native tongue.]
    Good afternoon, and thank you, Vice Chair, and honorable 
Committee members. I am Amelia Flores, Chairwoman of the 
Colorado River Indian Tribes.
    I am here today to ask for your support and to answer your 
questions about the legislation we propose, S. 3308, the 
Colorado River Indian Tribes Water Resiliency Act. [Phrase in 
Native tongue.] I am Mohave. The Mohave people have always 
lived along the Colorado River and farmed with its waters.
    Today, I want to talk about the river that is our namesake. 
It is in trouble. Our watershed is hotter, dryer and windier. 
This means less rain and more evaporation. Multiple years with 
these conditions have created extremely low amounts of runoff 
for our river.
    In 2007, the water managers at Reclamation implemented a 
plan to cut water deliveries if the amount of water in Lake 
Mead dropped, the shortage guidelines. In 2019, the shortage 
cuts were not projected to be enough to save Lake Mead and we 
have the drought contingency plan, the DCP. In December, we 
learned that even those additional cuts were not enough. We are 
now working to cut even more because forecasts show that the 
balances of water between Lake Mead and Lake Powell is at risk.
    CRIT is doing its part. We have been fallowing productive 
farmlands to leave water in Lake Mead since 2016. We have left 
more than 200,000 acre-feet in the lake, raising it by three 
feet. But without our bill, this is the only way we can help.
    The river needs all the tools that can be made available to 
survive this continuing trend of less and less water. This 
legislation, S. 3308 will provide additional tools.
    The CRIT water is the first and highest priority water on 
the river. The water used by the Arizona metro areas that is 
delivered by the CAP is the lowest priority, and is getting 
cut. But unlike many other tribes in the State, we cannot make 
our water available for deliveries to them until Congress 
allows it.
    We do not know what the future will bring, and we all need 
all the tools possible.
    Let me address some specifics about the legislation and the 
tools it can provide.
    First, authorizing us to lease water will not increase the 
use of water from the river. We can only lease as much water as 
we have stopped using use on our reservation. The river will 
stay whole.
    Second, no new infrastructure is needed to deliver or treat 
this water. There will be no federal dollars needed to 
implement this bill.
    Third, it will expand our ability to help save the life of 
the river. Right now, we cannot make water available for off-
reservation river habitat that is suffering as water levels 
drop. This bill will help us support the native plant and 
endangered fish restoration programs along other stretches of 
the river like we do on our reservation.
    Fourth, and the most important to our people, this 
legislation protects our sovereignty over our water. This river 
is our namesake, it is our life, and if we do not control our 
water, history tells us that others will.
    My tribe has worked with the Department of the Interior, 
the Arizona Department of Water Resources, water users, and 
environmental organizations over the past six years to develop 
and promote this legislation. It was vetted in Arizona through 
two public State-run hearings and a months-long comment period. 
We have overwhelming support.
    Let me close by saying, this is a critical time in the 
Colorado River Basin. We are facing a mega-drought, and Arizona 
is ground zero. This bill helps us save our river, and it helps 
us generate the revenue we need to adapt to the drier climate. 
It also allows us to help our neighbors.
    Senators Kelly, Sinema, my tribe, and many others in 
Arizona, believe this bill will help save the Colorado River. I 
ask for your support.
    [Phrase in Native tongue.] Thank you for this opportunity, 
and I am happy to answer any questions that you may have.
    Thank you
    [The prepared statement of Ms. Flores follows:]

  Prepared Statement of Hon. Amelia Flores, Chairwoman Colorado River 
                             Indian Tribes
    Chairman Schatz, Ranking Member Murkowski, Members of the 
Committee: thank you for the opportunity to supplement the record with 
additional information about S. 3308, the Colorado River Indian Tribes 
Water Resiliency Act.
    As I said in my statement, I am Mohave. The Mohave people have 
always lived along the Colorado River and farmed with its waters. Our 
tribe also includes Chemehuevi, Hopi and Navajo people who were 
colonized on our Reservation by the United States or who came with the 
offer from the United States of farmland. We are located on a 
Reservation first established in 1865 that is on both sides of the 
Colorado River with lands in California and in Arizona.
    This legislation only applies to our water rights for use in 
Arizona.
    I want to provide additional information about the River that is 
the namesake my people, the drought, and how our tribe would use the 
authority in the bill if authorized.

    The Colorado River:

    Almost all the water for the Colorado River originates in the Rocky 
Mountains in the states of the Upper Basin, Wyoming, Colorado, Utah and 
New Mexico. The snow melt runs off into Lake Powell and is delivered 
from Lake Powell to Lake Mead. Our water is released from Lake Mead to 
flow south through several dams and past the intakes for the 
Metropolitan Water District and the Central Arizona Project.
    The diversion point for most of the water that we use on the 
Arizona portion of our reservation is Headgate Rock Dam. The water 
flows into the main canal of the Colorado River Irrigation Project that 
is operated by the Bureau of Indian Affairs.
    In 2007 the water managers at Reclamation implemented a plan to cut 
water deliveries if the amount of water in Lake Mead dropped. This plan 
is called the Colorado River Interim Guidelines for Lower Basin 
Shortages and the Coordinated Operations for Lake Powell and Lake Mead, 
December 2007, more commonly known as the Shortage Guidelines.
    In 2019, as a result of dropping water elevations in Lake Mead, 
shortages were triggered. Stakeholders in the basin, and Congress, put 
in place the Drought Contingency Plan, or DCP. The Lower Basin DCP 
includes voluntary contributions to Lake Mead, above and beyond what 
was called for in the 2007 Shortage Guidelines, from the Lower Basin 
states of Nevada, California and Arizona as well as from the United 
Mexican States.
    In December 2021, we learned that even those additional cuts are 
not enough. We are now working to cut even more because the Reclamation 
August 24 month study predicts that Lake Mead has a chance to drop 
below mean sea level elevation 1030, triggering additional 
consultations under the DCP agreements. Recent Reclamation forecasts 
are now showing that the balance of water between Lake Mead and Lake 
Powell is at risk because of dropping elevations of Lake Powell.
    As I mentioned in my statement and in response to questions, CRIT 
is doing its part. We were among the first in the Basin to leave water 
in Lake Mead through System Conservation and are still doing so today. 
This year, 2022, is the final year of our latest agreement and, when 
complete, we will have left more than 200,000 acre-feet of system 
conservation water in Lake Mead, raising it by 3 feet. The 2022 CRIT 
fallowing plan is shown on the map in Figure 1 and is tabulated in 
Table 1 attached to this testimony. *
---------------------------------------------------------------------------
    * The information referred to has been retained in the Committee 
files.
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    The DCP agreement ends at the end of 2022 and we are in 
negotiations with Reclamation and the CAWCD to leave more water in Lake 
Mead in 2023 and years beyond.
    But without this legislation, S. 3308, this is the only way we can 
help mitigate the decades long drought.
    The River, and the communities and economies that depend on it, 
need all the tools that can be made available to survive this 
continuing trend of less and less water. This legislation, S. 3308 will 
provide additional tools.
    The CRIT water rights are the first and highest priority water 
rights on the Lower Basin of the Colorado River. The water used by the 
Arizona metro areas that is delivered by the CAP is the lowest 
priority, and is being cut this year by a total of 512,000 acre feet 
based on both a Tier 1 Shortage as required by the Shortage Guidelines 
and the DCP agreements But unlike many other tribes in the State who 
have been authorized by Congress to lease their water from the Colorado 
River that is delivered through the CAP, we cannot lease our water or 
make our water available for delivery to other water users until 
Congress allows it.
    Congress must authorize tribal leasing of trust assets because of 
the restrictions in the Indian Trade and Intercourse Act that dates 
back to the 1790's (25 USC 177). Congress has authorized tribes to 
lease water water in at least 24 of the water settlements that have 
been approved. The CRIT water rights are decreed water rights that were 
determined by the United States Supreme Court in the case of Arizona v. 
California in 1963 (373 U.S. 546, 1963) and therefore have never 
benefited from Congressional support.
    I want to reiterate and provide more detail on some of the key 
points I made in my testimony.
    First, authorizing us to lease water will not increase the use of 
water from the River. We can only lease as much water as we stop using 
use on our reservation-usually by fallowing farmland. The River will 
stay whole, as it does with our system conservation water.
    The legislation requires that water included in a lease, exchange 
or storage agreement come from a reduction in our consumptive use on 
the Arizona portion of our reservation. This is currently done by 
fallowing productive farmland as we are doing for the creation of 
system conservation. Consumptive Use is defined in Section 3 of S. 3308 
which requires that we have farmed the parcels for four of the most 
recent five years before fallowing to establish a quantifiable use on 
the reservation.
    Section 4 of S. 3308 states that ``the CRIT is authorized to . 
lease or exchange a portion of the consumptive use for a use off the 
Reservation.'' This requirement is repeated in Section 5 for off-
reservation storage agreements.
    This is the same methodology that we developed beginning in 2016 
for the Pilot System Conservation Program and has been measured and 
verified by Reclamation, the states, and the major water users each 
year since then. It does not increase water taken from the River.
    There seems to be some concern that CRIT will ``remove its System 
Conservation and lease that water.'' This concern demonstrates a 
failure to grasp the core concept of both the legislation and System 
Conservation.
    System Conservation is, by definition, water that is left in the 
River system. Therefore, under the terms of the legislation before the 
committee, CRIT is not able to remove this water and lease it.
    Second, no new infrastructure is needed to deliver or treat this 
water, so it is unlikely to have a significant budgetary score. Water 
we lease may be delivered through the CAP to water users and storage 
facilities. In 2017 CRIT participated as a stakeholder in the 
development of the CAP System Use Agreement and Standard Form Wheeling 
Agreement; with others, we ensured that CAP will be able to wheel non-
project water, such as CRIT's, through the canal.
    In addition, the CRIT water, unlike recovered groundwater, is the 
same as the CAP project water. It may be used in the same way as CAP 
water that is being shorted, without any changes to water treatment 
facilities.
    Third, the leasing and exchange authority in S. 3308 will expand 
our ability to help save the life of the River. Right now, we cannot 
make water available for off-reservation river habitat that is 
suffering as water levels drop. This bill will help us support the 
native plant and endangered fish restoration programs along other 
stretches of the River. We have seen the benefit of this from a recent 
lease agreement between the Jicarilla Apache Nation and the New Mexico 
Interstate Stream Commission facilitated by the Nature Conservancy, to 
provide water for habitat in the Rio Grande.
    We know that with less water in the River, there is likely to be 
less habitat. We are uniquely situated on the River to make this water 
available to the United States Fish and Wildlife Service and others 
along the banks of the River including under the Multi-Species 
Conservation Program.
    Fourth, and most important to our people, this legislation protects 
our sovereignty over our water. This River is our namesake, it is our 
life, and if we do not control our water, history tells us that others 
will.
    We know that others will take what is ours if we do not act.
    Shortly after our reservation was created gold was discovered on 
the southern part of our Reservation. The United States promptly turned 
around and took those lands from us. It was not until 2005 that 
Congress returned this land to us, but even today we still have limited 
control over it. We cannot use it for gaming and we cannot claim water 
rights for this land.
    We have never had sovereignty over our water rights. We want to 
exercise our sovereign rights to make our water available to save the 
River and to provide economic stability for our government.
    Fifth, and finally, this legislation is the only way that CRIT can 
help other tribes in the Basin.
    CRIT System Conservation does not help any of the 30 tribes in the 
Colorado River Basin directly. The reality is that aridification and 
drought remove far more water than CRIT could ever leave in Lake Mead.
    The authority to move our water off the reservation will allow us 
to work on a government-to-government basis with those tribal nations 
that lose water as a result of the drought. Since time immemorial the 
Mojave people have travelled east to trade with our O'odham and Apache 
neighbors; this legislation respects that tradition by allowing us to 
continue to work with our sister tribes. If given the authority, I know 
that our Council will want to help.
    We are often asked what we would use the money from water leasing 
for. The final decisions about tribal financial resources are for each 
tribal council to make. I can tell you today that we first must replace 
the income lost from farming the lands that are fallowed and we must 
pay the full costs to the BIA for the operation and maintenance of the 
irrigation project for each acre that is fallowed. We must also reserve 
the money to rehabilitate and replant the fallowed land.
    We are also expanding the use of water conserving delivery systems, 
such as drip irrigation and sprinklers. This is an expensive process 
and we are proud to partner with Reclamation through WaterSMART grants, 
and with CAWCD. Uniquely, we are working with NGO's such as the 
Bonneville Environmental Foundation (B-E-F) and corporate donors to pay 
the cost share for grants--this expands the amount of work we can do 
each year on our limited government budget.
    In addition, we suffered tremendous loss from the pandemic and our 
economy will take many years to recover. We will use any increase in 
revenue from water leasing to replenish our tribal budget for 
governmental services.
    And finally, we are a rural tribe and have never had the financial 
resources to provide for our people the way other tribes near metro 
areas and with water leasing authority can do. Our elders need 
additional programs; our Headstart children attend school in a building 
more than 90 years old; our youth need supplemental programs for their 
education; we have a severe housing shortage and we need a new well to 
supply our domestic water system. These are just a few of the many 
needs of our people.
    This legislation, S. 3308 has been shared with and reviewed by the 
representatives of each of the seven basin states, at conferences 
throughout the basin, at public meetings and we have considered all 
comments we have received and have answered all questions. This has 
been a thorough and transparent process leading up to this hearing 
today.
    My tribe, the Colorado River Indian Tribes, has worked with the 
Department of the Interior, the Arizona Department of Water Resources, 
water users, and environmental organizations extensively and regularly 
over the last six years to develop and promote this legislation and to 
negotiate the two agreements required by S. 3308. A draft was made 
available to the public by the Arizona Department of Water Resources 
and we voluntarily participated in two State-run public meetings. After 
a 30-day comment period we again met with the representatives of the 
United States, the Arizona Department of Water Resources, the CAWCD 
staff and major stakeholders to address their comments in what then 
became the bill before you today, S. 3308. There is overwhelming 
support for this bill.
    Like in my oral testimony, I want to close by saying that this is a 
critical time in the Colorado River Basin. We are facing a mega-
drought, and Arizona is Ground Zero. This bill, S. 3308 helps us save 
our River, and it helps us generate the revenue we need to adapt our 
reservation to the drier climate. It also allows us to help our 
neighbors along the River and farther away in Arizona. Senators Kelly 
and Sinema, along with my tribe, and the State of Arizona and many 
other stakeholders, believe this bill will help get us through a drier 
future in the Colorado Basin. I ask for your support.

    The Chairman. [Presiding.] Thank you very much.
    We will now recognize the Honorable Harry Pickernell, Sr., 
the Chairman of the Confederated Tribes of the Chehalis 
Reservation, Oakville, Washington.

STATEMENT OF HON. HARRY PICKERNELL, SR., CHAIRMAN, CONFEDERATED 
               TRIBES OF THE CHEHALIS RESERVATION

    Mr. Pickernell. Good afternoon, Chairman Schatz, Vice Chair 
Murkowski, and members of the Committee. My name is Harry 
Pickernell, Chairman of the Confederated Tribes of the Chehalis 
Reservation.
    I am testifying today in support of S. 3773. This bill 
would amend the Long-Term Leasing Act to add the Chehalis Tribe 
to the list of 59 other Indian tribes that are able to enter 
into leases with third parties for terms of up to 99 years.
    The Chehalis Reservation was created by Executive Order in 
1864, and is located between the confluence of the Chehalis 
River and the Black River. Much of the tribe's 4,800-acre land 
base is in flood plain, and the tribe has very little land 
suitable for economic development.
    Southwest Washington State has long been an economically 
depressed area, lacking businesses and jobs for tribal members 
and non-Indians alike. The Chehalis Tribe operates a casino, 
but is always looking for ways to diversify its economic base 
to continue supporting its education, health, housing, safety, 
and other programs for its members. For example, in 2020, the 
Chehalis Tribe opened Talking Cedar, a destination restaurant 
and brewery that is also the first-ever legal distillery built 
in Indian Country.
    This Committee and the U.S. Senate assisted in making the 
Talking Cedar project a reality when in 2018, Congress repealed 
the 1834 law that prohibited constructing distilleries in 
Indian Country. The repeal of that 19th century law allowed the 
Chehalis Tribe to begin construction on the distillery, which 
was completed in 2020. Talking Cedar has been a tremendous 
success, and is the largest craft distillery west of the 
Mississippi.
    Today, we ask the Committee to again assist the Tribe in 
its efforts to diversify its economy. The Long-Term Leasing Act 
limits the terms of surface leases of tribal trust land to an 
initial 25-year term with a 25-year extension, for a total of 
50 years. Since the enactment of the Long-Term Leasing Act in 
1955, Congress has amended the law and authorized the Secretary 
to approve leases of up to 99 years for 59 Indian tribes. S. 
3773 would simply add the Chehalis Tribe to that list and 
authorize the tribe to execute leases with terms of up to 99 
years.
    The tribe is currently making improvements on two parcels 
of tribal trust land that are located on major transportation 
routes on Interstate 5 and State Highway 12. Both parcels have 
adjacent access to a railroad and would be very suitable for 
warehouse operations.
    The tribe has received proposals for developing multiple 
warehouse facilities on these parcels to serve supply chain 
needs between the cities of Seattle, Tacoma, Olympia, and 
Portland. All these proposals, however, would require the tribe 
to be able to execute leases for up to 99 years.
    In 2008, the tribe was able to successfully develop the 
first Great Wolf Lodge water park on an Indian reservation 
under the current 50-year leasing term limit. The financing and 
economic landscape in 2022, however, makes working within that 
50-year term no longer viable for larger scale construction 
projects. S. 3773 addresses the Chehalis Tribe's immediate need 
for these development opportunities by adding the tribe's name 
to the list of tribes in the Long-Term Leasing Act with 99-year 
lease authority.
    The tribe looks forward to working with the Committee to 
move this bill forward. The tribe appreciate the Committee's 
scheduling this hearing, and urges full consideration and 
passage of S. 3773.
    This concludes my testimony, and I would be happy to answer 
any questions when appropriate.
    [The prepared statement of Mr. Pickernell follows:]
    The Chairman. Thank you very much.

      Prepared Statement of Hon. Harry Pickernell, Sr., Chairman, 
            Confederated Tribes of the Chehalis Reservation
    Thank you, Chairman Schatz and Vice Chair Murkowski, for holding 
this legislative hearing on S.3773, a bill to authorize the leases of 
up to 99 years for land held in trust for the Confederated Tribes of 
the Chehalis Reservation.
    My name is Harry Pickernell, Sr., and I am the Chairman of the 
Confederated Tribes of the Chehalis Reservation (the ``Tribe''). 
Senator Maria Cantwell (D-WA), together with Senator Patty Murray (D-
WA), introduced S. 3773 on March 8, 2022.
    The bill would amend the Long-Term Leasing Act, 25 U.S.C.  415, 
which authorizes the Secretary of the Interior to approve leases of 
surface lands between Indian tribes and third parties. Section 415, 
which was enacted in 1955, authorizes the Secretary to approve leases 
with terms of up to 25 years with an option to renew for an additional 
25 years, for a total of 50 years.
    Since Section 415 was first enacted into law in 1955, many tribes 
have required the ability to enter into leases with terms longer than 
50 years to attract outside investment to their tribal lands. Such 
authority has required an amendment to Section 415 to add the name of 
the Indian tribe to the list of what is currently 59 Indian tribes for 
which the Secretary may approve leases with terms of up to 99 years.
    The Tribe's economic development activities funds its government 
programs and helps to diversify its economic interests during trying 
times, such as the ongoing COVID-19 pandemic. Today, the Tribe is 
interested in developing American supply chain infrastructure, by 
making improvements to an existing assemblage of land suitable for a 
warehouse facility located on the Tribe's trust land. The improvements 
would secure a lease of the proposed facility with an outside entity. 
The location of the Tribe's land base is unique in that the Tribe's two 
large assemblages of Reservation trust land are located on major 
transportation routes, providing a key location for a warehouse 
facility. One area is next to U.S. Interstate 5, and the second area is 
next to State Highway 12. Both areas of Reservation trust land have 
adjacent access to a railroad.
    For this project, the Tribe has received two Letter of Intent 
proposals for developing the multiple warehouse facilities to serve 
supply chain needs between the cities of Seattle, Tacoma, Olympia, and 
Portland. The Tribe expects additional proposals to be submitted to 
compete for selection. All these proposals would require the ability to 
execute leases of up to 99 years.
    In 2008, the Tribe was able to successfully develop the first Great 
Wolf Lodge waterpark on an Indian reservation under the current 50-year 
leasing term limit. The financing and economic landscape in 2022, 
however, makes working within that 50-year term no longer viable for 
larger scale construction projects. To address the immediate need for 
these development opportunities, an amendment is needed to include 
``the Confederated Tribes of the Chehalis Reservation'' to the list of 
tribes in Section 415. The Tribe looks forward to working with the 
Committee on swiftly moving this legislation forward.
    If enacted into law, S. 3773 would simply authorize the Secretary 
to approve surface leases of land held in trust for the Tribe with 
terms of up to 99 years. The Secretary's approval process under the 
existing regulations that govern review and approval of surface leases 
remains unchanged. Similarly, authorizing the Secretary to approve 
leases with terms of up to 99 years has no effect on gaming. Whether or 
not an Indian tribe may conduct gaming on a particular parcel of land 
is governed by the Indian Gaming Regulatory Act, not Section 415. The 
only change that would be effectuated by S. 3773 would be to authorize 
a longer lease term for the Tribe.
    The Tribe notes that the path for Indian tribes to obtain the 
ability to have leases with 99-year terms approved by the Secretary has 
involved Congress adding the tribes to Section 415 on a case-by-case 
basis. In the modern era of self-determination, however, the Tribe 
believes that all tribes should have the ability to enter in 99-year 
leases. Because of time constraints with the Tribe's pending projects, 
the Tribe asks that the Committee swiftly move S. 3773, as introduced, 
for full Senate consideration to ensure that these opportunities are 
not lost.
    Going forward, however, the Committee should consider amending 
Section 415 to authorize all tribes to enter leases with third parties 
with terms of up to 99 years. This would save those tribes that need 
the authority to enter into 99-year leases the trouble of expending 
resources to secure enactment of what are truly one-off technical 
amendments.
    I thank the Committee for allowing me to provide testimony on S. 
3773 and look forward to answering any questions.

    We will now recognize the Honorable Lebaron Byrd, the Chief 
of the MOWA Band of Choctaw Indians, Mount Vernon, Alabama. 
Welcome.

  STATEMENT OF HON. LEBARON BYRD, CHIEF, MOWA BAND OF CHOCTAW 
                            INDIANS

    Mr. Byrd. Chairman Schatz, Vice Chair Murkowski, members of 
the Committee, thank you for the opportunity today to testify 
on behalf of my tribe. I also must thank Senator Shelby for his 
longstanding friendship and support of our people and our quest 
for full federal recognition.
    Senator Shelby's introduction of S. 3443, the MOWA Band of 
Choctaw Indians Recognition Act, is his latest effort on our 
behalf to provide federal recognition to the MOWA Band. For 
over four decades, the MOWA Band has sought federal recognition 
to overturn both historic and modern injustices to our 
communities.
    Today, we are asking this Committee to support Senator 
Shelby's effort to finally recognize the MOWA Band as a member 
of the federal family of Indian nations. We would honor that 
privilege.
    The MOWA Band of Choctaw Indians are descendants of the 
Choctaw Nation that stayed in our homelands after Indian 
Removal, despite the fact that very few received the Indian 
homesteads promised by the Treaty of Dancing Rabbit Creek. We 
kept our communities together and supported each other, 
becoming identifiable Indian enclaves, separated from 
surrounding White and Black communities by our genetic origin, 
social and cultural ties, and political leadership.
    Our ancestors wisely required ownership of lands centered 
around our homeland of today, and built homes, churches, and 
schools on Indian-owned property. Churches and schools built 
and supported by Methodist, Baptist, and Catholic missionaries 
became central to both the identity and survival of the MOWA 
Band.
    Until federal court cases of the 1960s mandated 
integration, a three-way racially segregated education system, 
White, Black, and other, existed in the MOWA Choctaw community. 
I am a graduate of one of those other schools, and I have made 
it my life's work to ensure our young people have better 
opportunities in education.
    We live in the same distinct Indian enclave in southwest 
Alabama, an area approximately 20 miles north to south, and 10 
miles east to west. Here we provide government and community 
services to our citizens, including community policing, legal 
aid, housing, and medical services. We have begun restoring our 
community's cultural traditions, and have a nationally known 
annual powwow.
    The tribe has been recognized by the State of Alabama since 
1979 by federal agencies such as HUD and HHS. We are part of 
the National Congress of American Indians, and recognized by 
other federally recognized tribes, church organizations, and 
notable scholars. Sadly, the Department of the Interior is the 
only major federal agency that does not recognize us as an 
Indian tribe.
    Our petition was among the first introduced in 1978. By the 
time our petition moved through the queue, the Bureau of 
Affairs recognition process was already being denounced as 
broken. Given the summary denial of our petition, I must agree 
with that criticism.
    In 1997, the Department of the Interior denied us a summary 
review process that focused exclusively on the scarcity of 
federal records listing MOWA ancestors dating from the 1830s 
removal period or earlier. Federal records or lists of names 
did not include the MOWA Choctaw tribal members, like many 
others. In fact, the color choices on the 1850 census were 
White, Black, and Mulatto.
    I want to make it clear: the malfeasance of federal agents 
in the 19th century by not fulfilling their federal treaty 
responsibility provided the rationale for federal agents in the 
20th century to deny the MOWA federal recognition. Changes made 
in 2014 to regulations at 25 C.F.R. Part 83 would make the MOWA 
Choctaw a strong petitioner for full review. However, as there 
is no reconsideration for the 1997 denial, the only avenue open 
to the MOWA is recognition by the United States Congress.
    Federal recognition by act of Congress is longstanding, and 
often used to exercise the plenary power of the Congress. It 
was most recently exercised to recognize tribes in Virginia and 
Montana during the 115th and 116th Congresses, including a 
tribe that had its petition denied by Interior. We humbly ask 
that this Committee support the exercise of that power to 
recognize the MOWA Band of Choctaw Indians.
    Thank you for the opportunity to testify today on behalf of 
my tribe. I stand ready to answer any questions the Committee 
may have for me.
    [The prepared statement of Mr. Byrd follows:]

 Prepared Statement of Hon. Lebaron Byrd, Chief, Mowa Band of Choctaw 
                                Indians
    Chairman Schatz, Vice Chair Murkowski, Members of the Committee, my 
name is Lebaron Byrd and I am the elected Chief of the MOWA Band of 
Choctaw Indians. Thank you for the opportunity to testify today for my 
tribe. On behalf of the MOWA Band, I also must thank Senator Shelby for 
his long-standing friendship and support of our people and our quest 
for full federal recognition.
    Sen. Shelby's introduction of S. 3443, the MOWA Band of Choctaw 
Indians Recognition Act, is his latest effort on our behalf to provide 
federal recognition to the MOWA Band allowing us to join the family of 
federally recognized Indian tribes that has been a part of the United 
States since its founding.
    For over four decades the MOWA Band has sought federal recognition 
to overturn both historic and modern injustices to our communities. 
Today we are asking this Committee support Senator Shelby's effort to 
finally recognize the MOWA Band of Choctaw Indians as member of the 
federal family of Indian nations.
Who are the MOWA Band of Choctaw
    The MOWA Band has been part of United States history since its 
earliest days. Initially part of the greater Choctaw Nation that 
entered into treaties with the United States, the MOWA are a descendant 
community of the Choctaw Nation that stayed in our homelands after 
Indian Removal policies took most of the Choctaw people to what is now 
Oklahoma. Since that time, we have lived in, worked in, shed blood for, 
and contributed socially and culturally to our country and the state of 
Alabama.
    In the Treaty of Dancing Rabbit Creek, the federal government 
promised our ancestors the right to stay in our homeland and receive 
federal homesteads or allotments of land. Thousands of Choctaws 
remained in Mississippi and Alabama, attempting, often unsuccessfully, 
to have the federal government protect their rights under the treaty. 
While many later became members of the federally recognized Mississippi 
Band of Choctaw Indians, there is clear historical proof that hundreds 
of Choctaws continued to reside in Mobile and surrounding areas well 
into the 1850s. Very few received the Indian homesteads promised them 
by the Treaty because the federal agents charged with that 
responsibility refused to register the names of our ancestors who asked 
for lands. Our ancestors, most of whom spoke no English, were dependent 
upon these federal agents to record their names and provide them 
promised allotments of lands.
    When the federal government broke its promises, our ancestors were 
left to fend for themselves. This they did by keeping their community 
together and supporting each other. By the Civil War era, the MOWA 
Choctaw people had become an identifiable Indian enclave, separated 
from surrounding white and black communities by our genetic origins, 
social and cultural ties, and political leadership.
How Did the MOWA Band Survive?
    Following removal of the Choctaw Nation in the 1830s, the MOWA Band 
continued to occupy the frontier territory around and north of Mobile, 
and post-Civil War, clearly occupied their current and more 
definitively bounded homeland in Mobile and Washington Counties. In 
doing so we remained a distinct, Indian enclave.
    Our ancestors also wisely worked to recover some of our traditional 
lands. Without the benefit of the Treaty rights promised, they 
gradually acquired ownership of land centered around our homeland of 
today. In this manner they built the foundation upon which our 
community has survived. We have been able to build homes, churches and 
schools--all on Indian owned land, even if not ``federal trust land.''
    In fact, all-Indian churches and schools became central to both the 
identity and survival of the MOWA Band from the late 19th Century 
through most of the 20th Century. Of course, this is not unique to the 
MOWA community. Most non-federally recognized indigenous groups in the 
Southeast (many of whom secured federal recognition after the BIA 
established its acknowledgment regulations in 1978) were anchored by 
Indian churches. In the MOWA territory, several all-Indian churches 
date to the mid-nineteenth century, and several all-Indian schools were 
created in the late-nineteenth century as part of the development of 
segregated public school systems. Until federal court cases of the 
1960s mandated integration, a three-way racially segregated educational 
system was established in the MOWA Choctaw homeland.
The MOWA Band Today
    The MOWA Band today continue to comprise the same distinct Indian 
enclave that remained in Alabama. Currently our homeland constitutes an 
area approximately twenty miles north to south and ten miles east to 
west. Within this territory, we provide government and community 
services to our citizens, including community policing, legal aid, 
housing, and medical services.
    Like our sister Choctaw tribes, we have moved away from our 
traditional leadership structure to adopt a more modern democratically 
elected government, with a written constitution and formal membership 
criteria. In addition to community services programs, we have begun 
restoring our community's cultural traditions by establishing language 
and history programs. A group of our women leaders organized a powwow 
that has become a nationally known annual powwow with dancers from 
across Indian country.
    The Tribe has been recognized by the State of Alabama since 1979, 
and by federal agencies such as HUD and HHS. The National Congress of 
American Indians, other federally recognized tribes, and notable 
scholars have identified the MOWA Band as a surviving tribal community 
in the Southeastern United States. Renowned native legal experts such 
as Vine Deloria, Jr., author of Custer Died for Your Sins: An Indian 
Manifesto, former Executive Director of the NCAI, and political science 
professor, stated that the MOWA Band was a surviving tribal group.
    Sadly, the Department of the Interior is the only major federal 
agency that does not recognize us as an Indian tribe.
MOWA Recognition Efforts
    Federal recognition is very important to the MOWA people. 
Recognizing our sovereignty as a tribe is not just symbolic recognition 
of our struggle to survive in our homeland after the vast majority of 
our brothers and sisters were removed to Oklahoma. It is crucial to our 
self-determination as an Indian tribe, and to our continued ability to 
take care of our people. The federal tribal programs that provide basic 
support to tribal governments require federal recognition. Our 
continuing efforts to restore language, culture and history depend on 
that recognition for long term support. The medical care, education, 
and housing programs that tribal communities like ours depend on must 
have the support of the federal government.
    When the Department of the Interior first promulgated Federal 
recognition regulations in 1978, we were among the first tribes to 
submit a petition. However, by the time our petition moved through the 
queue the Bureau of Indian Affairs recognition process was already 
being denounced as ``broken.'' Given the summary denial of our 
petition, I must agree with that criticism.
    In 1997 the Department of the Interior denied the MOWA Band's 
petition for acknowledgement through a summary review process, that 
focused exclusively on the scarcity of federal records listing MOWA 
ancestors dating from 1830s removal period or earlier. They did this 
despite their knowledge that the MOWA Band, like many tribal 
communities remaining in the Southeast after Removal, suffered from a 
lack of federal documentation directly because of the unwillingness of 
federal agents in the 1800s to fulfill their responsibilities under 
treaties. They did this despite knowing that there were virtually no 
other federal records or lists of names created because the MOWA Band, 
like many others east of the Mississippi, were not recognized as a 
federal responsibility until the late 20th Century.
    I want to make this point clear: the malfeasance of federal agents 
in the 19th century, in not fulfilling their federal treaty 
responsibilities, provided the rationale for federal agents in the 20th 
century to deny the MOWA tribe federal recognition.
    Unfortunately, the OFA regulations provide no opportunity for 
reconsideration, even if regulations are revised in a manner that would 
significantly affect our petition. Therefore, the only avenue open to 
the MOWA Band now is recognition through legislation by the United 
States Congress.
    This summary denial sought to delegitimize our history and our 
ancestry. We are determined to not let that injustice stand any longer.
Changes in Federal Recognition Policy
    While it doesn't provide an opportunity for the MOWA Band, it is 
significant that, since denial of our petition, the Department of the 
Interior has fundamentally changed the criteria necessary for 
recognition through its regulatory process. Among the most important 
changes made in 2014 to the regulations at 25 C.F.R. Part 83, is the 
date for recognition of existence of a tribal entity. That important 
criteria was amended from a date of ``time of first contact'' to the 
year 1900.
    For instance, this change would make relevant the United States 
Census beginning in 1910. That census was the first that lists MOWA 
Band ancestors as being Indian. We believe this change in Departmental 
regulations would make the MOWA Band a strong petitioner for a full 
review. However, as there is no reconsideration after the 1997 denial, 
Congressional action is needed to recognize the MOWA Band.
Congress has the Authority to Recognize the MOWA Band
    Federal recognition by an act of Congress is a long-standing and 
often used exercise of the Plenary Power of the Congress. It was most 
recently exercised to recognize tribes in Virginia and Montana during 
the 115th and 116th Congresses, including a tribe that had its petition 
denied by Interior. We humbly ask that this Committee support the 
exercise of that power to recognize the MOWA Band of Choctaw Indians.
Conclusion
    Thank you for the opportunity to testify today on behalf of my 
tribe. I stand ready to answer any questions the Committee may have for 
me.

    The Chairman. Thank you very much, Chief Byrd.
    Finally, we have Dr. Darin Prescott, the Director and 
Clinic CEO of the Lower Sioux Indian Community and Great Lakes 
Area Tribal Health Board in Morton, Minnesota.

 STATEMENT OF DARIN M. PRESCOTT, HEALTH AND CLINIC CEO, LOWER 
 SIOUX INDIAN COMMUNITY/BOARD MEMBER, GREAT LAKES AREA TRIBAL 
                          HEALTH BOARD

    Dr. Prescott. Good afternoon. Hahanna Waste', good day, 
everybody. Chair Schatz, Vice Chair Murkowski, and members of 
the Committee, I am Darin Prescott, enrolled citizen of the 
Lower Sioux Indian Community. Currently, I am the Health and 
Clinic CEO and board member of the Great Lakes Area Tribal 
Health Board.
    I want to thank Senators Smith and Murkowski for 
introducing Senate Bill 1397. The bill recognizes tribal 
sovereignty as well as the need for data-driven decisionmaking 
among tribes. The COVID-19 pandemic has taught us that data 
sharing is imperative to make decisions and create policies 
that protect the lives of American Indians and Alaska Natives.
    Traditionally, tribes have been data-driven in their 
planning, more so in a qualitative way. Our survival depended 
on it historically, as much as our continued survival does 
today. There are stories of estimating seasonal counts of 
bison, deer, and other game populations, and determining how 
many could be taken for survival while maintaining the 
population for future generations of the game. The corn that 
grew the strongest was kept for seed the following seasons. 
These stories and practices were passed down, tying qualitative 
to quantitative data.
    The importance of data is well known by tribes. The need 
for meaningful data is oftentimes challenging for tribes to 
obtain. Much of the data on tribal affiliation reported through 
the U.S. and State governments is done on a self-reporting 
basis of tribal affiliation. The data collection is typically 
done in response to a need for data on a particular 
utilization. Our tribal services collect data and tribal 
enrolment and affiliation because we have to.
    In my previous work in the private sector, the impetus for 
a patient to identify as a tribal citizen relied solely on the 
patient. Even when there are hard stops implemented in 
electronic registration systems, oftentimes an assumption is 
made based on appearance or other presenting information, 
either classifying as Caucasian or multi-race, which only 
further adds to the erasure of indigenous people.
    To further complicate data collection efforts, American 
Indian and Alaska Native citizens may not identify their tribal 
affiliation due to fear of discrimination, delayed treatment, 
or a lesser level of care.
    Senate Bill 1397 has an opportunity to further acknowledge 
protection, relevance and obligation of meaningful data to 
tribal citizens from the U.S. Government. It is imperative that 
data sharing agreements have more intentional collaboration 
with tribes on birth and death certificate accuracy. A 2017 
article identified that the inaccuracy rate of American Indian 
and Alaska Native death certificates was close to 50 percent. 
While there are multiple processing and processes in place for 
death certificates, there is no specific check and balance for 
tribal affiliations.
    What I have experienced over the past eight years in my 
journey from the private health sector to the tribal health 
sector is more of a parental approach that is taken by federal 
and State governments over tribes when it comes to data. I 
recall in 2021, this was just before the COVID-19 vaccines were 
released, in a State-Tribal health director meeting, tribal 
health directors were very pointedly reminded that we needed to 
report all our data for administration to make sure we were 
indeed administering the vaccines. I oftentimes wonder if 
commercial pharmacies, health systems, and local public health 
were equally as scrutinized.
    If the pandemic has taught us anything, it has taught us 
the need for data in real time. As Senator Murkowski mentioned, 
tribal epidemiology centers were denied access to CDC data on 
tribes, which could have expedited our public health response.
    I want to close with a positive example of what successful 
data sharing agreements can look like. The Minnesota Department 
of Health has recently established an Office of American Indian 
Health. One of the Office's current objectives is to develop 
infectious disease data sharing agreements with all 11 
Minnesota tribes. Lower Sioux Indian Community is currently 
working on our agreement language.
    I know there are other examples of successful data sharing 
agreements within other States. So this can be done if it is 
approached in the right way with each individual tribe.
    I implore you to support this bill as a pathway to honor 
tribal sovereignty and build tribal, State and federal 
relations.
    [Phrase in Native tongue.] Thank you.
    [The prepared statement of Dr. Prescott follows:]

 Prepared Statement of Darin M. Prescott, Health and Clinic CEO, Lower 
  Sioux Indian Community/Board Member, Great Lakes Area Tribal Health 
                                 Board
    Hahanna Waste' (good day), Chair Schatz, Vice-Chairman Murkowski, 
and Members of the Committee. Thank you for the opportunity to speak to 
you about ``Tribal Health Data Improvement Act of 2021''--S. 1397. I am 
Dr. Darin Prescott; an enrolled citizen of the Lower Sioux Indian 
Community or, Cansayapi' (where they paint the trees red), in Southwest 
Minnesota. I am the Health & Clinic CEO of the Lower Sioux Indian 
Community and a Board member of the Great Lakes Area Tribal Health 
Board (GLATHB). I am here today with the support of both, the Lower 
Sioux Indian Community and the Great Lakes Area Tribal Health Board. I 
am an advanced-degree registered nurse and here today speaking in 
support of Senate bill 1397.
    The Lower Sioux Indian Community is the largest of the four Dakota 
Communities, and one of 11 Federally Recognized Tribes in Minnesota. 
The GLATHB covers Indian Health Service (IHS), Tribal and Urban (ITU) 
health services in the State of Minnesota, Wisconsin, Michigan, 
Northern Indiana and the Indian Health Board of Chicago, IL.
    The Lower Sioux Indian Community is committed to improving the 
standard of living and quality of lives for our citizens. Access to 
land, water, utilities, safety initiatives, programming, and business 
are critical to an equitable quality of life. Data is an imperative 
component for tribes to support these requisite accesses. As I reviewed 
the proposed changes in S. 1397, I'm identifying a potential 
improvement that is long overdue. The following are ongoing concerns of 
the current system and an opportunity to support tribal data 
sovereignty.
1. Need for meaningful data
    Most data reported to the U.S. Government relies on elective, self-
reporting of tribal affiliation instead of tribal enrollment data; much 
of which has been collected to satisfy the administrative needs of the 
U.S. Government and not the needs of the individual tribes. \1\ Data 
collection for tribes in the U.S. typically revolves around programming 
and cost centers. This binary data is not particularly useful 
especially for smaller tribes.
---------------------------------------------------------------------------
    \1\ Bruhn, L. (2014). Identifying useful approaches to the 
governance of Indigenous data. The International Indigenous Policy 
Journal, 5(2). Doi: http://dx.doi.org/10.18584/iipj.2014.5.2.5
---------------------------------------------------------------------------
    Tribal citizens are storytellers by nature. Our stories, passed 
down from generation-to-generation reflect a qualitative approach to 
data. Oftentimes this is supported by current quantitative data to 
identify resource needs. Most data collected by the U.S. government is 
quantitative. ``Indigenous data is information, in any format, that 
impacts indigenous lives at the collective and individual levels.'' \2\
---------------------------------------------------------------------------
    \2\ Kimmerer, R. (2002). Weaving traditional ecological knowledge 
into biological education: A call to action. BioScience, 52(5). Doi: 
http://dx.doi.org/10.1641/0006-3568(2002)052[0432:WTEKIB]2.0.CO;2
---------------------------------------------------------------------------
    As a registered nurse working in a tribal health system, collection 
of tribal citizenship data is part of our processes. In my previous 
work within three major health systems, the impetus for a patient to 
identify as a tribal citizen falls almost exclusively on the patient. 
One private-sector health system that asks about tribal affiliation is 
Yale University Medical Center in Connecticut, during the patient 
registration process. Kudos to them for asking this when caring for one 
of our relatives recently. The specificity of tribal affiliation 
oftentimes is not specified or may be generalized to either Caucasian 
or more than one race. The classifications do not support determination 
of tribal data.
    To complicate data collection, Indian tribal citizens may not 
identify themselves as belonging to a tribe. This is done with concern 
for receiving substandard treatment or a fear of discrimination. S. 
1397 may provide additional assurances to further define the 
protection, importance, and obligations from the U.S. Government of 
data to tribal citizens.
2. Need for data sharing agreements between U.S. Government agencies, 
        States with tribes, tribal health boards and epidemiology 
        centers
    Lower Sioux Indian Community's tribal constitution identifies that 
the Tribal Council (government) is responsible for the health and 
wellbeing of the tribe. Tribal use of data goes back further than 
colonization. Data was used to make decisions on survival. Identifying 
the season's population of deer and bison, helped determine how many 
could be taken for survival and maintain the game populations for 
future. Another example was which type of corn grew the strongest and 
some of the corn would be kept as seeds for the upcoming season. Data 
was, and continues to be collected and analyzed for survival and 
harmony.
    What I've seen over the past 8 years in my journey from the private 
to the tribal health sector is a parental role taken by the U.S. 
Government over tribes. The most recent example I can share with you is 
from 2021 when we began receiving COVID-19 vaccines. Tribes agreed to 
report their data with regard to vaccinations being administered 
through the Minnesota Immunization Information Connection; a repository 
for immunizations and vaccinations given in Minnesota. On a call with 
tribal health leaders, a staff member at Minnesota Department of Health 
very abruptly identified that tribes would be monitored that we were 
giving the vaccines and not hording them. When asked if other entities 
receiving vaccine through MDH, such as retail pharmacies, county public 
health agencies and private clinics would be equally monitored; the 
subject quickly changed. Data is also used as a pass/fail grade for 
tribes. This was seen early on with the State Health Improvement 
Program or SHIP outcomes. It took a fair amount of time to come to 
understanding what success looked like in a tribal community versus 
County.
    Fast forward to today, the need to make data-driven decisions and 
set policy could not be better identified than the COVID-19 pandemic 
response. Tribes rely on their area Tribal epidemiology centers (TEC). 
TEC's, such as the Great Lakes Inter-Tribal Epidemiology Center were 
denied access to COVID-19 data what was made available to States. 
Tribal epidemiologists were denied access to requisite data on testing 
and infection rates to inform, direct and make tribal, data-driven 
decisions. Much of our information was based on county and State data 
which oftentimes was received from mainstream news streams. The concern 
was identified with sharing data with tribes from the CDC was data-
privacy issues. \3\
---------------------------------------------------------------------------
    \3\ Rothermich, E. (2021). Pandemic strengthens calls for 
Indigenous data soverieignty. The Regulatory Review. Retrieved March 
21, 2022 from: https://www.theregreview.org/2021/02/11/rothermich-
pandemic-strengthens-calls-indigenous-data-sovereignty/
---------------------------------------------------------------------------
    Over the past year, about half of the 11 tribes have a data-sharing 
agreement between the Minnesota Department of Health and tribe. Other 
tribes are currently in consultation regarding the data-sharing 
agreement. I attribute two reasons for this success. Minnesota 
Department of Health elevated the priority of America Indian public 
health by creating it's first Office of American Indian Health. Tribal 
data-sharing agreements was one of the first objectives of this 
department.
    Our TEC's consist of experts parallel to State health departments 
and the CDC. TEC's play various roles for tribes in the data sharing 
whether it's a pass through to tribal health departments or a more 
collaboration where some tribes do not have the professional staff in 
place to review and refine the data. Data sharing with a TEC brings 
data to the tribe in a way they may use this.
    S. 1397 identifies the opportunity for development of tribal data-
sharing agreements in a government-to-government consultation. Each 
tribe is unique and a data-sharing agreement will need to be 
individualized. I'm proud to share that the Minnesota Department of 
Health is an example of what can take place when tribal-State 
relationships are prioritized and fostered. This example and others can 
serve as a framework to CDC, States and other organizations working 
with tribes.
3. Need for data that is accurate regarding birth and death records in 
        a tribe
    Accuracy of tribal affiliation on death certificates is a unique 
phenomenon to American Indians. In studies regarding white, black and 
Hispanic populations, they do not experience the same level of error as 
does the death certificate of American Indians. Reliability on 
appearance or peripheral exposures by persons completing death 
certificates is at cause for close to 50 percent of inaccuracies in 
reporting Caucasian versus American Indian. \4\
---------------------------------------------------------------------------
    \4\ Wheeling, K. (2017, June 14). How mortality data fails Native 
Americans. Pacific Standard. Retrieved March 19, 2022 from: https://
psmag.com/news/how-mortality-data-fails-native-americans
---------------------------------------------------------------------------
    The Lower Sioux Indian Community consists of approximately 1,200 
citizens. Approximately half of that number is 18 or under. Birth 
records are important as part of the tribe's planning. For example, 
Lower Sioux Indian Community supports its tribal children through 
supporting equity from pre-school through high school and higher 
education. We monitor these numbers to assure we plan to support our 
relatives from their start. In death, we look for data to help identify 
causes that may be impacted by disparities. Some examples include 
chronic illness, diseases, and suicide. It's difficult to cite errors 
when one does not have access to a birth and death certificate.

    The Chairman. Thank you to all of our testifiers.
    I will start with Mr. Newland. A brief question, hopefully 
a brief answer. Congress has amended the Long-Term Leasing Act 
nearly 60 times on a tribe-by-tribe basis. We just heard from 
Chehalis about how the 25-year lease limitation is stifling 
business prospects.
    Are you able to address this without a statutory fix?
    Mr. Newland. No.
    The Chairman. Will you work with me on finding a statutory 
fix?
    Mr. Newland. Yes.
    The Chairman. Thank you.
    Chairman Pickernell, if Congress were to amend the Long-
Term Leasing Act to authorize 99-year leases, would this 
support the economic sovereignty of your tribe, and how so, if 
so?
    Mr. Pickernell. It would help us in securing loans for our 
economic development ventures, and give us the ability to 
ensure our lenders that we can map longer terms with the 
projects that we present.
    The Chairman. Thank you very much.
    Mr. Newland. for the record, does the Department of 
Interior support the changes to the NATIVE Act in S. 3789?
    Mr. Newland. Yes, Mr. Chairman.
    The Chairman. Thank you.
    Chief Byrd, what hurdles have you faced in building a 
historical record to support your tribe's efforts to achieve 
federal acknowledgement?
    Mr. Byrd. Since most of our Choctaws and other southeast 
Indians moved to Oklahoma, the greatest number of recorded 
names are those that moved. In that respect, those that 
remained, they were literate, and they were able to push 
federal agents to get their names on federal rolls. Those that 
were not as literate, they would have to have been included, 
most of our ancestors were at the mercy of unscrupulous federal 
agents who often refused to enroll them.
    Therefore, the action or inaction of those federal agents 
resulted in most of our ancestors being excluded from federal 
lists or Indians remained in Alabama. With that being said, we 
rely on scholars from universities, we have Dr. Denise Bates 
from the University of Arizona, she is working exclusively with 
us now in getting recorded documentation for our tribe that we 
did not have access to before. We are putting that on digital 
networks so that we will have that information readily 
available.
    We receive additional information concerning census 
reports, military records, and everything that proves that 
there were Choctaws in the Mobile-Washington County areas 
during the pre- and post-Civil War era.
    The Chairman. Thank you very much.
    Chairwoman Flores, I understand Arizona is in a mega-
drought and that tribal conservation at Lake Mead is really 
essential. What would your conservation plan be if you had 
water releasing authority, and how would you partner with other 
stakeholder tribes to mitigate the depletion of Lake Mead?
    Ms. Flores. Thank you for the question. How would we 
partner with other States? With the State of Arizona, we would 
partner with stakeholders within the State. We wouldn't go 
outside the State of Arizona. We have overwhelming support; we 
have had hearings with the State. We work with the Federal 
Government; we work with the State of Arizona.
    And going back to my first statement, we held public 
hearing meetings and we have feedback from that. We have held 
open discussions of comments, a month-long comment period. So 
we have overwhelming support in working with the State of 
Arizona and water users.
    The Chairman. Thank you.
    Final question. Chairwoman Lee-Gatewood, I understand 
drought conditions are getting worse. They are getting worse 
everywhere, but I know it is particularly bad in the State of 
Arizona. If this bill passes, how quickly will you be able to 
get shovels into the ground on your water system?
    Ms. Lee-Gatewood. Construction is scheduled for our rural 
water system, according to our tribal engineer, assuming the 
record of decision is completed in April 2024 for the project. 
Final design of the pipelines could be finished and 
construction started in late 2025, and the dam in 2026 and 
water treatment plant in 2028. Water could start to be 
delivered to our communities in 2028.
    So we are looking forward to that.
    The Chairman. Thank you very much. Senator Murkowski?
    Senator Murkowski. Thank you, Mr. Chairman.
    Mr. Newland. I would like to turn to you first. This will 
relate to previously denied recognition petitions. Is it 
Interior's position that in order to obtain federal recognition 
after a petition is denied, that the tribe has to come to 
Congress?
    Mr. Newland. Thank you, Madam Vice Chair. Yes, that is our 
position.
    Senator Murkowski. Given then that the administrative 
recognition process was overhauled effectively in 2015, why not 
just allow the tribes that were denied under the old process to 
try again for Department recognition?
    Mr. Newland. Thank you. I appreciate that question, Vice 
Chair Murkowski. That was the position that the Department 
maintained in the 2015 regulations, that groups that had been 
previously denied should not be permitted to repetition under 
revised regulations. The Department was sued on those 
regulations and we had a remand from the federal courts in two 
cases to take another look at those regulations. We are in the 
process of doing that.
    I hope to have a clearer answer for you on what the 
regulations will say. I can't speak to it at this time.
    Senator Murkowski. Do you have any sense of timing on that?
    Mr. Newland. I would say soon.
    Senator Murkowski. Soon.
    [Laughter.]
    Mr. Newland. Madam Vice Chair, I think we can measure that 
in weeks, not months.
    Senator Murkowski. I look forward to receiving an update on 
that. Thank you.
    Mr. Newland. Thank you.
    Senator Murkowski. Mr. Figueroa, let me ask you about this 
GAO report that I referenced in my opening, and you have 
referenced as well. The report identified a lot of what we knew 
when we were working to put together the bill. It provides for 
five recommendations on how to best remove these challenges. 
Apparently, HHS concurred with all five of these.
    So the question is whether or not any steps have been taken 
so far to resolve these five recommendations that are 
highlighted in the report.
    Mr. Figueroa. Thank you for that question, Vice Chair. The 
Department appreciates the GAO's careful examination of tribal 
access to the data. We have been working through the 
Secretary's tribal advisory committee to be able to identify 
those data needs and work with tribes to ensure that 
information is available.
    We have the good fortune of having Councilman Victor Joseph 
as the chair of the STAC, and also Vice President Ileen 
Sylvester to provide us that unique Alaska perspective to 
ensure that we are incorporating those ideas and those 
realities into our approach, to ensure that in the future of 
tribes have the data they need to make public health decisions.
    Senator Murkowski. Another question for you, and I would 
ask Dr. Prescott to weigh in on this as well. There were these 
supporting tribal public health capacity grants that were 
administered through CDC for State, tribal, local and 
territorial support. CDC's approximately 70 grants were awarded 
to various Alaska entities.
    We all recognize that this pandemic has been very, very 
hard on American Indians, Alaska Natives. I know that many 
tribes across the Country are searching for qualified public 
health staff, particularly the epidemiologists, to work on 
providing timely health data and recommendations.
    But this grant funding out there is basically one-year 
funding. If what we are trying to do is build long-term 
capacity here, capacity building, does this really allow for 
that? Will this grant funding continue beyond the pandemic? 
What is the status as you understand it? Then Dr. Prescott, if 
you might give some anecdotal information to this as well.
    Mr. Figueroa. Vice Chair, thank you for that question. In 
terms of the grants, we moved quickly in the Administration to 
ensure that we were building the capacity, and that American 
Indians and Native Alaskans had the resources they needed to be 
able to respond. As you mentioned, the disparities that we saw 
in these communities were unacceptable.
    For the first-year analysis, it shows that these folks have 
gone through surveillance, epidemiology, and also building up 
health infrastructure. The future of those funds and the future 
of our ability to continue to fund those programs will depend 
on our ability to work with Congress to continue the available 
funding for those programs.
    Senator Murkowski. Dr. Prescott?
    Dr. Prescott. Thank you, Vice Chair Murkowski.
    I am familiar with the CDC grants that you alluded to. Of 
the grants, speaking for Lower Sioux Indian Community, we have 
applied before. We are a smaller tribe, so it is a big 
challenging. We were not successful. However, we have 
participated; our tribal epidemiology center was a grant 
recipient and we were a sub-awardee of that.
    I agree with the one-year term being very challenging. In 
Minnesota, we have had a little bit of success by having grants 
available for three years. This is largely to see a program go 
through time, versus one year whereas oftentimes you may not 
know about funding for a second year, and the employee is 
looking for another job at nine months, hence they move on and 
the program is incomplete. So I hope that helps give you a 
picture.
    Senator Murkowski. I appreciate that.
    Thank you, Mr. Chairman.
    The Chairman. Senator Smith.
    Senator Smith. Thank you, Mr. Chair.
    Thanks so much to all of our panelists. I am going to focus 
my questions on the Tribal Data Health Improvement Act, which 
we have been talking about. Thanks so much for your 
partnership, Senator Murkowski.
    We introduced this bill because of reports during the 
pandemic of the CDC failing to share public health data with 
tribal public health authorities and epidemiology centers. The 
bill is pretty simple. It clarifies the CDC's responsibility to 
share the data and it encourages States and the Federal 
Government to work with tribes to solve the problems of under 
sampling and misclassification that we have been hearing about 
today.
    At its core, this is certainly a public health issue. But 
it is also an issue of tribal sovereignty, as part of the 
treaty responsibilities and government-to-government 
relationships between the government and tribal nations. So we 
need to figure out a solution to this problem.
    Dr. Prescott, I am going to start with you, and then I will 
come to you, Mr. Figueroa. Dr. Prescott, could you tell us a 
bit about how data sharing issues during the pandemic have had 
an impact on your tribe's ability to respond to the crisis? If 
our bill passed, how would it help?
    Dr. Prescott. Thank you, Senator Smith, for the question. 
Data sharing was limiting to us during the pandemic, primarily 
because there was a lag time getting tribal-specific data. What 
we have found is that our tribal epidemiology center was 
somewhat very limited because they had resources to help us put 
together tribal-specific public health responses and whether 
the education policy, whatever it may be. We had to rely on our 
State partners who could get the data. We have a good 
relationship with our State health department, the American 
Indian office that we have there. So we were able to get that 
data.
    But the fact that we couldn't get it from the CDC, which 
again, if we look at government-to-government relations, that 
should have been readily available. Coming from the private 
sector, getting data like that was not so problematic until I 
came to the tribal world.
    I hope that helps.
    Senator Smith. Let me understand that. So you had asked for 
the data and then it just wouldn't come, or they would say they 
couldn't provide it to you? Give me a little bit more detail on 
what that problem looked like.
    Dr. Prescott. Sure. We worked through our tribal 
epidemiology center, the Great Lakes Tribal Epidemiology 
Center. They were not able to get the data. And then at times 
the data wasn't specific enough.
    We are a very small tribe, 1,200 people. It was very 
difficult because it was oftentimes not collected or we had to 
wait for county data to be published, and then you would assume 
that if it is Redwood County in Minnesota that it was part of 
the American Indian-identified group. So it was very hard to 
get data from the CDC for us directly.
    Senator Smith. Having visited Lower Sioux, and having 
visited your clinic, I know what an amazing job you do there. 
But not having good data makes it really difficult for you to 
be able to do the job that you know how to do, you can do 
there.
    Dr. Prescott. Thank you.
    Senator Smith. Mr. Figueroa, I am sure we agree that data 
sharing with tribes is essential, and that this is both a 
public health matter as well as a matter of tribal sovereignty, 
right?
    Mr. Figueroa. Yes.
    Senator Smith. Thank you. Will HHS work with us to prepare 
this bill for markup? Can we count you on to work with us in a 
timely way to get that done?
    Mr. Figueroa. Yes, Senator.
    Senator Smith. Thanks very much. That is my Minnesota nice 
way of saying that I need HHS to be part of the solving of this 
problem, not just the explaining of it. I appreciate that very 
much.
    Mr. Figueroa. Senator, I will give you my New York 
straightforward.
    [Laughter.]
    Mr. Figueroa. We have a scheduled meeting for this Friday, 
and we look forward to working with your team to provide that 
technical assistance.
    Senator Smith. I think we can work together. Thank you very 
much.
    I yield back, Mr. Chair.
    The Chairman. That is very nice of you to give us a minute 
back.
    Senator Cortez Masto?

           STATEMENT OF HON. CATHERINE CORTEZ MASTO, 
                    U.S. SENATOR FROM NEVADA

    Senator Cortez Masto. Thank you. Welcome to the panelists, 
thank you all for being here.
    Let me follow up on Senator Smith's conversation, because I 
do want to thank Senator Smith and Senator Murkowski for their 
work on the Tribal Health Data Improvement Act. Thank you to 
the Chairman for bringing this up.
    I do agree this bill is about sovereignty. It is about 
honoring our trust and treaty obligations to tribal communities 
by providing them with the same data tools that CDC already 
gives to States.
    Dr. Prescott, and Mr. Figueroa, let me ask you this. Can 
you talk a little bit about the benefit that tribal 
epidemiology centers bring to the communities, and why it is 
important they have access to data like every other 
governmental entity?
    Mr. Figueroa. let's start with you, then Dr. Prescott, if 
you would weigh in, I would appreciate it.
    Mr. Figueroa. Thank you for that question, Senator. The 
Department joins you in the overall objective to respect and 
honor tribal sovereignty and access to good quality data is 
absolutely a big part of that. It is essential for tribes to 
have the information they need to be able to make public health 
decisions as a priority of not only the Secretary but also the 
Administration.
    I would say, to the Secretary's Tribal Advisory Committee, 
we bring together tribal leaders to talk about the data needs 
that they have, the challenges associated with getting that 
data, and working with them to develop solutions. We are 
honored to have Councilwoman Natalie Pacheco as part of that 
process. We will continue to work with not only the Committee 
but also with you to ensure that that happens on a consistent 
basis.
    Senator Cortez Masto. Mr. Prescott, without having this 
data, what did that mean for your community?
    Dr. Prescott. It meant we had to rely on those around us, 
which luckily our tribe does have a lot of good partners in our 
local public health and our State. However, it was challenging, 
because we had resources at the tribal epicenters that are 
essentially apples to apples when you look at CDC and expertise 
and epidemiology, where we could have, in a faster approach, 
gotten information out to our tribe, education and resources, 
and identifying specific education to tribes versus a more 
global approach.
    Senator Cortez Masto. And in the middle of a health care 
pandemic, I would imagine the most accurate data and most 
efficient, up-to-date information that you can get is going to 
be crucial for the tribes. Is that correct?
    Dr. Prescott. Correct, yes. And smaller tribes like us, we 
don't have an epidemiologist on staff. So we do rely on our 
tech centers to provide that.
    Senator Cortez Masto. Thank you.
    Let me jump to S. 3789. We have some tribes in Nevada who 
are looking to expand their tourism economy, build off of our 
State's millions of annual visitors. Senator Schatz' bill, S. 
3789, would amend the NATIVE Act to allow BIA to implement 
grant programs to assist in developing tourism in Native 
communities.
    Let me ask you, Mr. Newland, would this bill help BIA 
expand outreach and assistance for smaller tribes like mine in 
Nevada and help them build things like cultural centers?
    Mr. Newland. Thank you, Senator. As I understand it, this 
bill would make this process simpler for the Department to make 
the grant awards and distribute that, and clarify how we award 
grant funding under the NATIVE Act to Native Hawaiian 
organizations, which in turn will make it easier for us to 
administer the entire program.
    Senator Cortez Masto. So let me ask you this. The authority 
was there, we just didn't have the implementation authority. 
And that is what this bill does, allows you to implement the 
grants.
    How do you ensure that the tribes now are aware of these 
grants, and are going to be applying for them?
    Mr. Newland. We do our best every year, Senator, to 
publicize our notice of funding opportunity under the NATIVE 
Act and try to encourage tribes to apply. We have seen a growth 
in the number of applicants. Right now we are reviewing the 
current year applications, and I look forward to making those 
awards.
    Senator Cortez Masto. Thank you. Let me just offer this, 
because I do think, as I talked with my tribes, and they are 
smaller tribes, a lot of times they don't have the resources, 
one, or the staffing to be able to be aware of the grants, let 
alone apply for them, which is going to be a challenge we still 
have to address, I believe, here in Congress. Oftentimes they 
are not aware.
    So is there a way that we in Congress can work with your 
agency to figure out how we make these tribes aware, and then 
provide technical assistance, or figure out how we help them 
apply for these grants? I think they are still a challenge. 
Quite often what I hear from my tribes is because they lack the 
resources or the matching dollars, they are just not going to 
apply for some of these grants. We have to do a better job.
    Mr. Newland. I agree, Senator. It is always a challenge for 
us to make sure that these grants are an equal opportunity for 
tribes across Indian Country, and the folks who need the most 
help are probably the folks who need the grants the most. So 
we're always looking for ways to do better at that, and open to 
ideas.
    Senator Cortez Masto. Thank you. Thank you, Mr. Chairman.
    The Chairman. Thank you to all of our testifiers, to all 
our staff, to members. If there are no further questions for 
our witnesses, members may submit follow-up questions for the 
record. The hearing record will be open for two weeks.
    I want to thank all of the witnesses for their time and 
their testimony today. This hearing is adjourned.
    [Whereupon, at 3:52 p.m., the hearing was adjourned.]

                            A P P E N D I X

 Prepared Statement of Thomas Buschatzke, Director, Arizona Department 
                           of Water Resources
    Dear Chairman Schatz and Vice Chairwoman Murkowski:

    We are in the midst of a Colorado River drought that has been 
termed by expert hydrologists to be a ``mega-drought''. It is, by 
expert estimation, the worst drought situation on the Colorado River 
for over 1,200 years.
    Arizona, Nevada, and Mexico are already experiencing the painful 
effect of the first Colorado River shortage declaration ever. In my 
State alone, we estimate that the shortage is causing caused up to 30-
40 percent of our farmland within the Central Project service area to 
lie fallow for lack of water.
    Lake Powell is also headed towards critically low elevations that 
raise concerns for the infrastructure there. More must be done to 
address that issue.
    In the face of this crisis, I have been working on multiple long 
and short-term efforts to help our State and our region better respond 
to this mega-drought. The bill you are considering today, S. 3308, is 
one of the tools in the toolbox that I think will ultimately help to 
play a long-term role in giving us a flexible tool for future drought 
response.
    It fits in a range of efforts being pursued to help develop the 
resources and tools for the water future of our region, ranging from 
rapid implementation of water conservation funding available in the 
Bipartisan Infrastructure Law, pursuing faster implementation of the 
Salton Sea mitigation plan to free up more water for conservation, and 
ultimately a possible desalination plant to supply our region with a 
new source of water.
    The tribal water marketing measure contained in S. 3308 is yet 
another of these measures. While it cannot be considered an immediate 
answer to drought concerns, long term, particularly if we are able to 
find a path forward to bring in additional tribal supplies, it will 
also be a critical tool for us to use to help address the water needs 
in my State.
    In the short term, my immediate focus is on addressing the mega-
drought crisis we are facing today. To do that, our entire region must 
conserve water in ways we never have before. I know that the Lower 
Basin States of Arizona, Nevada, and California have taken a great step 
in that direction by committing to the 500,000 Plus Plan in December, 
through which the States and the federal government will seek to 
conserve 1,000,000 acre-feet of water in Lake Mead over 2022 and 2023. 
The Upper Basin States must implement their Drought Operations 
Agreement and I know that the details of the plan are close to 
completion.
    Mexico is a cherished partner and are working on their Additional 
Proactive Measures plan to conserve more water in Lake Mead.
    The major contributors to the 500,000 Plus Plan have been our 
tribal partners, the Gila River Indian Community, and the Colorado 
River Indian Tribes, and I want to commend them both for their 
commitment to this regional effort and urge them both to continue these 
efforts in 2023. Additional non-tribal contributions are being made as 
well.
    I am thankful, that the process to begin consideration of this 
important bill has begun. I know that there are those who have raised 
concerns about the bill as drafted and I look forward to working with 
you and with them to finding the right path forward to allow tribes to 
use their tribal water rights as they see fit off their Reservations in 
ways that will ultimately benefit us all.
                                 ______
                                 
        Prepared Statement of the Mohave County Water Authority
    Dear Chairman Schatz and Vice Chairman Murkowski:

    Mohave County Water Authority (``MCWA'') is a governmental agency 
comprised of seven governmental entities \1\ located in Mohave County. 
MCWA submits this statement in support of S. 3308, a bill to authorize 
the Colorado River Indian Tribes (``CRIT'') to develop uses of its 
water off reservation through leases, exchanges, storage agreements or 
options for those activities. The contemplated off-reservation use of 
Colorado River water will provide to CRIT the same opportunities 
afforded other Arizona Tribes.
---------------------------------------------------------------------------
    \1\ MCWA members are Bullhead City, Golden Shores Water 
Conservation District, Kingman, Lake Havasu City, Mohave County, Mohave 
Valley Irrigation and Drainage District, and Mohave Water Conservation 
District. See Arizona Revised Statutes, Section 45-2202, and Sections 
45-2201 through 45-2283.
---------------------------------------------------------------------------
    The CRIT are valuable partners in Arizona. Their ability to move 
water off reservation is essential to the successful implementation of 
a statewide solution to withstand the extended drought Arizona and the 
west is facing. Arizona and all basin states need as many tools in the 
toolbox as we can find to survive the ongoing drought.
    The availability of CRIT water for use off reservation will 
increase flexibility to meet various water needs in Arizona. CRIT water 
could be delivered in times of shortage to replace water lost due to 
delivery reductions under existing delivery contracts. CRIT water could 
be stored in central Arizona for future recovery and use in times of 
shortage or otherwise. Central Arizona could also use it to meet future 
growth demands, leaving current Colorado River supplies in the on-River 
region in place.
    Thank you for the opportunity to express our support of S. 3308.

    Attachment

 bos resolution no. 2020-184--a resolution of the board of supervisors 
of mohave county, arizona addressing the federal statute and agreements 
 sought bythe colorado river indian tribes (crit) to authorize crit to 
  lease, option, store and exchange up to 150, 000 acre feet of first 
  priority water from on their reservation, to off their reservation 
anywhere in the lower basin portion of the state of arizona, including 
                     up and down the colorado river

    WHEREAS, the Board of Supervisors met in Regular Session this 21St 
day of December, 2020; and

    WHEREAS, the water rights for the Colorado River Indian Tribes 
(CRIT) were confirmed by the United States Supreme Court in the series 
of cases known as Arizona v. California as first-priority, present 
perfected rights as quantified in the Consolidated Decree in that case. 
The CRIT Decreed Allocation available for use in the State of Arizona 
is quantified as: (i) diversions of 662, 402 acre-feet per year; or 
(ii) consumptive use required for irrigation of 99, 375 acres and 
satisfaction of related uses, whichever of (i) or( ii) is less. The 
most recent Consolidated Decree entered by the United States Supreme 
Court in Arizona v. California is found at 547 U.S. 150 (2006); and

    WHEREAS, the CRIT is seeking federal legislation in the United 
States Congress to authorize the CRIT to enter agreements, leases or 
options to lease, exchanges or options to exchange, or storage 
agreements or options for storage (``Water Agreements'') for the use 
and storage of a portion of the CRIT Consumptive Use off the 
Reservation up to 150,000 acre feet per year anywhere in the part of 
the State of Arizona that is in the Lower Basin of the Colorado River 
system and to authorize the Secretary of the U.S. Department of the 
Interior (Secretary) to approve such agreements. (``Federal 
Legislation''); and

    WHEREAS, any Federal Legislation authorizing CRIT water agreements 
will reflect a national decision by the United States Congress to make 
first-priority, present perfected Colorado River water rights decreed 
to the CRIT available for off-reservation use only in Arizona. CRIT 
Land and Water rights that lie in California are not included in the 
Federal Legislation; and

    WHEREAS, a federal statute enacted in 1792 (the Indian Trade and 
Intercourse Act) prohibits the transfer of federal Indian trust assets 
without an Act of Congress ( 25 USC  177). Congress has authorized the 
Secretary to approve water leases in Acts of Congress authorizing 
tribal water settlements for other Arizona Tribes; and

    WHEREAS, private enterprise developments in Mohave County along the 
Colorado River are in need of additional Colorado River water sources 
in order to complete their plans for expansion and population growth, 
and no groundwater exists in these areas for future growth; and

    WHEREAS, Lake Havasu City, Bullhead City and the City of Kingman 
will need additional water resources later in this century to continue 
their economic development for their Citizens and continued population 
growth and;

    WHEREAS, all water made available by the CRIT for use off the 
Reservation shall be from the reduction of Consumptive Use on the 
Reservation during the term of any CRIT Water Agreement, and will only 
be made available inside the State of Arizona in any area that is part 
of the Lower Basin; and

    WHEREAS, CRIT water that is subject to Water Agreements shall 
retain its firstpriority status, must be used within the Lower Basin 
portion of the State of Arizona, and recipients of CRIT water must use 
the water in compliance with Arizona law; and

    WHEREAS, the CRIT shall reduce the water order requested for 
delivery on the Reservation by an amount equivalent to the volume of 
water to be delivered off the Reservation pursuant to a CRIT Water 
Agreement. The Secretary shall report the portion of the CRIT Decreed 
Allocation that was delivered off the Reservation pursuant to a CRIT 
Water Agreement in the Water Accounting Report.

    WHEREAS, the CRIT and the Arizona Department of Water Resources 
(ADWR) have reached certain negotiated written agreements now posted on 
the ADWR webpage. These agreements and the draft Federal Legislation 
were the subject of two public hearings on December 7 and 10, 2020, and 
are available for a public comment period that ends on January 8, 2021 
at 5: 00 pm; and

    WHEREAS, the CRIT and ADWR have agreed that CRIT shall submit 
proposed CRIT Water Agreements to the Director for review 60 days prior 
to the execution of such agreements. The proposed CRIT Water Agreements 
and supplemental documents may have financial and proprietary 
information redacted but shall include:

        a. the parties to the CRIT Water Agreements;

        b. the method of accounting for the water subject to the CRIT 
        Water Agreement;

        c. the term of the CRIT Water Agreement;

        d. the location and purpose for the off-reservation use of the 
        CRIT water, including maps of the location of use;

        e. technical memoranda documenting the reduction in Consumptive 
        Use in a volume equal to the amount of water in the CRIT Water 
        Agreement;

        f. the method for transporting the water to the end user; and

        g. the agreed upon dispute resolution mechanism; and

    WHEREAS, The CRIT and the ADWR have agreed in their negotiated 
written agreement that the CRIT agrees to a limited waiver of its 
sovereign immunity from suit by ADWR solely for the purpose of 
interpretation or enforcement of this Agreement; and

    WHEREAS, on November 18, 2019 the Board of Supervisors of Mohave 
County approved a Resolution 2019-138 opposing the transfer of 2, 083. 
01 acre-feet (af) of fourth-priority water from a private entity GSC 
Farm, LLC in La Paz County to the Town of Queen Creek in central 
Arizona; and

    WHEREAS, on September 17, 2020, the Board of Supervisors of Mohave 
County approved a Resolution 2020-138 continuing its opposition to the 
GSC Farm LLC transfer to the Town of Queen Creek and stating that such 
a transfer by a private party requires ``the Bureau of Reclamation to 
fully comply with public processes of the National Environmental Policy 
Act of 1969 (NEPA) and the Endangered Species Act of 1973, and such 
action requires the preparation of a full Environmental Impact 
Statement;'' and

    WHEREAS, on November 16, 2020, in the face of ADWR's recommendation 
to approve a partial ``transfer [of] 1, 078.01 of/yr of fourth priority 
entitlement from GSC to Queen Creek,'' the Board of Supervisors of 
Mohave County approved a Resolution 2020-167 opposing any future 
private party transfers of fourthpriority off-reservation water without 
the safeguards of (a) a public vote of the transferring District, City 
or Town, (b) direction of 25 percent of the transfer amount to Lake 
Mead as System Conservation Water, and (c) reservation of adequate 
water to the remaining land left behind for its future development.

    WHEREAS, water is one of our most precious natural resources that 
is in jeopardy of being depleted if not managed adequately; and

    WHEREAS, water is an essential, scarce resource necessary for the 
continued growth and economic development of On-River communities;

    WHEREAS, the only source of water available to On-River Communities 
is Colorado River water, as ground water is not available; and

    NOW THEREFORE, BE IT RESOLVED as follows:

        1. The Mohave County Board of Supervisors on behalf of Mohave 
        County supports Federal Legislation and agreements that will 
        authorize the Colorado River Indian Tribes to enter leases, 
        exchanges, storage agreements of on-reservation First-Priority, 
        present perfected Tribal water rights to be used off the 
        reservation, or options for those activities. We support such 
        Federal Legislation because such leases and options may well 
        benefit Colorado River Communities up and down the River who 
        seek water; and

        2. The Mohave County Board of Supervisors on behalf of Mohave 
        County supports such Federal Legislation because it will be 
        authorized by the United States Congress and as such will 
        reflect the view of the nation, whereas a single farm 
        transferring its allocation over the well-being and objections 
        of many river communities is akin to tyranny of the minority; 
        and
        3. The Mohave County Board of Supervisors on behalf of Mohave 
        County supports such Federal Legislation because it will result 
        in the same treatment of River Community Tribes as other 
        Arizona Tribes now enjoy; and

        4. The Mohave County Board of Supervisors on behalf of Mohave 
        County supports such Federal Legislation because it may benefit 
        central Arizona development interests that are now engaged in 
        the systematic raiding of our River Community Fourth- Priority 
        water allocations that we believe were reserved for the River 
        Communities by Arizona. If up to 150,000 acre feet per year of 
        Tribal First-Priority, present perfected, decreed Colorado 
        River Water becomes available for long-term leasing, those 
        central Arizona interests may cease, or at least delay, their 
        many attempts to raid the River Communities Fourth-Priority 
        water allocations.

        5. The Mohave County Board of Supervisors on behalf of Mohave 
        County will continue to oppose any future off-reservation 
        transfers of Colorado River water from the mainstem of the 
        Colorado River away from Mohave County, and the River 
        Communities as a whole, because it is an attack on the water 
        rights and continued economic growth and viability of rural 
        Arizona; and

        6. That the Clerk of the Board is directed to send a copy of 
        this Resolution to the Director of the Arizona Department of 
        Water Resources, the Chairman of the Colorado River Indian 
        Tribal Council, the Docket Supervisor of the ADWR, the 
        Secretary of the Interior, the Commissioner of the Bureau of 
        Reclamation, the Regional Director of the Lower Colorado Region 
        of the Bureau of Reclamation, the Phoenix Area Manager, Bureau 
        of Reclamation the Governor of Arizona, our Federal and State 
        legislators, the Mayors of the Cities and Towns in Mohave 
        County and the Boards of the Districts and Water Authority 
        located in Mohave County.

    PASSED, APPROVED AND ADOPTED this 21st day of December 2020.
                                 ______
                                 
  Prepared Statement of the Ute Indian Tribe of the Uintah and Ouray 
                              Reservation
    Chairman Schatz, Vice-Chairman Murkowski, and Members of the Senate 
Committee on Indian Affairs, thank you for the opportunity to submit 
testimony on the Legislative Hearing to receive testimony on numerous 
Indian Country bills, but specifically S. 3443, Mobile-Washington 
County Band of Choctaw Indians of South Alabama Recognition Act (``MOWA 
Act''). On behalf of the Ute Indian Tribe (``Tribe'') of the Uintah and 
Ouray Reservation (``Reservation''), the Ute Tribal Business Committee 
would like to provide testimony on the MOWA Act. Tribal recognition is 
the inherent right of tribes to self-govern, and establish their own 
laws that govern membership, laws, religion, and community. To be a 
federally recognized tribe inherently includes tribal sovereignty and 
creates a federal trust responsibility, which must be guarded at all 
costs.
Tribal Opposition of Congressionally Recognized Tribes
    Given the significance of federal recognition, the Tribe must 
oppose the MOWA Act. Recognition of Indian tribes, and thus tribal 
sovereignty, is one of the United States' most solemn and important 
obligations. Federal recognition establishes a special and unique 
government-to-government relationship between the Federal government 
and an Indian tribe and creates significant legal rights, 
responsibilities, and commitments. The Tribe opposes the MOWA Act for 
several reasons.
    First, the Tribe supports the federal recognition of Indian Tribes. 
However, the Tribe does not believe that federal recognition should be 
subject to the legislative process and Congressional politics. Partisan 
politics can prevent a deserving tribe from being recognized or 
recognize an undeserving group with no indigenous ties as a federally 
recognized tribe. We know first-hand the problems when Congress acts on 
federal acknowledgment and tribal membership.
    In 1954, Congress passed the Ute Partition Act (UPA), which 
authorized 490 Tribal members known as ``mixed-bloods'' to vote to 
terminate their Tribal status and relationship with the federal 
government. In the UPA, Congress took action in attempting to determine 
tribal membership of the ``mixed-bloods,'' and seventy years later, we 
are still dealing with the problems of unrecognized descendants 
attempting to interfere with our Tribal governance. These were 
preventable problems. The MOWA Act has no standards or minimum 
requirements for federal recognition and requires the Secretary of 
Interior to acquire up to 3,223 acres of trust land without any 
explanation. Congress neither has the staff, expertise, resources, or 
equipment to manage the recognition of Indian tribes equitably. The 
Department of Interior's (``DOI'' or ``Interior'') Assistant Secretary 
of Indian Affairs, Bryan Newland, confirmed our worries when he 
testified that the ``proposed legislation does not include any findings 
or information identifying facts or circumstances that would aid us in 
understanding the merits of the proposal (S. 3443).''
    Fortunately, Congress recognized this problem in 1975 when it 
created the American Indian Policy Review Commission (``Commission'') 
to bring fairness and legitimacy to the federal recognition process. 
Created from the recommendations of the Commission, Congress delegated 
the DOI--Office of Federal Acknowledgment (OFA) the management and 
regulation of federal recognition. OFA uses expert anthropologists, 
genealogists, historians, and attorneys to evaluate whether a 
petitioning group comprises descendants from a historical Indian tribe 
that has maintained existence to earn federal recognition. This 
structured process shields decisions from political influence or undue 
pressure and ensures equity, transparency, and consistency.
    Similar to our experience, the MOWA Act attempts to circumvent the 
OFA process and politicize tribal, federal recognition. The Mobile-
Washington County Band of Choctaw Indians of South Alabama sought 
federal recognition through the OFA's administrative process starting 
in 1988 and has been denied three times, in 1994, 1997, and 1999. In 
1988, MOWA petitioned OFA claiming to be a ``contemporary band of Mowa 
Choctaws of South Alabama who are descendants of full and mixed-blood 
Choctaws, Creeks, Cherokees, and Chickasaws who avoided removal West 
during the Indian removal in the 1830s.'' However, after a nine-year 
review by OFA's experts in anthropology, genealogy, historians, and 
attorneys who evaluated whether the group comprises any historical 
Indian tribe, OFA found almost no ancestry. OFA determined that 
[''There was no evidence in the substantial body of documentation 
submitted by the petitioner, or in the independent research by the BIA, 
to demonstrate Choctaw ancestry or any other Indian ancestry for 99 
percent of the petitioner's membership.''. . .``Rather, the evidence 
tended to disprove Indian ancestry''. . .``Thus, the petitioner fails 
to meet [mandatory] criterion (e), descent from a historical tribe.'']
    Again, similar to our Tribal experience, once the group failed to 
meet the standards set by OFA and exhausted their administrative 
remedies, they turned to litigation as a way into federal recognition. 
See, Mowa Band of Choctaw Indians v. United States of America, slip. 
op. 2008 WL 2633967 (S.D. Ala. 2008), case dismissed, Plaintiff was 
clearly on notice that it was not entitled to federal acknowledgment. 
Once again, when the group fails to meet the threshold of available 
options for federal recognition, they turn to politicians.
    These types of statements reinforce why the Tribe does not support 
the MOWA Act or any federal legislative recognition of Indian tribes. 
The standard for federal recognition is a high bar and justifiably so. 
If this bill were to pass, it would allow more groups who have not met 
the high standards or federal recognition to leverage politics 
regardless of the merits. For these reasons, the tribe opposes the MOWA 
Act.
Amendments Needed for the Department of Interior's Office of Federal 
        Acknowledgment
    As stated in our opening, we do not oppose the federal recognition 
of Indian tribes. However, we vehemently oppose Congressional 
recognition of Indian tribes and any process that diminishes or 
jeopardizes tribal sovereignty, which must be stopped, including 
legislative recognition. Otherwise, tribal sovereignty and federal 
recognition become meaningless if political influence can cast aside 
the federal recognition process recognizing the special and unique 
government-to-government relationship between the Federal government 
and an Indian tribe.
    With that being said, we did notice discrepancies with Assistant 
Secretary Newland's testimony. During the hearing, he stated on behalf 
of the administration that ``we recognize that Congress has plenary 
power over Indian Affairs and retains the authority to federally 
recognized tribes through legislation. The Department respects the MOWA 
Band's choice to seek recognition through the legislative process. At 
this time, the Department neither opposes nor supports this 
legislation.''
    We noticed something else the Assistant Secretary stated during a 
conversation with Vice-Chairman Lisa Murkowski. The Vice-Chairman asked 
Assistant Secretary Newland if ``it is Interior's position that in 
order to obtain federal recognition after a petition is denied, that 
the tribe has to come to Congress?'' Assistant Secretary Newland 
affirmed it was the position Interior maintained in 2015 under revised 
OFA regulations that groups who had been previously denied recognition 
should not be permitted to re-petition. Assistant Secretary Newland 
also added that Interior was sued twice after the 2015 revised OFA 
regulations went into effect in federal courts, and both were remanded. 
As a result of those cases, DOI is currently revising those 
regulations, although he could not give a specific timeline for 
regulations to be finished.
    Additionally, Chief Lebaron Byrd of the MOWA Band of Choctaw 
Indians testified that his tribe is not opposed to using the OFA 
process. Since DOI does not allow reconsideration after the 1997 
denial, Congressional action is the only option to recognize the MOWA 
Band. Chief Byrd noted that DOI has fundamentally changed the criteria 
necessary for recognition through OFA since the denial of their 
petition. Among the most important changes made is the date for 
recognition of existence as a tribal entity from the date of ``time of 
first contact'' to the year 1900. This change would make relevant the 
U.S. Census beginning in 1910, the first census that lists MOWA Band 
ancestors as being Indian. Chief Byrd believes this change in Interior 
regulations would make the MOWA Band a strong petitioner for a full 
review.
    As a result of these two conflicting patterns of federal 
recognition, we recommend that the Committee withhold any action on the 
MOWA ACT until DOI can issue its revised OFA Regulations. It seems as 
though the MOWA Band of Choctaw Indians recognizes and respects the OFA 
process; DOI-OFA regulations are forcing them to seek federal 
recognition through legislative means. As the Tribe respects the OFA 
recognition process, we believe it only fair that the MOWA Band be 
authorized to utilize the DOI-OFA process to grant federal recognition 
to Indian tribes.
Conclusion
    Tribal sovereignty is the right of tribal nations to make their own 
laws and be governed by them. Tribal sovereignty is not granted; it is 
recognized. We oppose any process that diminishes or jeopardizes tribal 
sovereignty and must be stopped, including legislative recognition. We 
want to maintain the high bar and standards it takes to become a 
federally recognized tribe. Without these high standards, tribal 
sovereignty and federal recognition become meaningless if political 
influence can cast aside the federal recognition process that 
recognizes the special and unique government-to-government relationship 
between the federal government and an Indian tribe.
    We recommend the Committee take no further action on the S. 3443 
MOWA Act. Instead, hold this administration accountable to tribes and 
request a full review of the DOI-OFA so that other tribes seeking 
federal acknowledgment can have a fair opportunity to become federally 
recognized.
    Thank you for your consideration of our testimony of the MOWA Act.
                                 ______
                                 
       The Agribusiness and Water Council of Arizona (ABWC)
                                                     April 14, 2022
Dear Chairman Schatz and Vice Chair Murkowski:

    The Agribusiness & Water Council of Arizona (ABWC) writes to thank 
you for considering S3308, the Colorado River Indian Tribes Water 
Resiliency Act of 2021, introduced by Arizona Senators Mark Kelly and 
Kyrsten Sinema.
    The ABWC is a non-profit association in Arizona that focuses its 
energies in representing the sustainable and efficient use of water for 
irrigated agriculture and agribusiness.
    We support the language that allows the Colorado River Indian 
Tribes (CRIT) to provide their water for beneficial uses such as 
leasing, underground storage, exchanging, etc., especially during this 
unprecedented time of extended drought in Arizona and the southwest. 
There were many stakeholders involved in the review and commenting on 
the proposed legislation you have before you.
    We fully support this collaborative effort that can benefit many 
water user constituencies in Arizona and encourage its swift 
advancement and passage.

        Respectfully,
                            Chris Udall, Executive Director
                                 ______
                                 
        Central Arizona Water Conservation District (CAWCD)
                                                     March 22, 2022
Dear Chairman Schatz and Vice Chair Murkowski,

    The Central Arizona Water Conservation District (CAWCD) writes 
today to thank the Committee for its consideration of S. 3308, the 
Colorado River Indian Tribes Water Resiliency Act of 2021.
    CAWCD is supportive of the new flexibility the legislation provides 
the Colorado River Indian Tribes (CRIT) within Arizona to lease, 
exchange or store underground a portion of CRIT's consumptively used, 
Colorado River allocation.
    CAWCD and CRIT have an established relationship working 
collaboratively on numerous projects over the last five years including 
the Pilot System Conservation Program, Arizona System Conservation, 
Intentionally Created Surplus and most recently the joint pilot study 
on irrigation efficiency. We appreciate the process established by the 
State of Arizona and CRIT to ensure Arizona stakeholders were provided 
an opportunity to review and comment on the proposed legislation and 
corresponding agreements.
    We see great promise with many more years of partnerships and 
collaboration ahead with CRIT. Consequently, CAWCD thanks the Committee 
for advancing the bill and we look forward to its swift final passage.

        Sincerely,
                    Theodore C. Cooke, DBA, General Manager
                                 ______
                                 
                             Business for Water Stewardship
                                                     March 28, 2022
Dear Chairman Schatz and Ranking Member Murkowski:

    As an organization that works with businesses that are invested in 
water security in the Southwest, and that partners closely with the 
Colorado River Indian Tribes (CRIT), Business for Water Stewardship 
writes today in support of S. 3308. Drought and climate threats 
continue to worsen each year, threatening Arizona's water security and 
economic future, and disproportionately impacting many Tribal 
communities. Last August, Secretary Haaland declared the first-ever 
Tier 1 shortage for Colorado River operations in the Lower Colorado 
River Basin. The Lower Basin shortage, which began on January 1 of this 
year, will result in a substantial cut to Arizona's share of the 
Colorado River.
    Policy must evolve and adapt to meet growing water security 
threats. By authorizing CRIT to assume greater agency over its Colorado 
River allotment, S. 3308 will allow them to engage in partnerships, if 
they so choose, that improve flexible management of Colorado River 
water within Arizona and the Lower Basin to help meet today's 
challenges.
    Meaningful participation by Tribes in the Colorado River Basin has 
been crucial to recent successes of river operations and programs. In 
2020 our organization supported a landmark water conservation project 
with the CRIT and the state of Arizona, which was one of the largest 
multi-sector collaborative drought response efforts ever achieved. With 
millions of private sector dollars invested, funding directly supports 
the CRIT and their comprehensive system conservation project developed 
as part of the Colorado River Drought Contingency Plan (DCP) 
negotiations that included Arizona and six other states that rely on 
water supply from the Colorado River. However CRIT faces further 
institutional, policy, and legal barriers to fully realizing and making 
use of their unique water rights.This legislation will empower the CRIT 
with flexibility to engage in water discussions and negotiations with a 
broader set of tools to use at their sovereign discretion.
    We strongly support the passage of this legislation as a way to 
further our collective goals of water stability and security in Arizona 
and the southwest.

        Sincerely,
  Todd Reeve, CEO, Bonneville Environmental Foundation; Co-
                    Founder, Business for Water Stewardship
                                 ______
                                 
Irrigation and Electrical Districts Association of Arizona, 
                                                Inc. (IEDA)
                                                     April 20, 2022
Dear Chairman Schatz:

    On behalf of the Irrigation & Electrical Districts Association of 
Arizona, Inc. (IEDA), we are writing in support of S. 3308, ``The 
Colorado River Indian Tribes Resiliency Act of 2021''. IEDA is a 
statewide association of public bodies that are involved in the 
delivery of water and electricity to agricultural, municipal and 
industrial customers throughout Arizona since 1962.
    Arizonans understand the importance of water, especially the 
members of IEDA, many of whom have been involved with water rights and 
supported agricultural endeavors for over 100 years. In that time, 
Arizona has seen both droughts and been deluged. Huge infrastructure 
has been built to prevent flooding, provide storage and transport 
supplies throughout Arizona, but we have never seen such a dire 
situation as today.
    Hydrologists say that the Colorado River is in a ``mega-drought''. 
This situation forced the Basin States to come together and develop a 
Drought Contingency Plan (DCP) to help mitigate the impacts. The 
Colorado River Indian Tribes (CRIT) participated in those negotiations. 
Putting the collective good above their own, they stored 50,000 AC-FT/
year for 3 years behind Lake Mead. The CRIT were willing to do more, 
but are currently limited by their settlement agreement.
    In such a time as this, Arizona needs access to every option 
available. Granting CRIT the ability to lease, exchange, and store 
their Colorado River water to other parties in the state would be 
beneficial to the CRIT, but also extremely valuable to Arizona.

        Sincerely,
                                                   Ed Gerak
                                 ______
                                 
               Roosevelt Water Conservation District (RWCD)
                                                     March 22, 2022
Dear Chairman Schatz:

    I am reaching out on behalf of the Board of Directors and the 
landowners of Roosevelt Water Conservation District (RWCD) to offer our 
strong support for S. 3308, ``The Colorado River Indian Tribes 
Resiliency Act of 2021''.
    Created in 1916, RWCD is a non-federal irrigation district 
organized under state statute. RWCD is located in southeastern Maricopa 
County and serves approximately 40,000 acres. We deliver water to a 
broad customer base including agricultural, residential, industrial, 
and municipal uses.
    RWCD has long been a steadfast supporter of settling community 
water claims. We are proud to have been a party to several federal 
water right agreements including the Salt River Pima Maricopa Indian 
Community, Fort McDowell Indian Community, White Mountain Apache Tribe, 
and the Gila River Indian Community settlements.
    The Colorado River Indian Tribes Resiliency Act of 2021 would 
authorize the Colorado River Indian Tribes (CRIT) to lease, exchange, 
and store their Colorado River water to other parties in the state. In 
addition to affirming CRIT's rights of use regarding their water, the 
act would allow them to participate more fully in discussions and 
agreements regarding the Colorado River and the shortages Arizona is 
facing. Finally, while allowing the CRIT greater control of their 
future, the act does not lessen any other right holders' claims to 
water along the Colorado River.
    RWCD strongly urges you to vote yes on S. 3308. We are happy to 
answer questions you have.

        Respectfully,
                          Shane M. Leonard, General Manager
                                 ______
                                 
        National Audubon Society/Environmental Defense Fund
                                                     March 23, 2022
Dear Chairman Schatz and Ranking Member Murkowski:

    We write today to express our appreciation to Senators Kelly and 
Sinema for leading efforts in Arizona to expand opportunities to 
address the serious impacts of climate change and drought in the State 
and Western United States and to offer our support for S. 3308. The 
bill expands the ways in which the Colorado River Indian Tribes (CRIT) 
can use and manage their Colorado River water rights, creating a new 
pathway in Arizona to mitigate drought and climate impacts.
    In particular we note that water conservation pursuant to this 
legislation could potentially support development of new native habitat 
on the Lower Colorado River, increasing the sustainability of Arizona's 
wildlife as well as the indigenous communities' cultural values of the 
Colorado River. These projects have the potential to confront the 
twenty-first-century challenges of increasing drought and water 
scarcity exacerbated by climate change.
    CRIT has a strong track record of participating in such programs, 
including the Pilot System Conservation Program, Intra-Arizona Drought 
Contingency Plan, and Lower Colorado River Multi-Species Conservation 
Program. But they have faced barriers in fully utilizing their water 
rights to support tribal economic sustainability and conservation 
efforts.
    This legislation, and its related agreements, would remove a 
critical barrier that CRIT faces in fully using their water rights by 
authorizing CRIT to lease, exchange, and store underground a portion of 
their consumptively used decreed Colorado River water allocation off of 
the reservation, within the Lower Basin of the State of Arizona. This 
will expand CRIT's ability to participate in innovative and flexible 
management partnerships and will provide benefits to CRIT, Arizona, and 
the environment.
    Authorizing CRIT to lease water off their reservation takes a step 
towards greater equity among water users, because other water users in 
Arizona generally have this right. We would support other proposals to 
allow off reservation water leases for Native American Tribes where 
these transactions are currently prohibited.

        Sincerely,
  Jennifer Pitt, Colorado River Program Director, National 
                                            Audubon Society

      Kevin Moran, Senior Director, Water Policy and State 
                        Affairs, Environmental Defense Fund
                                 ______
                                 
                                         Salt River Project
                                                   January 31, 2022
Dear Chairman Schatz and Ranking Member Murkowski:

    I am writing to share Salt River Project's (SRP) support for S. 
3308, the Colorado River Indian Tribes Water Resiliency Act of 2021, 
introduced by Arizona Senators Mark Kelly and Kyrsten Sinema.
    The Salt River Project is comprised of the Salt River Valley Water 
Users' Association and the Salt River Project Agricultural Improvement 
and Power District. SRP, formed in 1903, is the Phoenix metropolitan 
area's largest supplier of raw water, delivering more than 800,000 
acre-feet annually to municipal, urban and agricultural water users. 
SRP has a long history of successfully working with Native American 
communities in Arizona to quantify and help put to use their important 
water rights on and off their lands to improve the economies and 
general welfare of tribal communities. SRP is prepared to work with the 
Colorado River Indian Tribes in a similar fashion.
    The Colorado River Indian Tribes (CRIT or Tribes) hold significant, 
senior priority water rights from the Colorado River. S. 3308 will 
provide CRIT with the ability to do what many other Arizona Tribal 
communities can already do--utilize their Colorado River supplies for 
purposes of leasing, transferring or storing water outside the Tribes' 
reservation. This will provide the Tribes with the opportunity to 
improve the Tribes' economic well-being and improve the management of 
water supplies within the State of Arizona at a time when the West is 
in the midst of a decades-long drought that is coupled with increasing 
climate variability.
    SRP thanks Senators Kelly and Sinema for introducing the Colorado 
River Indian Tribes Water Resiliency Act of 2021, and their work to 
secure Arizona's water future. SRP is pleased to be part of a growing 
coalition of support CRIT has built, and we look forward to working 
with CRIT and other water interests across the State as this program is 
further developed.

    Support for swift approval of S. 3168, a bill to amend the White 
Mountain Apache Tribe Water Rights Quantification Act of 2010, 
legislation introduced by Arizona Senators Mark Kelly and Kyrsten 
Sinema.
    Passage of S. 3168 is necessary for the White Mountain Apache Tribe 
(WMAT) to complete an important water infrastructure project authorized 
in 2010. Unforeseen technical delays and costoverruns in planning and 
design have resulted in a need to revise the initial enactment of the 
WMAT settlement. S. 3168 provides a necessary deadline extension for 
the Tribe to complete the White Mountain Apache Rural Water System and 
Miner Flat Dam project. The legislation also authorizes the use of 
additional federal funds needed to complete the project.
    SRP is thankful for the dedication of Senators Kelly and Sinema to 
deliver this legislation for the Tribe, which will ultimately secure 
clean, reliable drinking water for Tribal members on the Fort Apache 
Indian Reservation, including the communities of Whiteriver, Fort 
Apache, Canyon Day, Cedar Creek, Carrizo and Cibecue.
    The Salt River Project is comprised of the Salt River Valley Water 
Users' Association and the Salt River Project Agricultural Improvement 
and Power District. SRP, formed in 1903, is the Phoenix metropolitan 
area's largest supplier of raw water, delivering more than 800,000 
acre-feet annually to municipal, urban and agricultural water users. 
SRP has a long history of actively working with Native American 
communities throughout the state to address concerns about water 
supplies, identify alternative supply options to meet demands, and 
collaborate on programs to resolve water resource conflicts.
    Much of the surface water supply delivered by SRP to its water 
users in the Phoenix metropolitan area originates in the White 
Mountains in eastern Arizona, which is also the homeland of the White 
Mountain Apache Tribe. Over the years, SRP has enjoyed a friendship and 
partnership with the Tribe on a number of initiatives including 
watershed management, forest restoration efforts, and STEM education. 
We look forward to S. 3168 being enacted and continuing this 
partnership as the WMAT drinking water infrastructure project is 
completed.
    SRP is thankful for Chairman Schatz and Vice Chairman Murkowski's 
leadership on the Senate Indian Affairs Committee, and attention to S. 
3168 and the White Mountain Apache Tribe.

        Sincerely,
        David C. Roberts, Associate General Manager, Water 
                                                  Resources
                                 ______
                                 
                                         Valley Partnership
                                                     March 21, 2022
Dear Chairman Schatz and Vice Chairwoman Murkowski:

    On behalf of Valley Partnership and its 350 Company Partners and 
almost 2,000 Members, advocating for responsible real estate 
development in Arizona, we thank you for the opportunity to provide 
comments in support of S. 3308 regarding the Colorado River Indian 
Tribe (CRIT) proposal for use of its decreed water rights off 
reservation. We want to congratulate all involved in this effort to 
make further use of the Tribe's Colorado River rights. It is an 
important milestone for the CRIT Tribal members, but also the off-
reservation water users in the State of Arizona.
    Valley Partnership believes in responsible growth and responsible 
growth is not found in reliance upon declining groundwater supplies. 
Responsible growth is based upon perpetual and sustainable supplies 
such as with use of the CRIT decreed water rights off reservation. We 
look forward to continuing to work with all involved in this historic 
effort and maximizing the benefits of this critical resource for all. 
We proudly support the legislation.
    Thank you for your consideration and please do not hesitate to let 
me know if you have any questions.

        Sincerely,
                              Cheryl Lombard, President/CEO
                                 ______
                                 
                                Water for Arizona Coalition
                                                     March 23, 2022
Dear Chairman Schatz and Ranking Member Murkowski:

    We write today in support of S. 3308, and appreciate Senator 
Kelly's leadership and foresight in introducing this legislation with 
Senator Sinema that will provide the Colorado River Indian Tribes 
(CRIT) with greater authority to use and manage their Colorado River 
water rights. We believe it is needed even more urgently than it was 
last year, when we first offered our support for this proposal. Drought 
and climate threats continue to worsen each year. Last week, NOAA 
issued its U.S. Spring Outlook, and for the second year in a row, 
forecasters ``. . .predict prolonged, persistent drought in the West 
where below-average precipitation is most likely.'' Last August, the 
Secretary of the Interior declared the first-ever Tier 1 shortage for 
Colorado River operations in the Lower Colorado River Basin. The Lower 
Basin shortage, which began on January 1 of this year, will result in a 
substantial cut to Arizona's share of the Colorado River.
    Policy must evolve and adapt to meet growing water security 
threats. By authorizing CRIT to assume greater agency over its Colorado 
River allotment, S. 3308 will allow them to engage in partnerships, if 
they so choose, that improve flexible management of Colorado River 
water within Arizona and the Lower Basin to help meet today's 
challenges.
    Meaningful participation by tribes in the Colorado River Basin has 
been crucial to the recent success of river operations and programs. 
However, many tribes face institutional, policy, and legal barriers to 
fully realizing and making use of their unique water rights.This 
legislation will empower CRIT with flexibility to engage in water 
discussions and negotiations with a broader set of tools to use at 
their sovereign discretion. We strongly support its passage.

        Sincerely,
      Chris Kuzdas, Arizona Program Manager, Environmental 
       Defense Fund & Co-Chair, Water for Arizona Coalition
 Kim Mitchell, Senior Water Policy Advisor, Healthy Rivers 
                        Program, Western Resource Advocates
       Todd Reeve, Director, Business for Water Stewardship
Haley Paul, Policy Director, National Audubon Society & Co-
                         Chair, Water for Arizona Coalition
Sinjin Eberle, Communications Director, Intermountain West, 
                                            American Rivers
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Brian Schatz to 
                           Hon. Amelia Flores
    Question 1. Arizona is facing severe drought conditions. How will 
S. 3308 affect the water supply for other water users in Arizona? 
Please provide specific examples of how S. 3308 will enable the 
Colorado River Indian Tribes (CRIT) to help themselves and other water 
users respond to drought conditions.
    Answer. The CRIT water is a new supply not currently available for 
use by anyone other than CRIT and with S. 3308 a portion of the CRIT 
water right may be available for water users in Arizona.
    We hold the first-priority water right in the Lower Basin. The 
Supreme Court held that our water rights are Present Perfected Rights 
because of their priority dates ranging from 1865 to 1917, all before 
the passage of the Boulder Canyon Project Act. The Supreme Court stated 
in Arizona v. California:

        ``If insufficient mainstream water is available [the current 
        shortage conditions]. . .then the Secretary of the Interior, 
        after providing for the satisfaction of present perfected 
        rights in the order of their priority dates without regard to 
        state lines [the CRIT water]. . .may apportion the amount 
        remaining available. . .'' [this was modified by the Colorado 
        River Basin Project Act] (emphasis added) (Arizona v. 
        California, 547 U.S. 150, 155, 2006; 376 U.S. 340, 342, 1964)

    We are also on the mainstream of the Colorado River and can deliver 
water to water users on the mainstream and through the Central Arizona 
Project (CAP) canal.
    The main supply of Colorado River water for use in Arizona is 
through the CAP canal. This water has a low priority date of 1968 the 
date of passage of the Colorado River Basin Project Act (CRBPA) 103 
years after CRIT's priority date. The CRBPA also subordinates the water 
contract for the CAP to all water use in California. (43 USCA  
1524(c).
Help for CRIT from Water Leasing
    Other tribes in Arizona have water leasing authority. They have 
benefitted financially from the increased revenue their water 
generates. We anticipate to economically benefit as well.
    Our governmental budgets depend on revenue from our enterprises. We 
have a small rural casino that was closed for over a year during the 
worst of the COVID pandemic, we have a few commercial leases and we 
have our CRIT Farms enterprise and we lease land with water for 
farming. The fluctuation in farm commodity prices affects our 
government operations.
    Our system conservation agreements return at least 30 percent more 
revenue per acre of farmland than we receive from farm commodities or 
leases accounting for the costs of fallowing and putting the land back 
into production. And, water agreements for system conservation or 
potentially water leases, do not have the risks associated with 
farming. This permits us to have more certainty in our budgets and the 
services we provide our people.
    A portion of our revenue from system conservation has been used to 
meet the 50 percent matching requirements for the WaterSMART grants 
that we have obtained to make improvements to the BIA owned and 
operated irrigation project that serves our farmland. We hope to 
implement additional conservation measures to improve the efficiency of 
this project to provide ``more crop per drop'' of water.
    We anticipate that leasing water will provide significantly more 
revenue than what we are paid for not using our water and leaving it in 
Lake Mead as system conservation, but we do not know the value of our 
water at this time.
    CRIT Ordinance #01-18 passed by our voters in January 2019 
authorizes us to pursue this legislation and provides that revenues 
from leasing will be used for ``housing for tribal members, improved 
health care, education, public safety, a new nursing home on- 
reservation, a new Cultural Center on-reservation, new on-reservation 
drug and alcohol treatment programs, inclusive of residential 
treatment, and litigation or other efforts to fight for, preserve, and 
fully maximize the use of all water rights due to CRIT.'' (CRIT 
Ordinance 01-18)
    Our water rights and our land are our most valuable and important 
assets. We have not had the financial means to fully utilize our water 
rights or our reservation land. These are our sovereign resources, and 
it is most importantly a matter of our sovereignty that we use our 
resources for the maximum financial return for our survival and our 
prosperity.
Water for Others in Arizona
    Example One: CRIT is uniquely situated to provide water for 
riparian habitat on the mainstream of the Colorado River. It is 
anticipated that shortages will cut the water deliveries downstream 
from Hoover Dam to an extent that certain reaches of the River will see 
reduction in habitat for endangered species. CRIT participates in the 
Multi-Species Conservation Program (MSCP) under the federal Endangered 
Species Act (ESA) permit and established the 1200 acre Aha Khav 
Preserve and an endangered fish hatchery on the Reservation. With this 
legislation, we can make our water available for use by the Fish and 
Wildlife Service at other locations along the River.
    It is a goal of our Council, and of mine personally, to save the 
Life of the River. By this I mean not just the flow of the water within 
the banks of the River, but the preservation of the plants and animals 
that depend on the flow of the water for their survival.
    Example Two: CRIT water may provide a drought supply to the water 
users whose supply is cut by the existing shortage criteria. A Tier 1 
shortage as provided in the 2007 Interim Guidelines plus the 
contributions from the Drought Contingency Plan currently reduce the 
amount of water delivered through the CAP by 512,000 acre-feet per 
year. Most of these cuts were anticipated and are mitigated by the 
Arizona DCP. And, Arizona has a plan for addressing more cuts by 
recovering water from the underground water storage facilities.
    However, the DCP mitigation expires at the end of 2022 and 
recovered groundwater that is used to replace CAP water is of a 
different quality and may require retrofitting water treatment 
facilities. The CRIT water can be delivered through the CAP and can 
provide water that is treatable by the same municipal water treatment 
plants already in place without modifications.
    At CRIT we have described our water as being a ``bridge'' supply 
for essential services until the time when technological advances make 
wastewater reuse, desalination, or possible importation of water, all 
of which are being discussed in Arizona, more readily available.
    Example Three: The United States, the State of Arizona through the 
Arizona Water Bank, and the Central Arizona Water Conservation District 
all have obligations to ``firm'' or replace CAP water that tribes 
agreed to accept as part of their settlements. Each of these firming 
obligations may draw upon water supplies stored in underground storage 
or in Lake Mead. Without knowing the future of climate change or the 
extent of the current 22-year drought, the CRIT water is a potentially 
valuable resource to meet these obligations to tribes. We could be paid 
for our first-priority water that then could be delivered as 
replacement water to other tribes.
Summary of Question 1
    CRIT plans to maintain an agriculture economy on the reservation 
and our voters emphasized the need to maintain our history and culture 
as farmers. The Tribal Council will determine the acreage to be 
fallowed to create reduced consumptive use to be available for off 
reservation uses. We do not know what this amount will ultimately be, 
but we currently fallow over 11,000 acres to provide 55,000 acre-feet a 
year for Lake Mead. Using the Arizona Department of Water Resources 
estimate that 3.5 households use one acre-foot per year, this is enough 
water to supply close to 200,000 households at current levels of 
municipal conservation in Arizona. ( https://new.azwater.gov/news/
articles/2021-19-04, accessed April 20, 2022)
    For all the help our water would be for water users in Arizona and 
our need for increased tribal revenue, the most important aspect of S. 
3308 is that it recognizes and supports our tribal sovereignty over our 
water rights.

    Question 2. Arizona Tribes play a critical role in water management 
and conservation along the Colorado River. What intertribal efforts 
have the CRIT engaged in to secure the water supply for future 
generations of water users?
    Answer. Each tribe has its own Indian reserved water rights that 
may still be unquantified or that may have been quantified in 
adjudications, like CRIT's, or through settlements. CRIT has not taken 
a position on any other tribe's water settlement. I am not sure what is 
meant by ``intertribal efforts'' by CRIT ``to secure the water supply 
for future generations of water users?'' One tribe cannot secure 
another tribe's water for future generations. It is my understanding 
that the United States has a policy that a federally reserved water 
right for one tribe is for its present and future use. One tribe's 
water right cannot be used to provide a future use for another tribe. 
With this explanation I will explain how we have engaged and helped 
other tribes and how CRIT water can help Arizona tribes in the future.
    The CRIT water used for system conservation that has been created 
through agreements with the State of Arizona, the Central Arizona Water 
Conservation District and Reclamation has left over 200,000 acre-feet 
of water in Lake Mead. We are in negotiations for additional system 
conservation water to be left in Lake Mead as part of the 500+ Plan. 
All of the system conservation water helps those tribes that have 
rights to water delivered through the CAP according to their agreed 
upon settlements making it less likely that their water will be shorted 
or cut.
    We have also had preliminary conversations with representatives of 
Reclamation that when tribal CAP water is cut according to its priority 
and the terms of the CAP contracts, CRIT is willing to enter agreements 
with Reclamation to help firm those supplies for which the United 
States has this obligation.
    CRIT is a member of the Inter Tribal Council of Arizona, the Ten 
Tribes' Partnership and the loosely organized 5 Tribes Coalition (this 
group includes the other four tribes with water rights adjudicated in 
the case of Arizona v. California at the same time as CRIT's). This 
legislation, S. 3308 has been shared with all of the tribes of these 
organizations and we have had one-on-one conversations with many of 
them.
    We are also active participants in the National Congress of 
American Indians (NCAI) that passed a resolution supporting the 
principles of S. 3308. NCAI Resolution PDX-20-058 states that tribes 
should have sovereignty over their water rights and the authority to 
lease water that was previously consumptively used on their 
reservations.
    I will now address the opposition statement to S. 3308 that was 
submitted by Stephen Roe Lewis, Governor of the Gila River Indian 
Community (GRIC).
    The GRIC are the largest marketer and lessor of water in Arizona 
and have been since 2004. Governor Lewis filed a letter of opposition 
to the draft legislation with the Arizona Department of Water Resources 
following the public meetings in December 2020. He sent letters of 
opposition to the sponsors of S. 3308, submitted testimony to this 
committee and most recently sent out a press release to many tribal 
leaders expressing the GRIC opposition. Governor Lewis did not accept 
any of the multiple invitations from our former chairman or from me to 
talk about their opposition.
    Governor Lewis's testimony to this committee recounts the status of 
the basin because of the more than 20 years of drought and changes to 
precipitation and weather patterns. We live on the River and we know 
and understand these impacts. We are farmers and see the effects of 
drought, higher temperatures, and more wind every day on our 
reservation.
    The current shortages required by the 2007 Interim Guidelines and 
the agreed upon DCP contributions cut the water to be delivered by the 
CAP, the source of about half of the opposing tribe's water rights. We 
understand that the GRIC supply will be cut. We are doing what we can 
for Lake Mead by leaving 55,000 acre-feet in the Lake this year, but S. 
3308 does not increase or affect the cuts to lower priority water like 
some of the water contracted to the GRIC.
    We have shared drafts of our legislation and the accompanying 
agreements have been shared broadly throughout the Colorado River 
basin, including among the leaders of the tribes in the basin and with 
the Governor's representatives of the states, major water users, and 
the general public, in formal public meetings and informally at 
meetings and conferences. The GRIC are the only entity that is opposed 
to S. 3308.
    The CRIT are uniquely situated, if S. 3308 enters into law, to 
mitigate some of the cuts to water delivered by the CAP by providing 
the only renewable water supply that can be delivered through the CAP 
as replacement water. As discussed in response to your first question, 
our water can be a substitute supply for river habitat, for cities and 
towns, and to firm tribal supplies.
    The CRIT Water Resiliency Act, S. 3308 will not alter or impact 
other tribal water rights. The leasing, exchange, or storage of our 
water rights will not use water that would otherwise be available to 
any other tribe.
    The CRIT support each tribe's sovereignty over their land, water, 
and other natural resources. We cannot speak on their behalf and will 
not infringe on their own sovereignty by attempting to do so.

    Question 3. Please explain whether and how leasing CRIT's water 
will affect the water level of Lake Mead.
    If this legislation is approved and CRIT enters a lease, exchange 
or storage agreement for use of our water off the reservation the water 
level of Lake Mead will not be affected. We believe that there is some 
confusion about the requirements of S. 3308 and how mainstream water 
rights are accounted for by Reclamation.
    This legislation, S. 3308, requires that all water made available 
for off-reservation use come from reduced consumptive use on the 
reservation. For every acre-foot of water included in a lease there 
will be a reduction of an acre-foot of use on the reservation. This is 
confirmed in Sections 4(a) and 5(a) of S. 3308.
    CRIT has reduced on-reservation consumptive use to create more than 
200,000 acre-feet of system conservation water that has been left in 
Lake Mead since 2016. Reclamation has verified our on-reservation land 
fallowing program the reduces consumptive use on the Reservation to 
make sure there is not any additional water delivered to CRIT or a 
detrimental impact to Lake Mead. Reclamation will also verify the 
reduced consumptive use on-reservation for all off-reservation uses 
such as leases and system conservation in the same way they do for all 
mainstream water users.
    Thank you for these questions and the opportunity to provide 
answers. Please let me know if you or other committee members have 
additional questions.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Brian Schatz to 
                           Hon. Bryan Newland
    Question 1. Assistant Secretary Newland, you testified that the 
Department previously denied the MOW A Band's petition for federal 
recognition. Please describe in detail the bases for the Department's 
decision.
    Answer. On May 19, 1983, the MOWA Band submitted a letter of intent 
to the Department of the Interior (Department) petitioning for federal 
recognition under 25 C.F.R. Part 83 (Part 83). The Department evaluated 
the MOWA Band's petition under the prior regulations at 25 C.F.R. 83 
.10( e) which provided for an expedited finding on a single criterion 
when the documented petition and response to the technical assistance 
letter indicates that there is little or no evidence that the 
petitioner can meet the mandatory criteria.
    On January 5, 1995, the Department issued a proposed finding that 
MOW A failed to meet the criteria for Federal acknowledgment as an 
Indian Tribe (see 60 Fed. Reg. 1,874 (January 5, 1995)). The Department 
found that MOWA was able to show only one percent of its members 
descended from a historical Indian Tribe (meaning 99 percent could not 
show descent from a historical Indian Tribe) and therefore, was not 
able to satisfy the criteria under  83.7(e), requiring demonstrated 
descent ``from a historical Indian tribe or from historical Indian 
tribes that combined and functioned as a single autonomous political 
entity'' 25 CFR  83.7(e) (1994).After reviewing comments on the 
proposed finding, the Department issued a final determination that MOW 
A did not meet the mandatory criteria for Federal acknowledgment (see 
62 Fed. Reg. 67,398 (December 24, 1997)).
    In April 1998, MOW A appealed for reconsideration before the 
Interior Board of Indian Appeals (IBIA). In August 1999, the IBIA 
upheld the negative final determination and referred one issue outside 
IBIA' s jurisdiction to the Secretary of the Interior for 
reconsideration. The Secretary of the Interior declined to order 
further reconsideration to the Assistant Secretary--Indian Affairs, 
making the negative decision final and effective for the Department on 
November 26, 1999. The MOW A thoroughly exhausted its administrative 
remedies before the Department.
    In 2007, MOWA sought remedies through an Administrative Procedure 
Act complaint filed in the United States District Court for the 
Southern District of Alabama. In July 2008, the District Court found 
that MOW A's ``claims were filed beyond the six-year statute 
oflimitations and are therefore barred.'' The District Court ordered 
that the case be dismissed. The MOWA made no further appeal.
    Having exhausted both administrative and judicial remedies, 
Congress is the only route available for MOWA to seek Federal 
recognition.
    The Department's decisions and associated documents regarding MOWA 
are available on the Office of Federal Acknowledgement's website at 
https://www.bia.gov/as-ia/ofa/086-mowach-al, and provides greater 
detail for the bases of the Department's negative decisions regarding 
MOWA.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. John Hoeven to 
                           Hon. Bryan Newland
    Question 1. In 2016, Congress enacted the Native American Tourism 
and Improving Visitor Experience (NATIVE) Act. Can you discuss the 
implementation of the NATIVE Act, including whether it is helping 
promote tourism in Indian Country?
    Answer. The Office of Indian Economic Development (OIED) has 
implemented the NATIVE Act's guidance and support for Tribal tourism 
efforts as directed in Section 2 of the Act.
    Starting in 2019, OIED supported Tribes across Montana, Virginia, 
South Dakota and North Dakota. OIED NATIVE Act efforts have also 
supported Tribal organizations and Native Hawaiian Organizations (NHO) 
through our tourism grant opportunities and through our NHO cooperative 
agreements. The following efforts supported diverse tourism strategies 
throughout 2019-2022:

   Cooperative Agreement between the Bureau of Indian Affairs 
        Division of Transportation and the American Indian Alaska 
        Native Tourism Association;

   Contract with George Washington University to promote 
        tourism to Native locations in North Dakota and South Dakota;

   Cooperative agreement with Virginia Tech to promote inter-
        Tribal tourism projects in Montana and Virginia;

   Cooperative agreement with the Native American Food 
        Sovereignty Alliance formerly Taos Community Economic 
        Development Corporation;

   Cooperative agreement with Strongbow Strategies (a Native 
        vendor) for operation of the Sheep Ranch and Woolen Mill 
        Projects to promote cultural tourism at Navajo Nation;

   Two Native Hawaiian Cooperative Agreements;

   Technical Assistance-NATIVE Act; and

   Indigenous Tourism Collaboration of the Americas.

    In 2021, OIED implemented our Tribal Tourism Grant Program which 
provides low-risk feasibility study and business plan grant funds to 
entertain tourism options. OIED is now transitioning from regional 
approaches to comprehensive support across Indian Country expanding 
financial and technical assistance opportunities to reach more Tribes.

    Question 2. Are there any additional adjustments that should be 
made to make the NATIVE Act as effective as possible?
    Answer. To gain more equitable economies for Native American Tribal 
Nations, OIED seeks to open/widen the process for Tribal tourism 
financial awards across all regions by posting a four-zone designed 
solicitation on grants.gov for the Tourism Memorandum of Agreement 
(MOA) rather than awarding another five-year cooperative agreement with 
one entity. Announcing this zone-designed availability will more fairly 
allow Native American communities, Indian Tribes, Tribal organizations, 
and Native Hawaiian organizations, to submit proposals for how they can 
more fully engage in Native American and Native Hawaiian tourism 
technical assistance, ultimately increasing their economic growth. When 
awarded, the Native Act technical assistance funds will support 
regional jobs, build economies, and elevate living standards and more 
equitably provide opportunities for Economic Development technical 
assistance approaches that are culturally relevant and regionally 
specific across Indian Country. This process will enable OIED to 
provide Tribal entities an opportunity to apply for and implement the 
important Tribal tourism technical assistance more efficiently and 
effectively across Indian Country, with the expected emphasis on Tribal 
communities. To support more MOA expectation flexibility, OIED 
recommends the Native Act be modified to support the MOA broadened 
approach providing Tribal tourism technical assistance.

    Question 3. What are some of the benefits that tourism can bring to 
tribes, including potential opportunities for economic development and 
job creation?
    Answer. Tribal tourism has the potential to provide long-lasting 
economic sustainability and empower communities to define the scope of 
tourism activities on Tribal lands and to tell their stories. Tourism 
can provide jobs and economic vitality, opportunities to protect and 
preserve natural resources and cultural history for generations to 
come.

    Question 4. What are your recommendations on other ways that BIA 
and Congress can assist Tribes in promoting and growing tourism in 
Indian Country?
    Answer. Cross agency collaboration is imperative to successful 
efforts. This would prevent federal funding duplication and ensure 
programmatic efforts are jointly defined.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Ben Ray Lujan to 
                           Hon. Bryan Newland
    Question 1. I can see that the S. 3308, Colorado River Indian 
Tribes Water Resiliency Act, is potentially a long-range tool for 
developing flexible water supplies in the future, but we are in the 
middle of a mega drought now, the crisis is on us. Mr. Newland, what do 
you think our most important focus should be in the short term?
    Answer. The Colorado River is experiencing prolonged drought, low 
runoff conditions, and depleted storage in the Basin's two largest 
reservoirs, Lake Powell and Lake Mead. These conditions are causing 
unprecedented challenges and the best available science indicates that 
the effects of climate change will continue to adversely impact the 
Basin. As requested in the 2021 Tribal letter, Secretary Haaland, along 
with senior Department of the Interior (Department) and Bureau of 
Reclamation (Reclamation) leadership, met in person on March 28, 2022 
with Tribal leaders. The Secretary and the Tribal leaders had a 
detailed discussion regarding the risks and challenges facing the 
Colorado River Basin and committed to transparency and inclusivity for 
the Tribes when work begins on the post-2026 operational rules. There 
are a number of urgent issues facing the Basin and following the 
meeting with the Secretary, on April 8, 2022 Assistant Secretary for 
Water and Science Tanya Trujillo sent a letter to Tribal leaders of the 
30 Colorado River Basin Tribes expressing concerns that should the 
hydrology continue to decline this year, it is possible that Lake 
Powell could drop below elevations at which hydropower can be 
generated, which would place the infrastructure to make deliveries to 
downstream users at risk. Reclamation has worked diligently to 
regularly communicate with Tribal leaders and their staff regarding 
these concerns and actions being proposed to mitigate these risks in 
the short-term. Indian Affairs is committed to working with Reclamation 
and other partners in the Department to work with the Basin Tribes who 
are impacted by the drought.

    Question 2. Mr. Newland, what are the agency's plans over the next 
two to three years to engage Basin Tribes in the development of the 
post-2026 rules?
    Answer. It is essential that meaningful Tribal engagement inform 
the development of the successor operational rules to the 2007 Colorado 
River Interim Guidelines, which expire in 2026. These operational rules 
will be developed through an extensive, multi-year public process 
pursuant to the National Environmental Policy Act (NEPA) that is 
anticipated to begin in early 2023. Staff at Reclamation are currently 
working with Tribal representatives to develop a structure for 
engagement in the process that will have broad Tribal acceptance and on 
a plan to build Tribal technical capacity and provide technical 
assistance to support their participation in the process. Additionally, 
Reclamation, in coordination with other offices and bureaus in the 
Department, including Indian Affairs, intends to meet with each of the 
30 Basin Tribes to further understand each Tribe's particularized 
interest in the process, their desire to be engaged, and how they would 
like that engagement to occur.

    Question 3. Mr. Newland, after the March roundtable with Tribal 
leaders that took place in Albuquerque, when will the Department begin 
formal government-to-government consultations with Basin Tribes on the 
next framework for the long-term management of the Colorado River 
system?
    Answer. The process to develop the post-2026 operational rules is 
anticipated to begin in early 2023. The Department communicates 
regularly with the Basin Tribes with respect to the timing of this 
process and is actively working with Tribal representatives to develop 
a structure for Tribal engagement in the process. Formal government-to-
government consultation can occur at any point depending on the Tribe's 
request, but will also take place at the appropriate NEPA milestones 
throughout the process.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. John Hoeven to 
                            Marvin Figueroa
    Question 1. Can you briefly discuss the importance of having access 
to accurate public health data?
    Answer. Public health depends on timely, accurate, and usable data 
to prevent outbreaks and reduce disease burden; support public health 
recommendations that guide individual, clinical, community and public 
health decisions; and forecast disease burden trajectories and 
projections to guide prompt public health and policy decisions and 
actions.

    Question 2. What specific impacts are there to Indian Country when 
public health data reporting is not accurate or complete?
    Answer. We recognize the importance of having accessible, timely, 
and accurate data for making decisions about how to protect and improve 
the health of American Indian/Alaska Native (AI/AN) communities. Our 
goal is to ensure Tribal Epidemiology Centers (TECs) and federally 
recognized AI/AN Tribes (Tribes) have access to the data they need to 
the extent practicable. For example, the Centers for Disease Control 
and Prevention (CDC) is working directly with Tribes, TECs, Tribal 
partners, and national public health partners such as the National 
Indian Health Board, National Council of Urban Indian Health, and the 
Council of State and Territorial Epidemiologists to educate data users 
about how to access and analyze public health data, including the best 
available resources with demographic information on AI/AN populations.
    The entire public health ecosystem faces challenges around data 
collection, timeliness, and completeness. Within HHS, CDC is working--
through the data modernization initiative--to make targeted investments 
in public health data infrastructure to improve the quality and 
accessibility of data across the public health system. CDC is committed 
to continuing to work with Tribes, TECs, and state and local public 
health authorities to improve access to public health data. Improving 
the availability of data is a public health system effort, and all 
public health entities will need to work together to enhance the 
quality, completeness, and availability of public health data.

    Question 3. How will the Tribal Health Data Improvement Act help 
close gaps in the availability of public health data?
    Answer. The Tribal Health Data Improvement Act proposes to expand 
access to federal health and public health data, including the addition 
of Indian Tribes and Tribal organizations as authorized data 
recipients. However, there are existing statutes that already authorize 
access to such data for the Indian Health Service (IHS) and TECs, and 
this is sustained in the proposed legislation. Expanding access to 
include Indian Tribes could address gaps in data access, depending upon 
Tribal capacities to access, analyze, and interpret or use such data. 
However, clarification is needed regarding how data access for 
unspecified `Tribal organizations' could address data gaps.
    HHS supports the objectives of the Tribal Health Data Improvement 
Act and will continue to work with this Committee on efforts to improve 
data protection and privacy provisions in the legislation as it moves 
forward. In line with these objectives, HHS offers the following 
recommendations on this bill:
    HHS has significant concerns that the bill's data protection and 
sharing provisions are insufficient and could result, without 
appropriate protections in place, in the release of health and public 
health data to entities with no suitable public health or related 
authority to access these data. Release of such data potentially 
violates federal laws that may restrict the disclosure of certain 
information. For instance, the data may directly or indirectly identify 
an individual or the data may be protected from disclosure by another 
applicable federal law. Further, one Tribe could request the data 
relating to another Tribe. The bill as written provides broad access to 
health and public health data collected by HHS from states. HHS and its 
agencies adhere to stringent privacy practices to protect this data on 
individuals to prevent misuse or inappropriate unauthorized disclosure. 
The bill does not define the scope of data Tribes or other entities can 
request or how that data could be used. The bill also lacks clear 
authority to withhold data that are exempt from the Freedom of 
Information Act.
    Additionally, HHS strongly recommends that ``Tribal organizations'' 
be struck throughout the legislation. The bill's definition of ``Tribal 
organizations'' could be interpreted broadly, leading to an exponential 
number of entities requesting data that have no Tribal governmental 
role or specified health functions. By disseminating health and public 
health data to any Tribal entity that lacks a public health role, there 
is an inherent risk that the data may be misused, re-released with 
identifiable information, or used for non-public health purposes, which 
goes against the intent of the proposed legislation. The significant 
implementation challenges of providing data to any type of Tribal 
organization could undercut the key purpose of the legislation-to 
provide federally recognized Tribes and TECs timely and appropriate 
access to data that pertains to a Tribe's members or AI/AN communities 
served by a TEC.
    Finally, the bill proposes to improve the quality of various public 
health data sources for AI/AN communities, including vital statistics. 
Mechanisms include consultation to gain Tribal input, entering into 
funding agreements with Tribes and Tribal organizations, etc., and by 
encouraging States to improve how they collect AI/AN health and public 
health-related data. These efforts may help address data and data 
quality gaps for AI/ANs within existing or envisioned data systems. 
However, HHS would encourage this committee to consider options to 
strengthen the language for ``encouraging'' states to improve their 
processes.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Ben Ray Lujan to 
                            Marvin Figueroa
Tribal Health Data Improvement Act
    In 2010, Congress enacted the Patient Protection and Affordable 
Care Act (ACA), which permanently reauthorized the Indian Health Care 
Improvement Act (IHCIA). In addition to designating Tribal Epidemiology 
Centers as public health authorities, IHCIA allows them access to data 
held by the secretary of HHS. IHCIA states that the Secretary, ``shall 
grant to each epidemiology center . . . access to use of the data, data 
sets, monitoring systems, delivery systems, and other protected health 
information in the possession of the Secretary.''
    In 2020, the Centers for Disease Control and Prevention (CDC) 
turned down Tribal Epidemiology Centers' requests for data that the 
agency made freely available to states, despite Tribal Epidemiology 
Centers being entitled to this data under federal law.
    New Mexico's Tribal Epidemiology Center and Tribes, like those 
around the country, continue to experience great difficulties in 
accessing CDC data and receiving it in a timely manner. Despite these 
hurdles, Tribal Epidemiology Centers have used available 
epidemiological data to monitor the spread of COVID-19 during the 
pandemic and have conducted other analyses that support public health 
in Natives communities. However, limited data access and delays 
continue to hinder their ability to provide Native communities and 
Tribes with meaningful information needed for critical public health 
decisionmaking.
    In 2020, I took action and joined House Energy and Commerce 
Committee Members to introduce the Tribal Health Data Improvement Act, 
which reaffirms that Tribal public health authorities are entitled to 
access federal public health data.
    On June 17, 2021, I criticized the Trump administration for its 
disparate treatment of Tribal Epidemiology Centers during a hearing of 
the House Committee on Energy and Commerce's Subcommittee on Health. In 
response to my questioning during a full Energy and Commerce Committee 
hearing on June 23, CDC Director Robert Redfield committed to sharing 
COVID-19 data with all 12 Tribal Epidemiology Centers.
    On July 1, 2021, I also signed a bipartisan letter to Director 
Redfield and the Health and Human Services Secretary Alex Azar 
requesting information on CDC's policies and practices to ensure Tribal 
Epidemiology Centers have access to all public health surveillance 
data, as required by law. We must not forget Tribes and Tribal 
Epidemiology Centers are entitled to COVID-19 data, but they also have 
a right to access pre-COVID-19 data as well.

    Question 1. Mr. Figueroa, what progress has the Centers for Disease 
Control made in providing Tribes and Tribal Epidemiology Centers with 
both COVID-19 and pre-COVID-19 data?
    Answer. HHS is committed to continue to engage with TECs to ensure 
that they have access to COVID-19 vaccination and line-level case 
surveillance data through HHS Protect, which includes data from the 
Vaccine Adverse Event Reporting System (VAERS). For example, since July 
2020, CDC has provided all 12 TECs access to the COVID-19 case 
surveillance data. In late 2020, CDC began the process to transition 
access to the datasets to HHS Protect. In HHS Protect, the datasets are 
updated daily. In addition, the TECs have access to other COVID-19 
related data collected by HHS's various operating divisions.
    In addition, CDC continues to directly engage TECs to provide 
technical assistance regarding access and analysis of COVID-19 data. 
CDC staff assigned to work on COVID-19 case surveillance data 
communicate directly with TECs by answering inquiries, participating in 
TEC Director calls, and sharing information about the data. Examples of 
previous technical assistance include that CDC staff held several calls 
with TECs, both one-on-one and group calls to answer questions and 
support use of the data. In addition, through CDC's COVID-19 Emergency 
Operations Center's State, Tribal, Local and Territorial Task Force's 
Tribal Support Section, additional technical assistance was provided 
including during meetings and by email.
    From FY 2020-2021 CDC provided approximately $153 million to 346 
Tribal recipients through the Supporting Tribal Public Health Capacity 
in Coronavirus Preparedness & Response grant. During the last two 
years, CDC has provided more than $3 million in data modernization 
funds directly to Tribal recipients. These projects seek to: improve 
access to data; modernize infrastructure for data collection, 
management, and analysis; and expand data skills among the public 
health work force.
    CDC has also engaged TECs through the Council of State and 
Territorial Epidemiologists' (CSTE's) Tribal subcommittee to both share 
what COVID-19 data are available and guide the TECs on how to access 
those data. Additionally, CDC has used this mechanism to allow TECs to 
discuss how data sharing efforts for COVID-19 and public health data 
can be improved.
    CDC is leading efforts to work with Tribal partners to support 
Tribes' and TECs' access to public health data they need to respond to 
COVID-19, and to build the critical infrastructure and capacity needed 
to respond to the broader health challenges facing AI/AN communities.

    Question 2. Mr. Figueroa, what barriers do the Centers for Disease 
Control (CDC), Indian Health Service (IHS), and the Department of 
Health and Human Resources (HHS) face in providing the data they are 
legally required to share with Tribal health authorities? Please be 
specific.
    Answer. The United States has a highly fragmented and decentralized 
system of health data collection. Consequently, CDC is reliant upon 
inconsistent reporting from states, localities, territorial, Tribal, 
and health providers for COVID-19 data. Except in limited 
circumstances, much of this data is shared on a voluntary basis with 
CDC, which can result in CDC receiving incomplete data. In addition, 
CDC enters into individually negotiated data use agreements with states 
that outline the allowable expected uses of the data in relation to a 
particular purpose. CDC must balance the use of data provided under 
such agreements with how this data may be shared, released, and 
maintained under applicable federal laws.
    HHS values the government-to-government relationship and 
partnership with Tribes and other Tribal entities, including TECs, and 
is committed to continued engagement with them to ensure that we 
understand their data needs. HHS works to ensure that the Tribal 
entities have secure access to the data and information needed to 
protect their jurisdictions, as permitted by federal law.
    Federal, state, and local laws shape the legal landscape 
surrounding the collection, sharing and use of health information for 
public health purposes, including addressing legal issues concerning 
privacy, confidentiality, security, and consent. Understanding both 
legal authorities and challenges to public health practice is critical 
to ensuring the effective and appropriate use of health information, 
safeguarding legal rights and obligations, and promoting the prevention 
of disease and injury in the U.S. population.
    The entire public health ecosystem faces challenges around data 
collection, timeliness, and completeness. Case reports for notifiable 
diseases, such as COVID-19, are reported to CDC from state health 
departments, and state and local health departments vary widely in 
their ability to receive, ingest, and report data. Throughout the 
pandemic, many health departments have relied on antiquated data 
systems. Additionally, state and local health departments face steep 
workforce challenges, often lacking critical staff required to compile 
data.
    The public health data system is complex, and although states 
mandate the reporting for around 120 conditions, the sharing of case 
data to CDC is voluntary. Currently, CDC lacks authority to compel 
direct reporting from health care entities, except in limited 
circumstances.
    CDC is committed to continuing to work with TECs, and state and 
local public health authorities to improve access to public health 
data. Improving the availability of data is a whole of public health 
system effort. All public health entities will need to enhance the 
quality, completeness, and availability of public health data across 
the system.
    IHS has long-established data sharing practices with TECs using the 
IHS Epidemiology Data Mart (EDM). Since 2012, TECs have electively 
exercised data sharing agreements with the IHS under this protocol, 
which permits broad access to IHS electronic health record (EHR) data.
    Like the broad issues mentioned above, the IHS data infrastructure 
is fragmented due to the design of the Resource Patient Management 
System (RPMS) EHR, an aging technology foundation that is listed on the 
Government Accountability Office (GAO) Report of Legacy Systems as one 
of the oldest systems in HHS. Each health system, Tribe, or facility 
stores its data locally. There are currently no statutes that compel 
Tribes, counties, or states to report data to IHS. This directly 
impacts the completeness of data held by the agency. The IHS Health IT 
Modernization Project seeks to redesign the RPMS Health IT 
Infrastructure to improve data sharing, interoperability, and align 
with industry standards. The modernization effort will enable IHS, 
Tribal, and Urban partners to mitigate future data integrity and 
reporting delays evident in the current Health IT Infrastructure. These 
challenges often require facility, area, Tribal, and headquarters staff 
to invest significant labor resources to report, validate, and correct 
data submitted for testing, surveillance, and vaccine reporting. 
Despite these challenges, IHS, Tribal, and urban partners were able to 
quickly stand up COVID-19 testing surveillance and create systems to 
report COVID-19 vaccine administration data.
    Additionally, there are restrictions on the disclosure and use of 
data that pertain to diagnosis, treatment, or referral of substance use 
disorder (SUD) health encounters, including those originating from 
health care facilities operated by the IHS, Tribes, Tribal 
Organizations, or Urban Indian health facilities. These restrictions 
are stipulated in section 543 of the Public Health Service Act, 42 
U.S.C. 290dd-2, and further clarified in the Confidentiality of 
Substance Use Disorder Patient Records Regulations promulgated by the 
Substance Abuse and Mental Health Services Administration (SAMHSA) at 
42 C.F.R. Part 2 (Part 2). Part 2 regulations serve to protect the 
confidentiality of patient records created by federally assisted 
programs for the treatment of SUD. These requirements directly impact 
how the IHS can share such data, including with TECs via required 
redactions to Epidemiology Data Mart data.

    Question 3. Mr. Figueroa, what specific obstacles exist to HHS 
sharing public health data with Tribal governments and Tribal 
Epidemiology Centers? Is this a matter of data infrastructure, 
interoperability, privacy assurance, or some other issue?
    Answer. As noted above, the entire public health ecosystem faces 
challenges around data collection, timeliness, and completeness, and 
these challenges have impacted Tribal governments and TECs. Data 
infrastructure, interoperability, and privacy assurances all play a 
role in the challenges around public health data reporting, collection, 
sharing, and dissemination.
    The GAO released a report on March 4, 2022, that discussed these 
challenges and recommended that IHS, CDC, and HHS should take specific 
steps to ensure TECs have access to the IHS and CDC epidemiological 
data. HHS concurs with these recommendations and is working to 
implement them.

    Question 4. Mr. Figueroa, what are the CDC's and IHS's current 
procedures for reviewing Tribal Epidemiology Center requests for public 
health data? Does the agency have standardized guidelines for reviewing 
these types of requests and a timeline by which it needs to respond?
    Answer. CDC is examining ways to improve data practices in 
collaboration with Tribes, TECs, and state health departments. Each 
data system is unique in terms of data ownership; applicable laws and 
policies that govern the data, its use and sharing; applicable data use 
and sharing agreements; and data content. Typically, CDC does not 
directly collect these data; instead, CDC aggregates the data supplied 
by state, Tribal, local, and territorial public health authorities. In 
some cases, CDC analyzes datasets procured from private entities to 
understand disease trends. As such, CDC must work with those partners 
to consider the best process to share data on a per dataset basis.
    Because each data system is different, the current process for 
requesting other public health data is for TECs or Tribal governments 
to request the data from the CDC program managing the relevant dataset 
or data system. CDC's general approach is to share data to the greatest 
extent possible while protecting privacy, adhering to federal 
applicable laws, and taking into consideration data sharing agreements 
for all requestors, including TECs and Tribes. Examples of CDC data 
sharing policies and guidance include:

   under HIPAA Tribal Epidemiology Centers Designated as Public 
        Health Authorities under the Health Insurance Portability and 
        Accountability Act of 1996 (HIPAA)--This CDC Public Health Law 
        Program brief provides an overview of TECs and the amendment to 
        the Indian Health Care Improvement Act (permanently 
        reauthorized by the Affordable Care Act), which designated 
        these centers as public health authorities for purposes of 
        (HIPAA). The issue brief further outlines the impact of this 
        designation under HIPAA.

   CDC's National Center for Health Statistics (NCHS) provides 
        guidance to researchers, including those within TECs, on how to 
        access NCHS's data. See NCHS's Resources for Researchers, which 
        includes links to NCHS guidance on its data release policy and 
        data user agreement.

    IHS has guidance specific to data sharing with TECs described in a 
Tribal Leader Letter \1\ and accompanying IHS Data Sharing Contract 
template \2\ released in 2012. These guidelines provide a head start 
for establishing TEC access to the IHS Epidemiology Data Mart (EDM), 
which includes EHR data derived from the IHS National Data Warehouse.
---------------------------------------------------------------------------
    \1\ Available at: https://www.ihs.gov/sites/newsroom/themes/
responsive2017/display_objects/2012_Letters/05-04-
2012%20DTLL%20Data%20Sharing%20Contract.pdf
    \2\ Available at: https://www.ihs.gov/sites/newsroom/themes/
responsive2017/display_objects/2012_Letters/05-04-
2012%20DSA%20Template.pdf
---------------------------------------------------------------------------
    TEC data requests that cannot be satisfied through the EDM are 
reviewed on a case-by-case basis, which routinely includes review for 
human subject protections considerations, privacy review, legal review, 
and ultimately iterative development of a tailored data use agreement 
between IHS and the requestor that guides the sharing and use of IHS 
data while also satisfying project goals.
    In its report, GAO highlighted, and HHS concurs, that improvements 
to these system-by-system procedures are needed to improve the 
accessibility of public health data to TECs and bring clarity to HHS 
agency processes for obtaining data.
    Per GAO's recommendation, CDC and IHS are each developing 
centralized guidance for TECs on how to submit data requests and to 
establish written agency procedures for reviewing and responding to 
these requests. HHS expects to report progress to GAO on guidance and 
data access for TECs in September 2022.

    Question 5. Mr. Figueroa, will CDC and IHS develop written guidance 
for Tribal Epidemiology Centers on how to request data? If not, what is 
preventing CDC, IHS and HHS from developing standardized guidelines for 
Tribal Epidemiology Center requests for data sharing?
    Answer. Yes. As part of their report, GAO recommended that CDC and 
IHS develop guidance on how TECs should request data. We appreciate 
GAO's careful examination of Tribal access to epidemiological data, and 
HHS, IHS, and CDC are committed to implementing GAO's recommendations 
and continuing to strengthen our data sharing relationships with TECs 
and Tribal jurisdictions.

    Question 6. Mr. Figueroa, how many requests for data held by the 
Secretary has HHS, CDC, and IHS received from Tribal Epidemiology 
Centers? How many of these requests from Tribal Epidemiology Centers, 
Tribes, or Tribal organizations were approved, denied or delayed? 
Please specify for each category including time for resolution of a 
request.
    Because TEC requests can come to CDC through many routes and be 
sent to individual programs within CDC, CDC does not have a centralized 
log of TEC requests for CDC epidemiological data. CDC will be 
developing and launch a centralized, online data request form for 
federally-recognized tribes and TECs this summer. CDC will track 
responses to those requests.
    Historically, IHS has received infrequent formal requests from TECs 
using public health authority for access to IHS data held centrally 
(average of 1.8 requests per year from 2011-2021). The already 
established IHS EDM and access mechanism for TECs permits broad access 
to aggregated IHS EHR data, which encompasses a majority of data held 
by IHS and can be useful for public health activities. While IHS plans 
to implement a formal tracking system for data requests received from 
TECs in light of the increased interest in TEC access to epidemiologic 
data, tracking information currently available for historical requests 
is incomplete and does not capture timing of requests or the timing for 
adjudication.
    Since 2012, IHS has received the following numbers of formal data 
requests from TECs to access public health data either held within the 
IHS EDM or from other centrally collated IHS data sources to support 
special projects:

   EDM requests \3\: 10

    \3\ This number represents the initial requests by TECs for access 
to the EDM resulting in establishment of formal data sharing contracts 
with the IHS that permit ongoing access to EDM data.

---------------------------------------------------------------------------
   Special projects \4\: 8

    \4\ Special projects generally include but are not limited to 
requests for personally identifiable patient information to permit data 
linkage with other public health data sources, including established 
public health data sets maintained by other public health authorities 
(i.e., state health departments).

---------------------------------------------------------------------------
   Total requests: 18

    Status of IHS Data Requests

   EDM requests: 10 of 10 approved

   Special projects:

          --5 of 8 approved
          --2 remain in development
          --1 deferred and awaiting resubmission

    Question 7. Mr. Figueroa, specifically, how has the director of CDC 
provided technical assistance to all 12 Tribal Epidemiology Centers and 
Tribes to facilitate the transfer of health data?
    Answer. CDC continues to directly engage TECs to provide technical 
assistance regarding access and analysis of COVID-19 data. CDC staff 
assigned to work on COVID-19 case surveillance data communicate 
directly with TECs by answering inquiries, participating in TEC 
Director calls, and sharing information about the data. CDC staff held 
several calls with TECs, both one on one and group calls to answer 
questions and support use of the data. In addition, through CDC's 
COVID-19 Emergency Operations Center State, Tribal, Local and 
Territorial Task Force's Tribal Support Section, additional technical 
assistance was provided including during meetings and by email.
    CDC has also engaged TECs through the Council of State and 
Territorial Epidemiologists' (CSTE's) Tribal subcommittee to both share 
what COVID-19 data are available and guide the TECs on how to access 
those data. Additionally, CDC has used this channel as a means to allow 
TECs to share how data sharing efforts for COVID-19 and public health 
data can be improved.
    CDC has provided more than $3 million in data modernization funds 
directly to Tribal recipients. These investments in data 
infrastructure, data upskilling for the public health workforce, and 
electronic case reporting directly to Tribal organizations are a 
critical step in harnessing better data to improve health outcomes in 
AI/AN communities.
    From FY 2020-2021, CDC provided approximately $153 million to 346 
Tribal recipients through the Supporting Tribal Public Health Capacity 
in Coronavirus Preparedness & Response grant. In the first year, many 
recipients invested in activities related to surveillance, 
epidemiology, and health information technology.
    The Tribal Epidemiology Centers Public Health Infrastructure 
(TECPHI) program is one example of CDC's approach to address the data 
gap by investing in data infrastructure. A recent evaluation of the 
first three years of the cooperative agreement showed for example that 
TECs put into place 194 new or expanded data sharing agreements, 
providing access to more than 200 datasets. These agreements allowed 
TECs to provide daily or weekly COVID-19 situational reports and create 
data dashboards so Tribal leaders and community members could access up 
to date and relevant information not available elsewhere.

   TECs assisted on the development of Community Health 
        Assessments or provided training to Tribal staff on how to 
        access, process and compile data into community health 
        assessments to understand communities' current health statuses, 
        priorities, needs, and issues.

    In 2022 this important work will continue. CDC recently competed a 
new Notice of Funding Opportunity for the second iteration of TECPHI 
(2022-2027). The purpose of this NOFO is to strengthen the public 
health infrastructure and capacity of TECs and that of the Tribes and 
Urban Indian Organizations TECs support to effectively identify and 
address underlying social determinants of health, reduce persistent 
health disparities, and improve the overall health and wellbeing of 
American Indian and Alaska Native communities. CDC anticipates making 
up to 13 awards ranging from $300,000 to $600,000 for data 
infrastructure development including, implementing plans to improve 
data quality and data systems for AI/AN populations. The anticipated 
award start date of the new five-year cooperative agreement is 
September 30th, 2022.
    CDC also provides continuing education to support training 
capabilities in the public health workforce and has worked to ensure we 
meet the needs of Tribal partners. Through CDC TRAIN, a national system 
used by affiliate member organizations to manage and share public 
health trainings, CDC educated more than 9,800 learners in the Indian 
Health Service (6,270) and Tribal health sites (3,614) in fiscal year 
2021. Through Training & Continuing Education Online, CDC provides 
access to CDC educational activities for continuing education serving 
more than 15,900 learners at the Indian Health Service (12,661) and 
Tribal health sites (3,288) in fiscal year 2021.
    CDC also provides continuing education to support training 
capabilities in the public health workforce and has worked to ensure we 
meet the needs of Tribal partners. Through CDC TRAIN, a national system 
used by affiliate member organizations to manage and share public 
health trainings, CDC educated more than 9,800 learners in the Indian 
Health Service (6,270) and Tribal health sites (3,614) in fiscal year 
2021. Through Training & Continuing Education Online, CDC provides 
access to CDC educational activities for continuing education serving 
more than 15,900 learners at the Indian Health Service (12,661) and 
Tribal health sites (3,288) in fiscal year 2021.

    Question 8. Mr. Figueroa, how has the TECPHI helped to address the 
data infrastructure concerns that have prevented HHS from sharing the 
health data that Tribes and Tribal Epidemiology Centers are entitled to 
under federal law?
    Answer. CDC's Tribal Epidemiology Centers Public Health 
Infrastructure (TECPHI) cooperative agreement (co-ag) builds public 
health capacity to promote health and prevent disease in American 
Indian/Alaska Native communities and to address the data gap for TECs 
and the tribal communities TECs serve. CDC supports the 12 TECs and one 
Network Coordinating Center. The Network Coordinating Center 
coordinates the evaluation of this initiative and provides project 
organization, logistics, and communication across the TECs.
    Activities in the current TECPHI 5-year cycle (fiscal years 2017-
2021) fall under three strategies:

    1. Strengthen Public Health Capacity and Infrastructure

   Collect and monitor data on health status objectives of 
        tribes, Tribal organizations, and urban Indian organizations 
        (UIOs).

   Evaluate delivery and data systems that impact Indian 
        health.

   Assist tribes, Tribal organizations, and UIOs to determine 
        health status objectives and services needed to meet those 
        objectives.

   Provide technical assistance to Tribes, Tribal 
        organizations, and UIOs to effectively apply surveillance data 
        and epidemiology to determine local health priorities and to 
        plan and monitor interventions to address them.

   Cultivate multi-sector collaborations at area tribe, state, 
        and federal levels.

    2. Implement Activities to Improve Effectiveness of Health 
Promotion and Disease Prevention

   Identify public health priorities by conducting or using 
        community health assessments or other available data.

   Identify community strengths, resources, and needs.

   Develop and support implementation of culturally relevant 
        evidence-based activities to address identified needs.

   Evaluate area and Tribal efforts to address chronic diseases 
        and other priority health conditions

    3. Engage in Sustainability Activities

   Identify possible sources for financial support that align 
        with program priorities.

   Create a plan to sustain program efforts after grant period 
        ends.

    Results from the recently released Year 3 TECPHI Progress Report 
found:

   Data Access--194 new or expanded Data Sharing Agreements 
        with TECs were put in place, providing access to more than 200 
        datasets.

          --All 12 TECs worked towards establishing new and/or 
        expanding current data sharing agreements (DSAs) and other 
        partnerships to improve monitoring of health status for the 
        tribes, Tribal organizations, and UIOs they serve. DSAs are 
        integral to providing sustained epidemiological support and 
        technical assistance (TA) and have become increasingly 
        important during the COVID-19 pandemic. Tribal leadership 
        depends on accurate data and timely information to make 
        decisions for the communities they represent.

          --Through these agreements, TECs were able to provide daily 
        or weekly COVID-19 situational reports and create data 
        dashboards so Tribal leaders and community members could access 
        up to date and relevant information not available elsewhere.

          --Increased access to data for tribes and linkages to improve 
        race classification.

   Technical Assistance--TECs fulfilled more than 1,700 
        technical assistance requests from tribes and UIOs, with 
        approximately one-third of the those involving accessing, 
        collecting, analyzing, and summarizing COVID-19 data. Through 
        these efforts:

          --Tribes and UIOs were able to access more and better-quality 
        data to support their health priorities and COVID-19 response 
        efforts. TECs:

            *Conducted Tribal-specific rapid COVID-response capacity 
        assessments and provided reports to 10 tribes for the 
        communities to make informed decisions

            *Developed a Tribal data toolkit through the Tribal data 
        users workgroup

            *Supported COVID-19 case investigation and contact tracing 
        for Tribal and IHS clinics

          --TECs assisted on the development of Community Health 
        Assessments or provided training to Tribal staff on how to 
        access, process and compile data into community health 
        assessments to understand communities' current health statuses, 
        priorities, needs, and issues.

   Trainings--In the first 3 years of TECPHI, TECs provided 
        over 560 trainings, including trainings for tribes, Tribal 
        organizations and UIOs on data systems, grant writing, 
        strategic planning, and sustainability planning.

          --Divisions in CDC's National Center for Chronic Disease 
        Prevention and Promotion provide multiple trainings for TECs 
        around data systems, data visualization and analysis, and data 
        access.

   Subawards--In the first 3 years of TECPHI, TECs provided 70 
        subawards to tribes and UIOs to support Tribally identified 
        activities and capacity building efforts.

    In addition, CDC provides regular TA and support to TECs. The Year 
3 Progress Report found: TECPHI Program awardees appreciated the 
consistent support and communication from the CDC, especially while 
TECs balanced routine services and COVID-19 response work. Monthly 
meetings with the CDC provided opportunities to address challenges and 
barriers as they became apparent, and enhanced the collaborative nature 
of the award. These regular meetings enabled the CDC to connect TECs 
and organizations engaged in similar projects and facilitate 
connections with subject matter experts.
    CDC looks forward to continuing supporting the public health 
infrastructure and capacity of TECs, Tribes, and Urban Indian 
Organizations in the new round of TECPHI (2022-2026) that is set to 
start in August 2022.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Ben Ray Lujan to 
                           Darin M. Prescott
Tribal Health Data Improvement Act
    Question 1. Mr. Prescott, you said in your testimony that Tribal 
Epidemiological Centers were limited during the pandemic because of lag 
time in accessing data and not being able to get data directly from the 
CDC. Instead, many Tribal Epidemiology Centers had to rely on state 
partners to provide data. When making public health decisions, what 
were the impacts of not having timely access to data about your Tribe? 
What did delays in data access mean for you? Did relying on state 
partners help or hinder timely access to public health data?
    Answer. Early in the pandemic there was a lot of time spent trying 
to obtain data to make decisions for the welfare of our community. We 
erred on the side of caution by closing our casino and implementing a 
mask mandate as well as a travel ban. While these interventions are not 
necessarily specific to Lower Sioux Indian Community, these delays in 
access to data meant we had to either follow our county or regional 
guidelines which are not always in sync with our beliefs and 
interventions. Without having data, it made decisionmaking very 
challenging as our tribal citizens are also savvy to compare and 
contrast the decisions made in comparison with the county and 
municipalities jurisdictions. Relying on State data was also difficult 
due to the limitations on demographic collection of tribal citizenship 
or AI/AN tracking. Essentially, the ownership of patient tribal 
identification was placed on the patient to identify at AI/AN and their 
affiliation with the Lower Sioux Indian Community. Most tribal citizens 
were not aware of the need to declare their citizenship or were not 
asked.

    Question 2. Mr. Prescott, why is receiving public health data from 
the state not an adequate substitute for direct, timely access to HHS, 
CDC and IHS data?
    Answer. As a tribal nation, we work on a government-to-government 
system. HHS, CDC and IHS are our federal partners and have an 
obligation to tribes to provide timely data. Data collection among 50 
states is inconsistent and cannot be detailed based on this experience. 
There is also variations between State and Tribal relationships 
depending on the tribe. States oftentimes assume a paternalistic 
approach to tribes. Data ownership is then one of the parental 
bargaining tools used in the relationship between the State and Tribes.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Brian Schatz to 
                           Hon. Lebaron Byrd
    Question 1. The Department of the Interior testified that it 
intends to respond within ``weeks, not months,'' to two court decisions 
finding Interior's bar on the opportunity to re-petition under the 2015 
Part 83 regulations was arbitrary and capricious. You testified that 
you believe the MOWA Band would be a strong petitioner under the 2015 
regulations. If the Department of the Interior were to reverse its 
position and allow previously denied applicants the ability to re-apply 
for federal acknowledgement, would the MOWA Band of Choctaw Indians 
(MOWA) re-petition the Department of the Interior?
    Answer. For the reasons noted below, the MOWA Band of Choctaw 
Indians (MOWA) are not interested in waiting for the Department of the 
Interior (DOI) to change its regulations to accommodate petitioners 
wishing to re-petition.
    For the DOI to change its position, the DOI must change its 
regulations, which is a lengthy process requiring multiple public 
engagements by the DOI. Should DOI make this move, it would need to 
propose a rule change and present that rule change for tribal 
consultation. That process would likely require more than a year to 
complete. The proposed rule change would then need to be presented 
through the DOI's normal rulemaking procedures, which would likely 
require an additional up to two years to complete.
    Should the rule change be presented, it is highly likely that some 
tribes and other entities (states, local jurisdictions, and even 
private parties) will file legal challenges under both the APA and the 
U.S. Constitution. Such litigation could be expected to take as long as 
4 to 6 years if appeals of the rule changes are taken to the U.S. 
Supreme Court.
    Thus it could be as long as 10 years before the newly adopted rules 
and procedures would be in place to resume hearings.
    If the DOI were to successfully complete a rule change, the DOI 
would be required to determine how to address the review of previously 
denied petitioners. They could not simultaneously stop reviewing those 
petitions currently in the pipeline in order to begin hearing re-
petitions. Given the documented opinions of the DOI, there is a 
likelihood that re-petitions would be positioned after the current 
petitions of tribes awaiting their first hearing.
    According to the Congressional Research Service (CRS), in a report 
issued February 26, 2020, officials with the DOI are of the opinion 
that re-petitioning is unfair to the current petitions awaiting a 
hearing. As a result of this statement, it is unlikely that a re-
petition will gain a favorable result.

        ``According to DOI, ``allowing for re-petitioning by denied 
        petitioners would be unfair to petitioners who have not yet had 
        a review, and would hinder the goals of increasing efficiency 
        and timeliness by imposing the additional workload associated 
        with re-petitions on the Department, and OFA in particular.''

    According to information published by the DOI on their website, 
during the past 40 years only 18 petitions have gained favorable 
judgement by the DOI. During that same timeframe, DOI records indicate 
34 petitions have been denied. As a result, over the past 40 years the 
DOI has only averaged issuing final determinations for approximately 
one petitioner per year. In consideration of the DOI information 
published in the CRS in 2013 there were 356 petitions awaiting a 
hearing at that time. With the DOI hearing history of one case per 
year, the current petitions awaiting hearings, without any additional 
tribes added could take more than 300 years to come up for 
consideration. If re-petition hearings were shifted to the back of the 
line, the simple math indicates the likelihood of taking 350-400 years 
for those re-petitions to be heard.
    Additionally, even if the MOWA Choctaws were to be allowed to re-
petition on the promise of a speedy review, we have no confidence that 
our petition would receive the consideration it deserves. Over the 
nearly 44 years that the acknowledgment regulations have been in place, 
the DOI has changed the rules several times with each change resulting 
in new hurdles and fewer tribes being recognized.
    Officials with the DOI, are very similar with those leaders of 
other government agencies in that they prefer to have finality to their 
decisions. This position is clearly indicated in their response to the 
CRS noted above. As a result, any re-petitioner, including the MOWA, 
that reappears before the same agency officials is unlikely to receive 
a fair review leading to a change in decision after having been denied 
by those same officials on the original petition.
    Since submission of our original petition, the following chiefs, 
council members and tribal leaders have passed on: Galisneed Weaver, 
Bennett Weaver, Cleve Reed, Mary Taylor, George Snow, Verma Reed, Viola 
Campbell, Douglas Lofton, Grover Byrd, Josephine Rivers, Prentiss 
Taylor, Carl Snow, Leon Taylor, Murphy Reed, and Martha Evans. Many 
other of our elders have passed waiting on our just and due 
recognition. We can easily foresee review of re-petitions taking 
decades to complete, if not centuries. As the result of the continued 
delays, even more of our elders will have died before the application 
would be heard again.
    As the number of these leaders pass away, more of the knowledge of 
our tribal history is lost. We also continue to have no faith in the 
DOI process. The MOWA are not interested in having another generation 
of leaders and elders pass on, while we wait for our recognition.
    This in itself stands as a reason we do not feel it is in the best 
interest of our tribe to await a re-petition hearing.

    Question 2. You and former leaders of MOWA testified before this 
Committee and the House Natural Resources Committee about the many 
shortfalls in the Interior Department's federal acknowledgement 
process. Specifically, former Chief Framon Weaver submitted testimony 
in 2012 that ``genealogical evidence . must be dismissed as a primary 
factor in federal recognition decisions.'' Does Chief Weaver's 
statement reflect the MOWA's current position?
    Answer. Chief Weaver's statement must be read in context in order 
to understand his intended opinion.
    In his statement, he offered several suggestions to the Committee 
concerning key points to be considered when determining whether a 
tribal community should be considered ``legitimate.'' With reference to 
genealogical evidence, such as that which the Office of Federal 
Acknowledgment often uses as determinative of the ``legitimacy'' of a 
tribal community, Chief Weaver was pointing out the unreliability of 
federal census records, particularly in the South and East where binary 
racial laws prevented many Indian persons from being recorded as 
Indian.
    As I noted in my testimony, the failures of federal officials early 
on, and the commission of blatant fraud against the Indian communities, 
including that of the MOWA Choctaw, makes reliance on federal census 
records completely untrustworthy. Their actions of taking advantage of 
Native Americans who had not been educated in the legal terms of other 
races, resulted in many Indian persons, including most MOWA ancestors, 
not receiving the land that had been promised to them in the treaty 
agreement. As a result of the actions of the federal and local agents, 
the official names of our ancestors and many others were never recorded 
in federal land records.
    Another point made by both Chief Weaver and myself relates to our 
opinion that key factors in determining the existence of a 
``legitimate'' tribal community should include the programs in a 
community that identifies the culture of those communities. In 
determining the legitimacy of an Indian community the records used by 
all government agencies during the time in question are of great 
probative value and should play a positive role in determining the 
``legitimate'' identity of a community. A great example is the school 
system in the MOWA communities. For more than 150 years, Indian 
children were the victims of racist educational and political leaders 
who refused to allow Indian children to attend schools with either 
whites or blacks.
    For decades political leaders maintained three different school 
systems, one for white children, one for black children and another for 
Indian children. As a result, the consideration of having separate 
school systems, cultural commonalities, uniquely functioning 
communities, land tenure customs, among other programs should play a 
pre-imminent role in the determination of the genealogical records.
    Written records tying persons to such unique tribal communities is 
ultimately important for a tribe to determine its citizenship. However, 
it should not be the only determinative factor of whether a tribal 
community existed, but rather each of the items noted previously should 
play a role.

                                  [all]