[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
=======================================================================
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
-----------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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]